or friend, and is properly maintained, he cannot bind himself to a stranger for necessaries. Thus, where an action was brought for ornamental clothes, sold to an infant, who lived with her mother and was decently provided for by her, the court decided that the plaintiff could not recover; "for no man," says Mr. Justice Gould, "shall take upon him to dictate to a parent, what clothing the child shall wear, at what time they shall be purchased, or of whom." And where a parent, &c., places an infant at board, or at school, as the credit is given to the parent, &c., the infant is not liable.❜

Before a tradesman trusts an infant for apparent necessaries, he ought to inquire whether he is provided for by his parents or friends. And he is bound to ascertain the infant's real situation in life, and not to rely on appearances. therefore he furnish articles, which would be necessary, if the infant were not already supplied by his parents, or if, confiding in false appearances, he furnish articles too expensive or numerous for the infant's real condition, he is not entitled to recover pay for them. But if an infant furnish a tailor with cloth for a suit of clothes, and employ him to make them, and provide the trimmings; the tailor can recover pay for his labor, &c., although the clothes are not suitable to the infant's rank and condition.*

3

Goods furnished to an infant trader are not necessaries, although he gain his living by trade. But for such part of

1 2 Bl. Rep. 1325, Bainbridge v. Pickering; S. P. 16 Mass. 31; 9 Johns. 141, Wailing v. Toll; 2 Paige, 419, Kline v L'Amoureaux; 2 McCord Ch. 16, Edwards 2. Higgins.

2 Aleyn, 94, Dunscombe v. Tickridge; Bac. Abr. Infancy and Age, I. 1 ; 1 Com. on Cont. 158.

3 Peake's Rep. 229, Ford. v. Fothergill; 1 Esp. Rep. 211. S. C; 2 Paige, 419; 6 Simons, 465, Mortara v. Hall.

4 Latch, 157, Delaval v. Clare; Noy, 85. S. C.

5 Cro. Jac. 494, Whittingham v. Hill; 2 Strange, 1083, Whywall v. Champion; 1 Scott, 459.

goods thus furnished, as he uses as necessaries in his family, he is liable.' Labor, &c., for an infant mechanic, on articles to be furnished to his customers, is not within the law of necessaries."

In a case before Mr. Baron Clarke,' he ruled, that an infant was liable for the price of sheep bought to stock a farm, in which he had been set up. Such is the Scotch law, but not the law of England, nor of this country.

In the case of Ellis v. Ellis, it was decided, that money lent to an infant, for the purpose of buying necessaries, cannot be recovered of him. In this case, it appears, from some of the reports of it, that the court held, that if the money were actually expended for necessaries, the infant would be chargeable. But the weight of authority clearly is, that an infant is not liable at law for money lent for this purpose, and actually thus appropriated. The contract arises upon the lending, and as is said by the court," "the law knows of no contracts, but what are good or bad at the time of the contract made; and not to be one or the other according to a subsequent contingency." The lender, however, is entitled to relief in chancery."

Whether articles furnished to an infant are of the classes, which are necessaries suitable to his condition, is a question of law; whether they are actually necessary, and of reasonable prices, is a question of fact; "our being judges of the

1 1 Car. & Payne, 94, Tuberville v. Whitehouse.

22 Esp. Rep. 480, Dilk v. Keighley.

3 Mentioned in Bull. N. P. 154; Onslow's N. P, 150,

4 Reeve's Dom. Rel. 234; 2 Nott & M'Cord, 525,

5 5 Mod. 368, S. C. 12 Mod. 197; 1 Ld. Raym. 344; 3 Salk. 197.

6 See also Bull. N. P. 154; 3 Salk. 196, 197.

7 10 Mod. 67.

8 1 Salk. 386, Earle v. Peale; Ib. 279, Darby v. Boucher; 2 Esp. Rep. 472, n., Proubart v. Knouth; 1 Com. on Cont. 161; 1 Selwyn's N. P. (1st ed.) 114, 115; 1 P. W. 559.

92 Evans's Pothier on Obl. 26; 1 P. W. 558, Marlow v. Pitfield; Reeve's Dom. Rel. 230.

necessaries," say the court, in one case,"

1

"is to the nature

of the thing, not to the particulars; that indeed must be tried by the jury." "

3

In one case, it is said arguendo, that an infant cannot, either by a parol contract, or a deed, bind himself, even for necessaries in a sum certain; for, should an infant promise to give an unreasonable price for necessaries, that would not bind him; and therefore it may be said, that the contract of an infant for necessaries, quatenus a contract, does not bind him; but only since an infant must live, as well as a man, the law gives a reasonable price to those who furnish him with necessaries. And such seems to be the spirit of the modern decisions.*

The infant, says chancellor Kent, cannot be precluded, by the form of the contract, from inquiring into the real value of the necessaries furnished; and is not bound to pay more than they are worth. Thus, an infant is not liable on an account stated; nor on a bill of exchange accepted; nor on a negotiable promissory note, given for necessaries." Judge Reeve supposes, that an infant is not liable to a suit on any special contract for necessaries, where the con

1 Carter, 216.

5

6

2 See as to this point, 3 Day, 37, Stanton v. Wilson; 1 Bibb, 519, Beeler v. Young; 1 McCord, 572, Glover v. Ott; Comyns's Digest, Enfant, B. 5; Cro. Eliz. 583. See also 1 M. & S. 738, Maddox v. Miller; 1 Scott, 458, Lowe v. Griffith. 3 10 Mod. 85.

