So in an action of assumpsit for labor and medicines in curing the defendant of a distemper, nonage was pleaded by the defendant, and the plaintiff replied, necessaries generally. Upon demurrer to this replication it was objected that the plaintiff had not assigned in certain, how or in what manner the medicines were necessary; but the court adjudged the replication good. (Ib. Huggins v. Wiseman, Carth. R. 110.) The doctrine here stated shows that presumptions may be indulged in these as in all other cases of contract. So it has been held that if an infant comes to a stranger, who instructs him in learning and boards him, there is an implied contract in law, that the party should be paid as much as his board and schooling are worth, provided the condition of the infant was such as to make him liable for necessaries furnished to him. (Bac. Abr. Infancy, I 1, p. 134.) This shows that the contract of an infant may be implied as well as that of an adult. §73. The question of necessaries is regarded as a mixed question of law and fact. The court will decide whether the articles furnished come within the class of necessaries suitable to any one, . whether infant or adult, in the defendant's situation and condition of life; and should the court decide in the affirmative upon that proposition, then the jury are to judge and decide whether the particular articles furnished were actually necessary under the circumstances of the individual case. It is not easy in all cases to determine the respective functions of the court and jury in the trial of these questions; for it has been held that the court are sometimes judges of the quantity, as well as the quality, of the articles furnished. And, again, it has been decided that the jury are not always the sole judges of what is necessary and proper; and if they find a verdict contrary to the opinion of the court, a new trial will be granted. But, notwithstanding the difficulty in drawing a clear and well defined line of demarkation between their respective jurisdictions, the above rule as to the legitimate duties of the court and jury in these cases, will generally be found to be practically correct. There are several authorities tending to illustrate and establish this rule. (Bing. on Inf. 87, note 1, sub. 5. Peters v. Fleming, 6 Mees. & Wels. R. 42. Burghart v. Augustine, 25 Eng. C. L. R. 600. Wharton v. McKenzie, 48 ib. 606. Harririson v. Fane, 39 ib. 556. Stunton v. Willson, 3 Day's R. 37. Beebe v. Young, 1 Bibb's R. 19. Swift v. Bennett, 10 Cush. R. 436. Rent. v. Manning, 10 Vt. R. 225. Glover v. Ott, 1 McCord's R. 572.

Bouchett v. Clarey, 3 Brevard's R. 194. Phelps v. Worcester, 11 N. H. R. 51. Eckbert, Admr., v. Lines, 6 Watts & Serg. R. 80. Rundel v. Keeler, 7 Watts' R. 237. Grace v. Hale, 2 Humph. R. 27.)

§ 74. In an action brought against an infant, if the plaintiff put in a simple replication of necessaries to the defendant's plea of infancy; the defendant is not bound to prove his infancy, for the fact of infancy is admitted by the replication; and the burden of proving the articles necessaries is, of course, always on the plaintiff. It has been supposed, from the language of the court in some cases, that, in order to make out a prima facie case, the plaintiff must not only show that the articles came within the class of necessaries, suitable to a person in the position, condition and circumstances of the defendant, but that he must also show the infant's actual, or, at least, apparent want, necessity or destitution, at the time the articles were furnished. It is probable, however, that the rule is not thus strict, and that the replication of "necessaries suitable to the then estate, degree and condition in life of the defendant," throws on the plaintiff the burden of proving only the infant's degree, fortune or occupation, and standing in life, and that the articles were, in their nature, quality and quantity, necessary and suitable to every one in that situation and condition. In one case, decided before a full bench in England, Baron Parke gave an opinion obiter, "that if prima facie and abstractedly from circumstances, the articles were proper for his rank and station in life, that would be sufficient for the plaintiff to prove; if he was supplied aliunde, that must be proved by the defendant." (Burghart v. Hall, 4 Mees. & Wels. R. 731.) And this seems to be in accordance with the practice at Nisi Prius.

It appears, from the Nisi Prius Reports, that in one case on trial the plaintiff proved only that the defendant was a lieutenant in the militia, and had been introduced to the plaintiff by a person of distinction, and then proved the delivery of the goods and their value, and rested his case. The defendant then went into rebutting testimony. (Ford v. Fothergill, 1 Esp. 211.) And in another case reported, it does not appear that the plaintiff proved any more than that the defendant was the son of a certain lord, and that the clothes were furnished at a certain time and at reasonable charges on the part of the defendant, witnesses were then called on the defense. (Story v. Perry, 19 Eng. C. L. R. 508.) The same course appears to have been taken in still other cases on the

trial at Nisi Prius. (Crantz v. Gill, 2 Esp. 471. Steedman v. Rose, 41 Eng. C. L. R. 232.) These, of course, are not exactly authority on the point, because the question does not seem to have been raised and passed upon by the court; and yet, from the fact that the question was not raised, we may infer that the understanding of the court and counsel was in accordance with the practice which was adopted.

§ 75. As has been very pertinently suggested by one writer upon the subject, the facts concerning the infant's previous provision or supply and the like, being necessarily so much more peculiarly within his own knowledge, should, it seems, more properly come in as rebutting testimony, and by way of special defense. It is a general rule of evidence, that the onus is on the party within whose peculiar means of information the fact lies, and it would not seem that this case should be an exception to the rule. This throws no greater burden on the infant than is done by compelling him to prove his infancy the second time in answer to a replication of a new promise, as the practice universally requires, because the personal incapacity to contract, on which the infant grounds his defenses lies so peculiarly within his own knowledge. (1 Phillipps on Evidence, 199. Berthwick v. Carruthers, 1 T. R. 648. Bigilow v. Grannis, 4 Hill's [N. Y.] R. 206. Bay v. Gunn, 1 Denio's R. 108.)

