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W.Pole, 4 B.&Ald. 1 : Grant ?'.Vaughan, writing is necessary in order to transfer

3 Burr. 1516, where a draft by a mer- it. Clark r. Farmers Man. Company,

chant on his hanker was held negotiable. 15 Wend. 256 ; Parke, Baron, in Hib-

This case distinctly confirms the case blewhite r. McMorinc, 6 Mces. & Wels.

of Miller ?■. llacc. " Sec Lickbarrow v. 200.
Mason, 5 T. II. G83, respecting bills of

[250]



CII. XV.]



INDORSEMENT.



241



tenor and of his loss, sustain an action at law, because no
finder can give good title to any holder by a bond fide sale to
him. {p) But if the paper be negotiable and indorsed in
blank, or if it be payable to bearer, then the promisor or in-
dorser may be held liable to an innocent holder for consider-
ation. It follows, therefore, that the promisor or indorser
should not be liable to the loser, without sufficient indemnity
to him against the possible demand of such innocent pur-
chaser, [q] But courts of law find it difficult to require
such indemnity, or to judge of its sufficiency ; and there-
fore, generally at least, they turn the loser over to courts of
equity, in which the defendant may be properly secured by
adequate indemnity ; and then the action will be main-
tained, (r)



(p) Wain y. Bailey, 10 Ad. & El. 616.

(q) Pierson v. Hutchinson, 2 Campb.
211; Hansard r. llobinson, 7 B. & C.
90 ; Clay v. Crowe, 18 E. L. & E. 514 ;
Davis r."Dodd, 4 Taunt. G02 ; Toole v.
Smith, 1 Holt, 144; Rowley v. Ball, 3
Cow. 303; Kirby v. Sisson, 2 Wend.
550. But evidence is admissible to
show that the note has been actually
destroyed, or that it cannot come to the
hands of a bond fide holder. Rolt v.
Watson, 4 Bing. 273 ; Rowley v. Ball,
supra. The case where a bank bill is



cut in halves and one of them is lost,
and payment sought for the other,
would seem to stand upon the same
grounds as tliat of a lost negotiable
instrument. Mayor u. Johnson, 3 Camp.
324. But see Bullet v. Bank of Penn-
sylvania, 2 Wash. C. C. 172; Patton
V. State Bank, 2 Nott & McCord. 464 ;
Hinsdale v. Bank of Orange, 6 Wend.
378.

(r) Pierson v. Hutchinson, 2 Campb.
211; Lord Eldon, in Ex parte Greenway,
6 Yes. 812.

[251]



242 THE LAW OF CONTRACTS. [bOOK I.



CHAPTER XVI.

INFANTS.

In general, all persons may enter into contracts; and when
a contract is made the law presumes the competency of the
parties. If, therefore, a party rests his action or his defence
upon his incompetency, this must be proved. (5) This incom-
petency may be absolute and entire, or limited and partial ;
in some cases a contract is void as to both parties, and in
others only as to one; in some cases void, and in others void-
able. We shall consider these questions as we proceed.

As the essence of a contract is an assent or agreement of
the minds of both parties, where such assent is impossible,
from the want, immaturity, or incapacity of mind, there can
be no perfect contract. On this ground rests, originally, the
disability of infants. We will first consider this class of dis-
abled persons.

SECTION I.

INCAPACITY OF INFANTS TO CONTRACT.

All persons are denominated infants, by the common law,
until the age of twenty-one. But in some parts of this coun-
try females reach majority, at least for some purposes,
at eighteen, {t) An infant, using the word in its common

(s) Jeune i-. Ward, 2 Stark. 326: ant must prove that he was still a minor

Leader v. Barry, 1 Esp. 353. Not only at the time of such ratification. Bay f.

is a defendant, v/ho sets up his infancy Gunn, 1 Denio, 108 ; Borthwick r. Car-

as a defence to his contract, bound in ruthers, 1 T. E. 648 ; Hartley v. Whar-

the first instance to prove his non-age ton, 11 Ad. & El. 934. — If the infant

affirmatively, but if to such a plea the leave the point in doubt, the defence is

plaintiff reply a new promise, after the not sustained. Harrison v. Clifton. 17

defendant bcceime of age, he may show a Law Jour. Ex. 233.
new promise at any time, (before the (t) Sparhawk v. Buell, 9 Yerm. 42,

suit was commenced,) and the defend- 79.