4 2 Kent's Comm. 196; 1 Southard, 101; 2 Nott & McCord, 525; 3 New Hamp. Rep. 348; Reeve's Dom. Rel. 229; 1 Bibb, 519.

5 2 Lil. Ab. 67; Latch, 169, Wood v. Whitehouse; Noy 87, S. C; 1 D. & E. 40, Trueman v. Hurst; Ib. 42, n. Bartlett v. Emery; 2 Stark. Rep. 33, Ingleden v. Douglass.

61 Campb. 552, Williamson v. Watts.

710 Johns. 33, Swasey v. Vanderheyden's Adm'r. ; 1 Southard 100, Fenton v. White; 6 Yerg. 1, McMinn v. Richman; 3 New Hamp. R. 348, McCrillis v. How. In Derbose v. Wheddon, 4 M'Cord, 221, the decision is the other way; the note being in the hands of the payee. See Bingham on Inf. &c. 89, 90.

8 Dom. Rel. 230. See also 13 Pick. 1.

tract is of such a nature, that by the rules of law as applied to adults, the consideration cannot be inquired into; as a. bond, either single, or with a penalty, a negotiated bill of exchange, or promissory note, &c. Whether he be liable on a promissory note not negotiable, has not been decided. Nor is the point of much practical importance, for the payee may always join a count for goods sold, &c., and thus recover what is justly due.'

2

It is laid down in all the old books, that an infant is bound by his single bill given for necessaries. Mr. Chitty doubts whether this is now law. That instrument is almost entirely disused in England.

Besides, the consideration for

5

which it was given was originally subject to inquiry, but was subsequently not open to discussion. So the items of an account stated were formerly held to be conclusive on the parties. Yet, though they are, in modern times, open to correction, still an infant is held incompetent to state an account, so as to render himself liable on an insimul computassent. Mr. Chitty's doubt, therefore, as to an infant's liability on a single bill, seems to be well founded. It would indeed be most extraordinary, if he should be held liable, since the law does not permit an inquiry into the consideration of the bill, while he is held not liable on an account stated, although he is allowed to investigate and contest the items which compose it.

From the analogy of an account stated, and a promissory note not negotiable given for necessaries, it would seem, that the latter cannot be the foundation of a suit against an in

1 See Kyd on Bills, 29; Chitty on Bills, 24; Bayley on Bills, 33. Kyd and Chitty differ in opinion, and Bayley expresses no opinion on the point. 2 1 Levinz, 86, Russell v. Lee, adjudged.

3 Chitty on Cont. 33.

4 1 Campb. 553, n.

5 Reeve's Dom. Rel. 231. See the remarks of chief justice Kirkpatrick, 1 Southard, 101, that the ground of the action is the providing of necessaries, and not the bill.

6 1 Durnf. & East, 42.

fant. Besides, in some of the American cases just cited, where a negotiable note was held not to be recoverable, the suits were by the payee, and the consideration was as much open to inquiry, as if the notes had not been in a negotiable form. It is therefore to be inferred, that their negotiability was not the sole ground of the decisions.

An infant's penal bond, though given for necessaries, has, in England, always been held to be void.' Probably, it would be so held in this country, and form an exception to the rule which we have before stated. The value of the consideration for which it is given cannot be disputed. And, though no more than the sum mentioned in the condition could be recovered; yet even that sum may be as erroneous or extravagant, as in the case of a note or bill of exchange, or account stated.

The analogy, therefore, of a bond for necessaries, with other special promises to pay for them, seems to entitle the obligee to treat such a bond as void, and to sue on the original promise. But it is not known that this question has been raised in any of the American courts. There is no

harm in treating other penal bonds of an infant as voidable only. He may avoid or pay them at his election, or make terms of payment. For necessaries he must pay, but he should not be compelled to pay too much.

T. M.

ART. II.-AT WHOSE RISK A THING SOLD IS DURING THE INTERMEDIATE TIME BETWEEN THE CONTRACT AND THE DELIVERY.

[This article constitutes the fourth part of Pothier's treatise on the contract of sale, a translation of which, by one of the editors of this journal, is now in press.]

It is a principle, established in the Title of the Digest, de periculo et commodo rei vendita, (18, 6), that, as soon

1 Cro. Eliz. 920, Ayliffe v. Archdale; Moore, 679, S. C.; Co. Litt. 172 a.