The language of some cases, that the "tradesman is bound to inquire into the infant's circumstances or he trusts him at his peril," means nothing more than that the tradesman runs the risk of being able to prove the articles necessary at the trial. (Steedman v. Rose, 41 Eng. C. L. R. 232.) The making such inquiry, therefore, has no necessary bearing on the real point at issue, and is never necessary to be proved, and wholly unnecessary to be made before trusting the infant, except as a matter of satisfaction and safety of the tradesman. (Brashaw v. Eaton, 35 Eng. C. L. R. 99.) If any part of the articles furnished the infant is proved to be necessary, the plaintiff may recover pro tanto. (Burt v. Manning, 10 Vt. R. 225. Maddox v. Miller, 1 Maule & Selwyn's R. 738. Tuberville v. Whitehouse, 12 Price's, 692.) The positions taken in this and the last preceding section are substantially those which are found in the American notes to Mr. Bingham's work on infancy, where the references are also mostly to be found. (Bing. on Inf. 87, note 1, sub. 6.) From the rules laid down and the illustrations

given it will not be difficult to determine on which party the burden of proof in all these cases lies.

§ 76. Upon this subject of necessaries, then, it must always appear that the things furnished were actually necessary, of reasonable prices, and suitable to the infant's situation, condition and estate; that in no case is the infant bound by the specific agreement to pay for necessaries, but the question is always open to show what the articles were actually worth; that the credit must be actually given to the infant and to no one else, and that no actual promise to pay for necessaries is required, but if it appear that the articles furnished were necessaries a promise to pay for them will be implied. That an infant may bind his parents to pay for necessaries furnished him by others when he has an authority to do so, expressed or implied; but whether he can do so without such authority is still somewhat in doubt; though the English rule would seem to be tolerably well settled, that the father's liability rests wholly upon the ground of agency; and this rule is declared to be law in several of the states, with the indications that it will ultimately be adopted in all of the American States. That the term "necessaries" embraces the necessary meat, drink, apparel, medical treatment, and the like, and proper teaching or instruction of the infant, including necessary articles for the support of his wife and children. That the wants to be supplied must be personal; either those for the body, as food, clothing and lodging, or those necessary for the proper cultivation of the mind, as instructions suitable and requisite to the useful development of the intellectual powers, and qualifying the individual to engage in business when he shall arrive at the age of manhood. That the term necessaries does not embrace goods purchased by the infant to trade with, because the law does not deem him competent to carry on such business. That it is always a question of law for the court, whether articles for which an infant is sued are within the class of necessaries, and the jury are to pass upon their adaptation to the condition and wants of the infant; and that the rules of evidence in these cases are the same as in cases of adults. It may also be added that, in an action against an infant for necessaries, he may interpose the same matters of defense as adults can in similar cases. (Francis v. Felmet, 4 Dev. & Batt. R. 496.)

The interesting views of Professor Parsons upon this subject, as gathered from the authorities, may be profitably consulted, together

with the references which he makes. (Vide Parsons on Contracts, 244-257, and the notes and references.)

When the contract is for necessaries, an infant may take the case out of the statute of limitations by an acknowledgment that the debt was for necessaries. (Willins v. Smith, 82 Eng. C. L. R. 179.)

CHAPTER VIII.

OFFICES

OF WHAT INFANTS ARE CAPABLE -WHAT IS BINDING ON THEM BESIDES THEIR CONTRACTS FOR NECESSARIES MARRIAGE OF -WILLS OF PERSONALTY FINES AND USES

INFANTS

HOMAGE

MARRIAGE SETTLEMENTS.

$77. SAID Lord Mansfield: "Miserable, indeed, must the condition of minors be; excluded from the society and commerce of the world; deprived of necessaries, education, employment and many advantages; if they could do no binding acts. Great inconvenience must arise to others if they were bound by no act. The law, therefore, at the same time that it protects their imbecility from injury through their own imprudence, enables them to do binding acts for their own benefit, and, without prejudice to themselves, for the benefit of others." (Cecil v. Salsbury, 2 Vern. Ch. R. 224.) We have already seen that an infant, under certain circumstances, may bind himself absolutely for necessaries, and that he may be sued and charged in execution in all such cases, the same as an adult. An infant has a capacity to do many other binding acts which are as valid in law as though done by an adult.

§ 78. An infant is capable of holding and discharging the duties of all such offices as do not concern the administration of justice, but only require skill and diligence; and these he may either exercise himself when of the age of discretion, or they may be exercised by deputy. In England it has been held that he may properly hold the offices of park-keeper, forester and jailer; and the statute extends to an infant jailer, so as to charge him in an action of debt for an escape of one in execution. (Shrewsbury's case, 9 Coke's R. 48. Sir George Reynold's case, Ib. 97. King v. Dilliston, 2 Mod. R. 222.)

It is laid down, as a general proposition of the common law, that a mere ministerial office may be granted to an infant in pos