[252]



CH. XVI.] INFANTS. 243

meaning, that of a child who has not left its mother's arms,
cannot make a contract in fact; but most children who are a
few years old are capable of making a contract. And when
the law says that they are not capable until the age of
twenty-one, it is for their sake, and by way of protection
to them. If we keep this principle distinctly in mind it will
guide us through the intricacies of the law in relation to this
subject.

Thus, as a general rule, the contract of an infant is said to
be not void, but voidable. That is, he may, either during his
minority, or within a reasonable time after he becomes of
age, (u) avoid the contract if he will, or when he reaches the age
of twenty-one, if he sees it to be for his benefit, and chooses so
to do, he may confirm and enforce the contract. It has been
said that whatever contract the court can see and declare to
be to his prejudice, that will be pronounced void; and what-
ever contracts are not clearly to his prejudice, but'may be use-
ful, these will be held voidable. And in reliance on this prin-
ciple as a safe and sufficient rule, an infant's warrant of at-
torney authorizing a conveyance of his land, (/,') a confession
of a judgment against him, (iv) and his cognovit for the same
purpose, although the action was wholly for necessaries, (x)
or his appointment of an agent of any kind, (?/) his bond
with a penalty, or for the payment of interest, [z) a release by
a female infant to her guardian, [a) an infant's contract of
suretyship, {b) and his release of his legacy or his distributive

(u) It was settled by the case of (w) Saunderson w. Marr, 1 H. BI. 75 •

Zoucli V. Parsons, 3 Burr. 1794, that Bennett v. Davis, 6 Cow. 393; Waples

an infant cannot avoid his conveyances v. Hastings, 3 Harring. 403.
of land until he becomes of age. In (x) Oliver y. Woodroffe, 4 Mees &

lioof V. StaHord, 7 Cow. 179, it was Welsb 650

held that the same rule applied to a sale ( , y,, •^. Thomas v. Koberts, 16

of chattds; but m the same case, on Mees. & Welsb. 778.
error, 9 Cow. 626, the distinction was , , „ ,. i^- . „ ,.,r „ ^

maintained, that while he could not ^ (^l Baylis i-. Dineley, 3 M. & S. 477 ;

avoid a convevance of lands until he fj"",^*^'' ^'- ^^""^'T- ^.^'"-^ ^ S™"h,

was of age, he inigiit a sale of chattels. (^''"'"^ ^"^ i <-t.l^ock v. h erguson, 3 Des.

So also in Bool v. Mix, 17 AVend. 119, '*^ -

and in yiiipman v. Ilorton, 17 Conn. («) Fi'i'lge 'v- The State, 3 Gill &

481. See also Matthewson V. Johnson, Johns. 104.

1 Hofifman's Ciiancery, 560. bee post (l>) Wheaton v. East, 5 Yerg. 41, 61 ;

on thissuliject. Allen v. Minor, 2 Call, 70. But see

(v) Lawrence v. McArter, 10 Ohio, contra. Hinely v. Margaritz, 3 Barr,

37 ; I'yle, &c. v. Cravens, 4 Littell, 17. 423.

VOL. L 22 [253]



244



THE LAW OF CONTRACTS.



[book I.



share in an estate (c) have each been declared to be abso-
lutely void, (d)

The better opinion, however, as may be gathered from the
later cases, cited in our notes, seems to be that an infant's
contracts are none of them absolutely void, that is, so far void
that he cannot ratify them after he arrives at the age of legal
majority. Such, at least, is the strong tendency of modern
decisions, (e)

But the contract of an infant for necessaries is neither void
nor voidable. It is permitted for his own sake that he may
make a valid contract for these things, as otherwise, whatever
his need, he might not be able to obtain food, shelter, or rai-
ment. And the principles which govern this rule show plainly
that it is intended only for his benefit, and is regarded and
treated as an exception to a general rule.

The word necessaries, in relation to an infant, is not used
in a strict sense ; but the social position of the infant, his
means, and those of his parents, are taken into consideration.
Necessaries for him mean such things as he ought properly
to have, and not merely that which is indispensable to his life
or his comfort. It is difficult to lay down any positive rule
which shall determine what are and what are not necessa-
ries. Indeed there is no such rule. It may be said, how-
ever, that whether articles of a certain kind, or certain sub-
jects of expenditure, are or are not such necessaries as an



(c) Langford v. Frey, 8 Humphrev,
443.

