It was ruled by Buller, J., at Nisi Prius in 1783 that money lent, though lent for the express purpose of enabling an infant to purchase necessaries, and actually expended in accordance

41 Mclssaac v. Adams, 190 Mass. 117, 76 N. E. 654, 112 Am. St. Rep. 321; Dillon v. Bowles, 77 Mo. 603; Houck v. Bridwdl, 28 Mo. App. 644; Englebert v. Troxell, 40 Neb. 196, 68 N. W. 852, 26 L R, A. 177, 42 Am. St. Rep. 665; Cobbey v. Buchanan, 48 Neb. 391, 67 N. W. 176; Phelps v. Worcester, 11 N. H. 51; New Hampshire Mutual Fire Ida. Co. v. Noyes, 32 N. H. 345; Barker v. Hibbard, 54 N. H. 639, 20 Am. Rep. 160; Watts v. Houston (Old.), 165 Pac. 128; Thrall v. Wright, 38 Vt. 494. But some decisions hold that aer-vices reasonably required for the defence of property rights are necessaries. Sutton v. Heinrie, 84 Kans. 756, 115 Pac. 560, 34 L. R. A. (N. S.) 238; Sluaher v. Welfer, 151 Ky. 203, 151 S. W. 684; Nagel v. Schilling, 14 Mo. App. 576; Searcy v. Hunter, 81 Tex. 644,17 S. W. 372, 26 Am. St. Rep. 837. And in Helps v. Clayton, 17 C. B.

(N. S.) 553, a charge for the services of a solicitor who prepared a married settlement for an infant was held recover-

42 Barker v. Hibbard, 54 N. H. 539, 20 Am. Rep. 160; Askey v. Williams, 74 Tex. 294, 11 S. W. 1101, 6 L. R. A. 176.

43Munson v. Washband, 31 Conn. 303, 83 Am. Deo. 151; Hickman v. Mo-Donald, 164 Ia. 50, 145 N. W. 322; Crafts v. Carr, 24 R. I. 397, 53 Atl 275, 60 L. R. A. 128, 96 Am. St. Rep. 721; Ex parte Smithson, 108 Tenn. 442, 67 S. W. 864; Hanlon v. Wheeler (Tex. Civ. App.), 45 S. W. 821. Cf. Phelps v. Worcester, 11 N. H. 51; Thrall v. Wright, 38 Vt. 494.

44People v. Muffin, 25 Wend. 698.

45Owens v. Gunther, 75 Ark. 37, 40, 86 S. W. 851, citing: - Munson v. Washband, 31 Conn. 303, 83 Am. Dec. 151; Epperson v. Nugent, 57 Miss. 45, with this purpose cannot be recovered,46 "as the plaintiff thereby put it in the defendant's power to misapply the money." The same rule has been stated in a few cases in this country.47 There are also early English cases touching the matter but these, though cited by the American decisions, fully involve the point in one instance only, and in that single instance the decision is contrary to the rule for which the case is cited.48 If the question arose in equity, it was early

34 Am. Rep. 434; Jones v. Yore, 142 Mo. 38, 43 S. W. 384; Barker v. Hib-bard, 54 N. H. 539, 20 Am. Rep. 160.

46Probart v. Knouth, 2 Eep. 472, note.

47Lein v. Centaur Motor Co., 194 EL App. 509; Beeler v. Young, 1 Bibb, 519, 521; Swift v. Bennett, 10 Gush. 436, 438; Bradley v. Pratt, 23 Vt. 378, 386. But see Randall v. Sweet, 1 Denio, 460, 461.