(d) In Connecticut some contracts of
an infant arc made void by statute. Ko-
eers V. Ilurd, 4 Day, 57 ; JMaples v.
Wiglitman, 4 Conn. 376.

(e) The rule that an inftint's contracts
are void or voidable according as they
may be pronounced to he prejudicial or
useful, has been laid down, and recog-
nized by many respectable courts and
judges. See Keane v. Boycott, 2 H.
Bl. R. 513 ; Baylis r. Dineley, 3 Maule
& Sehvvn, 477, 481 ; Latt v. Booth. 3
Carr. &" Kir, 292; Vent v. Osgood, 19
Pick. 572 ; Lawson v. Lovejoy, 8 Grcenl.
405 ; Rogers v. Kurd, 4 " Dav, 57 ;
McGan r. Marshall, 7 Hump. 121;
Tridge v. The State, 3 Gill & Johns.
104; Ridgeley, v. Crandall, 4 Maryl.
435; Wlieaton i-. East, 5 Yerg. 41:

[254]



McMinn r. Richmonds, 6 Id. 9 ; Kline
V. Beebe, 6 Conn. 494 ; United States v.
Bainbridge, 1 Mason, 71, 82, and many
other cases. But it may be questioned
whether it is a sufficiently clear, certain,
and practical rule. The more recent
authorities incline to hold all. (or all
with a single exception,) an infant's
contracts to be ro/(/a/^/e merely, not void,
and that it is the privilege and right of
the infant, only (not. that of a court,) to
declare his contraots void. And the
rule itself, as alluded to in the text, and
sustained hj the older authorities, has
been declared unsatisfactory, liable to
many exceptions, and difficult of safe
application. See Fonda v. Van Home,
15 AYend. 631, 635; Breckenbridge's
Heirs r. Ormsby, 1 J.J. Marsh. (Ky.)
236, 241 ; Scott" i-. Buchanan, 2 Humph.
468: Cole v. Pennoyer, 14 111. 158:



CH. XVI.]



INFANTS.



245



infant may contract for, is matter of law, and for instruction
by the court ; but the question whether any particular things
come under these classes, and the question also as to quan-
tity^ are matters of fact for the jury to determine. (/) The
cases cited in the notes will show the views taken of this
question by various courts in England and in this country.
It seems to be certain that food, clothing, lodging, and need-
ful medicine, are such necessaries ; and the infant may con-
tract for them on credit, though he has ready funds in his
possession. (^^) So, proper instruction. (A) Necessaries for
an infant's wife may be validly contracted for by him; but
not if they be necessaries provided in view of marriage,
though his wife afterwards use them, {i) And it seems that,
as an incident to a marriage, which an infant may contract,
he is liable during coverture for the anti-nuptial debts of
his wife, [j) He is also liable to the same extent as an



Cummings v. Powell, 8 Texas, 80 ;
Parlce B. in "Williams r. Moore, 11 M.
& W. 256 ; 1 Am. Leading Cases, 103,
104. And sec note (/) p. 275.

(/) Bent V. Manning. 10 Verm. 225,
230"; Beeler v. Young, 1 Bibb, 519, 521 ;
Grace v. Hale, 2 Humph. 27, 29 ; Stan-
ton V. Wilson, 3 Day, 37 ; Phelps v.
"Worcester, 11 N. H. 51 ; Harrison v.
Fane, 1 Mann. & Grang. 550 ; Peters v.
Fleming, 6 Mees. & "\Velslj. 42 ; Burg-
hart V. Angerstein, 6 C. & P. 690 ; Tup-
per V. Cadwell, 12 Met. 559. This is
to be understood with some limitation
however, for the quantity of goods sup-
plied may be excessive, in which case,
if tlie jury give the plaintiff his whole
bill, their verdict may be set aside.
Johnson v. Lines, 6 Watts & Serg. 80.
So if they find a verdict for the plain-
tiff, contrary to the opinion of the court,
a new trial will be granted. Harrison
V. Fane, 1 Mann. & Grang. 550.

(17) Burghart v. Hall, 4 IMees. &
Welsh. 727.

(/<) And for some the term proper in-
struction might include a knowledge of
the learned languages, while for others
a mere knowledge of reading and writ-
ing may be sufficient. Alderson, B., in
Peters 'v. Fleming, 6 Mees. & Wclsb.
48. But a regular collegiate education
for one in the ordinary station and cir-
cumstances in life, has" been held in this
country not within the term " necessa-



ries." Middlebury College v. Chandler,
16 "Verm. 683. But a good "common
school " education ^ould be for every
one; such an education is essential to
the intelligent discliarge of civil, politi-
cal, and religious duties. Bot/ce, J., in
Middlebury College v. Chandler, 16
Verm. 686. Instruction in reading and
writing was held necessary, in Manby v.
Scott, 1 Sidcrfin, 112; and the reason
given was, for that it was for the benefit
of the realm tliat learning should be ad-
vanced. In Raymond v. Loyl, 10 Barb.
Sup. Ct. 489, Hand, J., says : — ■' It was
said on the argument that ' schooling '
is not a necessary. And INIr. Chitty
says, it seems a parent is not legally
bound to educate his child. Chit, on
Cont. 140. A parent is almost the sole
judge of what is necessary. But if a
parent is liable to a third person, I hope
it will never be decided that sending to
a common school, at a suitable season,
and to a reasonable extent, is not neces-
sarv, in this countrv."

(i) Turner Z-. Trisby, 1 Strange, 168.
See Rainsford v. Fenwick, 1 Carter,
215; Abell v. "Warren, 4 Verm. 149,
152; Beeler i-. Young, 1 Bibb, 519, 520.
And an infant widow is personally
bound by her contract for the funeral
expenses of her deceased husband, who
died leaving no assets. Chappie v.
Cooper, 13 M. & ^y. 252.

( ;■ ) Paris v. Stroud, Barnes's Notes,

[255]



246



THE LAW OF CONTRACTS.



BOOK I.



adult would be for necessaries supplied to his lawful child-
ren, (/t) In some cases, such things as horses, or regiment-
als, or watches, or even jewellery, are regarded as neces-
saries. (/) An infant cannot borrow money, so as to render
himself liable to an action for money lent, although borrowed
for and expended for necessaries ; because the law does not,
for his own sake, trust him with the expenditure, (in)



95; Roach v. Quick, 9 Wend. 238;
Butler i;. Breck, 7 Met. 164. But this
is to be understood only of such debts
as the wife was legally liable to pay at
her marriage.

(k) Dicta in Abell v. Warren, 4 Verm.
152; Bceler v. Young, 1 Bibii, 520.

(.') To be necessaries the articles
must be bond fide purchased for use, and
not for mere ornament ; they need not
be such as a person could noi do with-
out, but should be in quality and quan-
tity suitable for his real wants, and his
condition and circumstances in life.
The term includes his food, but not din-
ners, confectionery, fruit, &c., supplied
to his friend. Brooker i;. Scott, 11 M.
& W. 67 ; Wharton v. McKenzie, 5 Q.
B. 606. Also lodging and house rent.
Kirton v. Eliott, 2 Bulst. 69; Crisp v.
Churchill, cited in Lloyd v. Johnson, I
B. & P. 340; but not repairs upon his
house, although beneficial in themselves,
and necessary to save the building from
decay. Tupper v. Cadwell, 12 Met. 559 ;
nor food for his horses. Mason v. Wright,
13 Met. 306 ; nor the rent of a building
for carrying on a trade or manual occu-
pation. Lowe V. Griffiths, 1 Scott, 458.
Suitable clothing also comes within the
class of necessaries, but not suits of
satin and velvet with gold lace. Maka-
rell I'. Bachelor, Cro. Eliz. 583 ; nor
racing jackets. Burghart v. Angerstein,
6 C. & P. 690 ; nor cockades for an in-
fant captain's soldiers. Hands v. Slaney,
8 T. R. 578 ; although regimentals for
a volunteer, and livery forsm^h captain's
servant have been held otherwise. Id.;
Coates t'. Wilson, 5 Esp. 152. The fol-
lowing are examples of articles not gene-
rally " necessaries : " Horses, saddles,
bridles, liquors, pistols, ))owder, whips,
and fiddles. Beeler v. Young, 1 Bibb,
519; Glover v. Ott, 1 McCord, 572;
Rainwater v. Durham, 2 Nott & Mc-
Cord, 524 ; Grace v. Hale, 2 Humph.