48The early decisions are Rearsby and Cuffer's Case, Case. 219; Darby v. Boucher, 1 Salk. 279; Earie v. Peale, 1 Salk. 386; Ellis v. Ellis, 3 Salk. 197. In Rearsby and Cuffer's Case, a prohibition was granted prohibiting the Court of Requests from entertaining a suit for money which the plaintiff had laid out for necessaries for the defendant, "because as it was said he might have an action of debt at the common law, upon the contract, for the same, because they were things for his necessary livelihood and maintenance." In Darby v. Boucher the case was thus put: "One lends an infant money, who employs it in paying for necessaries, whether in that case the infant be liable, and it was held clearly by the Chief Justice that the infant is not liable, for it is upon the lending that the contract must arise, and after that time there could be no contract raised to bind the infant, because after that be might waste the money, and the infant's applying it afterward for necessaries will not by matter ex post facto entitle the plaintiff to an action." It is to be noticed that it is not stated in this case that the money was lent for the purpose of buying necessaries. In Earle v. Peale a replication to a plea of infancy that the money was lent for necessaries was held bad. The court said: "He may buy necessaries, but he cannot borrow money to buy, for he may misapply the money, and, therefore, the law will not trust him but at the peril of the lender who must lay it out for him, or see it laid out, and then it is his providing; and his laying out so much money for necessaries for him." In this case the question which the court was primarily considering was that of liability for money lent for necesaries and not used for that purpose - not that of liability for money both lent and spent for necessaries. This further appears from another report of the case in 10 Mod. 67, where the court says: "In this case the lending for such a purpose is only put in issue, which might be maintained without showing how the money was actually laid out; that if the fact was so, the plaintiff should have declared for money so laid out, and not so lent." The only case where the question of money both lent and spent for necessaries was clearly passed upon is the last of those cited above, Ellis v. Ellis. In this case (also reported in 12 Mod. 197, Comb. 482, 1 Ld. Raym. 344) it was held that "an infant is chargeable for money lent, if it is laid out settled and is well established that the infant is liable.49 In jurisdictions, therefore, where equitable rules are applicable to all actions, recovery must be allowed.50 Moreover, if a surety for an infant's liability for necessaries pays the claim, he may recover from the infant what he has paid,51 and similarly the infant has been held liable for money paid at his request to satisfy a debt for necessaries.52 Finally, if the money is actually applied by the lender himself to the purchase of necessaries for the infant it is well settled that the infant is liable.53 If, therefore, the creditor cannot recover at law for money lent to an infant and expended by him for necessaries, the reason must be purely technical. No sound technical reason exists. If the infant's liability for necessaries is quasi-contractual the principles governing the case ought to be based on the enrichment of the infant and his duty as a matter of justice to reimburse the person to whom this enrichment is owing. Judged by these principles there is no valid distinction to be made between a case where the creditor bought the necessaries for the infant and a case where he allowed the infant to do so with money lent for the purpose. The same result follows if the infant's liability for necessaries be regarded as contractual. Contracts for necessaries on this assumption differ from other contracts for necessaries, according to his degree, but all that is at the peril of the lender." This decision was decided before Earle v. Peale, though the report of it in Sal-keld's and Modern Reports is subsequent, but there is nothing in Earle v. Peale which can be regarded as overruling Ellis v. Ellis. There are no recent English decisions on the point in courts of law. In Bateman v. Kingston, 6 L. R. Ir. 328, the lender was not allowed to recover on an interest-bearing note though the money had been expended by the infant for necessaries, but the difficulty the court found was to allow recovery on an interest-bearing note, irrespective of what the consideration for it was. See Re Soltykoff, [1891] 1 Q. B. 413. 49Martow v. Pitfield, 1 P. Wms. 668;

Thurston v. Nottingham Soc., [1903) A. C. 6; Price v. Sanders, 60 Ind. 310; Hickman v. Hall's Adm., 5 Litt. 388, 342; Watson v. Cross, 2 Duvall, 147, 149; Bradley v. Pratt, 23 Vt. 378, 386. See also Ostrander v. Quin, 84 Miss. 230, 36 So. 257, 105 Am. St. Rep. 428.

50 Price v. Sanders, 60 Ind. 310.

51Conn v. Cobura, 7 N. H. 368, 26 Am. Dec. 746; Haines' Adm. v. Tarrant, 2 Hill (S. C), 400. See also Ayera v. Burns, 87 Ind. 245, 248, 249, 44 Am. Rep. 759; Dial v. Wood, 9 Bart. 296.

52Randall v. Sweet, 1 Denio, 460; Equitable Trust Co. p. Moss, 149 N. Y. App. Div. 615,134 N. Y. S. 533.

53 See cases supra, and Clarke v. Leslie, 5 Esp. 28; Re Clabbon, [1904] 2 Ch. 465.

only in this that they cannot be avoided, and the reason for not allowing them to be avoided is because it is essential for the infant's welfare that he have power to bind himself, since otherwise, if without money, he might be deprived of the necessaries of life. This reason applies to the case of money lent and used for necessaries as fully as to anything else. Frequently an infant can get no credit for necessaries, but can borrow money from a friend wherewith to buy them. It is a harsh rule which compels the lender, who resides perhaps at a distance, to supervise the expenditure on penalty of forfeiting his claim, even though the infant keeps his word and buys only necessaries. The reasoning suggested in some of the old cases that the contract must be either valid or invalid when made and that as the infant might misapply the money the contract could not be good, goes on the assumption, which cannot now be maintained, that the contracts of an infant if not for necessaries are void, for there is no reason why a contract voidable when made - that is before the money is spent for necessaries - should not cease to be voidable later, when the money is so expended, or that a quasi-contractual liability should not then arise.54 In a Tennessee case 55 it was held that a claim for payment for a telegram sent by an infant in destitute circumstances to his parents for money was a claim for necessaries. This can hardly be supported unless it is admitted that money sent to relieve his destitution would be a necessary. It may be added that any "remedy by subrogation, besides being fictitious and circuitous, has two defects. If the borrower pays cash for his necessaries, no debt arises to which the lender can be subrogated; yet surely he is just as worthy of relief. If the borrower becomes insolvent, and the lender happens to be subrogated to the rights of secured creditors, he receives a wholly undeserved priority."56

"The further reason suugested by Redfield, J., in Bradley v. Pratt, 23 Vt. 378, 388, and adopted in the note to Craig v. Van Bebber, 18 Am. St. Rep. 658, that the difficulty is want of privity between the lender and the one who supplies the necessaries, is in reality no reason but merely a statement of the rule in other terms, for why should such privity be necessary? There is no rule and no analogy in the law that makes it requisite for the enforcement of a right against the infant.

53 Western Union Tel. Co. v. Greer, 115 Tenn. 368, 89 S. W. 327.

54See 25 Harv. L. Rev. 726, citing