27 ; Clowes V. Brooke, 2 Strange, 1101 ;
Harrison v. Fane, 1 Mann. & Grang.
550. A stanhope. Charters v. Bayn-
tun, 7 C. & P. 52. Coach hire. Hcdg-
ley V. Holt, 4 C. & P. 104. A chrono-
meter for a lieutenant in the navy, not
then in commission. BeroUes v. Ram-
say, Holt, 77. Balls and serenades.
Carter, 216. Counsel fees and expenses
of a law suit. Phelps v. Worcester, 11
New Hamp. 51. But as each case is
governed by its ow7i peculiar circum-
stances, the examples here given can
serve only as illustrations, and under
different circumstances would not neces-
sarily be binding precedents. Thus, as
we have just seen, horses are not gene-
rally necessary, but when an infant had
been advised to ride on horseback for
his health, a different rule was applied.
Hart V. Prater, 1 Jurist, 623.

(m) Smith v. Gibson, Peake's Add.
Cas. 52; Darby v. Boucher, 1 Salk.
279 ; Probart v. Knouth, 2 P^sp. 472,
note; Beeler v. Young, 1 Bibb, 519,
521 ; Earle v. Peale, 1 Salk. 387, 10
Mod. 67 ; Walker v. Simpson, 7 Watts
& Serg. 83, 88 ; Bent v. Manning, 10
Verm. 225, 230. It is otherwise in
equity. Marlow v. Pitfield, 1 P. Wms.
558. But money advanced to an offi-
cer, to pro ure the liberation of an in-
fant from an arrest on a debt for neces-
saries, may be recovered, it not being
strictly speaking money lent. Clarke v.
Leslie, 5 Esp. 28. So an infant is liable
for money paid at his request to satisfy
a debt wliich he had contracted for
necessaries. Randall v. Sweet, 1 Denio,
460. So if the infant give his note for
the necessaries, and another sign as
surety, and subsequently pay tlie note,
he may recover the amount of the in-
fant. Conn V. Coburn, 7 New Hamp.
368; Haine v. Tarrant. 2 Hill, (S. C.)
400.



[256]



OIL XVI.]



INFANTS.



247



SECTION II.

OF THE OBLIGATIONS OF PARENTS IN RESPECT TO INFANT
CHILDREN.



The obligation of the father to maintain the child is a^d
always has been recognized in some way and in some de-
gree, in all civilized countries. The infant cannot support
himself. Others must therefore supply him with the means
of subsistence ; and the only question is, whether the public
(that is, the State,) shall do this, or shall his parent. And
justice, equally with the best affections of our nature, answer
that it is the duty of the parent. But it is a very difficult
question how far this duty is made a legal obligation, by the
common law.

Jn England, after much questioning, and perhaps a tend-
ency to hold the father liable for necessaries supplied to the
child, on the ground of moral obligation and duty, (w) it



(n) In Simpson v. Robertson, 1 Esp.
17, (1793,) which is the earliest case on
this point, Lord Ketiyon said he had
ruled before, that if a tradesman col-
ludes with a young man, and furnishes
him with clothes to an extravagant de-
gree. thoiKjli the father rniyht have been
liable had they been to a reasonable extent,
the tradesman who gives credit to such
an extravagant degree shall not at law
be allowed to recover. Crantz v. Gill,
2 Esp. 471, (1796,) decided that if the
father gives the son a reasonable allow-
ance for his expenses, he is not liable
even for necessaries furnished to the
son. The presumption of liability was
rebutted by the allowance. But this
case seems to imply that such liability
exists in the absence of rebutting cir-
(fmnstanees. — In Urmston v. Newco-
mcn, 4 Ad. & El. 899, 6 Nev. & Man.
4.')4, (1836,) it was considered as a
doubtful question whether a parent was,
at common law, liable to pay a third
person, who furnishes necessanes to his
deserted child. Sir Jolin Campbell, At-
torney-General, arguendo, says, p. 903 ;
— " Then the question is "wliether a
father, if he desert his legitimate child,
be not liable in assumpsit to any one

22*



who provides food and clothing for it.
There is no express decision on the
point." Alexander, contra: — "The
supposed foundation of the defendant's
liability does not exist. It is not true
that by the common law a father is
bound to maintain his child." Lord
Denman, C. J., says: — " The general
question is important ; but the facts do
not raise it." And afterwards, " The
general question, therefore, which we
should approach with much anxiety,
does not arise." Littkdale, J. " The
general question does not arise." Pat-
teson, J. " I agree that the general
question does not arise." Coleridge, J.
" It is best to say nothing on the gene-
ral question. Eor the purpose of this
case, I will assume (what is not to be
understood as my opinion at present,)
that the general liability is as contended
bv the Attorney-General." — In Law v.
Wilkin, 6 Ad. & El. 718, (1837.) the
defendant's son was from home at
school, and appeared to be in want of
clothes, when the plaintiff supplied him.
When the boy went home, he took the
clothes with him, but did not wear
them. There was no evidence that the
father ever saw the clothes, or that he

[257]



248



THE LAW OF CONTRACTS.



[book I.



seems to be, on the whole, settled, that this moral obligation
is not a legal one ; and indeed it has been recently peremp-
torily decided that no such legal obligation exists in the case
of contracts made by the child for necessaries, (o) The



had any communication with the plain-
tiff before or after they were furnished.
The judge at 7}isi prius nonsuited the
plaintiff, thinking there was not sufh-
cient evidence to ao to the jiirt/ to charge
the defendant. The Court of King's
Bencli set aside the nonsuit, on the
ground that there was some evidence to
that effect ; and Lord Denmcm, C. J.,
who with his brethren the year before
had carefully and almost anxiously
avoided the question, in Urmston ?;.
Newcomen, now said: — "A father is
properly liable for any necessary provi-
sion made for his infant son." Little-
dale, Pcitleson, and Coleridge, JJ., made
no olijection to this dictum, although the
decision of the case did not require it. —
In Cooper v. Thillips, 4 C. & P. 581,
(1831.) Taunton, J., says : — " If the fa-
ther of a family lives at a distance from
the phice at which his children are, and
puts them under the protection of ser-
vants, I am of opinion that if any acci-
dent occurs to one of the children, even
from the carelessness of the servant, the
father of the family is bound to pay for
the medical attendance on such chiUi."

(o) In Baker v. Keen, 2 Starkie, 501,
(1819.) Abbott, C. J., said: — "A father
would not be bound by the contract of
his son, unless cither an actual authority
were proved, or circumstances appeared
from which such an authority might be
implied. Were it otherwise, a father,
who had an imprudent son, might be
prejudiced to an indefinite extent; it
was therefore necessary that some proof
should be given that the order of a son
was made by the authority of his father.
The question, therefore, for the consider-
ation of the jury, was, whetlier, under
the circumstances of the particular case,
there was sufficient to convince them
that tlie defendant had invested his son
with such authority. He had placed his
son at the military college at Harlow,
and had paid his expenses whilst he
remained there. The son, it appeared,
then obtained a commission in the army,
and, having found his way to London,
at a considerable distance from his fa-
ther's residence, had ordered rcgimen-

[258]



tals and other articles 'suitable to his
equipment for the East Indies. If it
had appeared in evidence that the de-
fendant had supplied his son with mo-
ney for this purpose, or that he had
ordered these articles to be furnished
elsewhere, the circumstance might have
rebutted the presumption of any author-
ity from the defendant to order them
from the plaintiff. Nothing however of
this nature had been proved ; and since
the articles themselves were necessary
for the son, and suitable to that situa-
tion in which the defendant had placed
him, it was for tlie jury to say, whether
they were not satisfied that an authority
had been given by the defendant." —
This was soon followed by Fluck v. Tol-
lemache, 1 C & P. 5, (1823,) before Bur-
rough, Justice of King's Bench. The
defendant's son was a cadet at Wool-
wich, the father living at Uxbridgc.
Upon being written to to pay the plain-
tiff's bill, which was the first knowledge
the defendant had of the transaction, he
said he had ordered no goods of the
plaintiff, and would not pay for any sup-
j)lied to his son. The latter was fifteen



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