§ 124. Fourth. Executed contracts of marriage are binding upon an infant. By the common law, the age of consent, at which the contract of marriage may be made, is fourteen years in a male, and twelve in a female, and a marriage entered into after that age, and before majority, is valid, and cannot be avoided.7 But if the contract be entered into before such age, which is called the age of discretion, it is voidable at the mere will of either party, without legal process; or if one party only be under the age of discretion, it is at the option of either to affirm it or not. This is an anomaly in the law relating to promises. If, however, an infant be married, and affirm such contract after arriving at maturity, no subsequent marriage ceremony is necessary. Such affirmance may be either express or implied, if the parties still continue to live together, between an infant and adult. It comes, however, within the general principles of contract, which require a reciprocal assent of the parties, and is allowed in these particular cases, upon the ground stated by Lord Coke, that "in contracts of matrimony, either both must be bound, or equal election of disagreement be given to both."1
1 Whiting v. Earle, 3 Pick. 201; Corey v. Corey, 19 Pick. 29; Can-ovar v. Cooper, 3 Barb. 115; Cloud v. Hamilton, 11 Humph. 104; Clinton v. York, 26 Me. 167; Armstrong v. McDonald, 10 Barb. 300; Taunton v. Plymouth, 15 Mass. 203; Perlinau v. Phelps, 25 Vt. 478. But see Stiles v. Granville,- 6 Cush. 458.
2 Ayer v. Ayer, 41 Vt. 302 (1868). See Mears v. Bickford, 55 Me. 528; Abbott v. Converse, 4 Allen, 530.
3 Wodell v. Coggeshall, 2 Met. 89; The Etna, Ware, 462; Chilson v. Phillips, 1 Vt. 9. See Wood v. Corcoran, 1 Allen, 405. 4 Jenness v. Emerson, 15 N. H. 486. 5 Sumner v. Sebec, 3 Greenl. 223; White v. Henry, 24 Me. 531.
6 Bangor v. Readfield, 32 Me. 60.
7 Such is still the law in Massachusetts, although the person officiating at the marriage of a minor under that age is liable to a statute penalty. Parton v. Hervey, 1 Gray, 119.
§ 125. Fifth. The representative acts of an infant are binding, generally; as where he is an executor or trustee;2 upon the plain ground, that such contracts do not concern his own interest, and to render them void, would be to invalidate the contract of the cestui que trust, who may be perfectly competent to contract, and who has an undoubted right, if he choose, to take the risk of the infant's competency.
§ 126. Sixth. Contracts for "necessaries " are binding upon an infant, and as well in favor of an attaching creditor in garnishment as of his own creditor.3 The ground, upon which the contracts of infants for necessaries are enforced, has been said to be, not because they are contracts, 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." 4 This class includes by far the greatest number of cases in which an infant is liable on his contract. The legal term " necessaries " is a relative term, not strictly limited to such things as are absolutely requisite for support and subsistence, but to be construed liberally, and varying with the estate and degree, the rank, fortune, and age of the infant.5 His real and not his ostensible fortune and circumstances, however, constitute the test and criterion, as to whether the articles are necessaries or not.6
1 Co. Litt. 79 5, and notes 44 and 45; 1 Roll. Abr. 341; Bac. Abr. Infancy and Age, A.; 1 Black. Comm. 436.
2 The King v. Great Wigston, 5 Dowl. & Ryl. 339; 3 B. & C. 484.
3 Scofield v. White, 29 Vt. 330 (1857).
4 Bac. Abr. Infancy, I. 1.
5 Bac. Abr. Infancy, I. 1; Com. Dig. Enfant, B. 5; Rainsford v. Fenwick, Carter, 215; Hands v. Slaney, 8 T. R. 578; Harrison v. Fane, 1 Scott, N. R. 287.
6 Story p. Pery, 4 C. & P. 526; Cook v. Deaton, 3 C. & P. 114; Burg-hart v. Angerstein, 6 C. & P. 699; Ford v. Fothergill, 1 Esp. 211. In Story v. Pery, 4 C. & P. 526, which was a case where clothes were furnished by a tailor to the defendant, a minor, the charges for which were proved to be reasonable, Lord Tenterden said: " The question, if there be any in this and condition of the infant.1 This rule is extended so as to include the wife and children of the infant, and he will be responsible for necessaries furnished to them in like manner as he would if furnished to himself.2 He has been thought liable for articles bought to present to his bride;3 as also for a wedding suit for himself.4 Yet for necessaries furnished to a person he is to marry, and in view of that marriage, he is not liable.5
What would be necessary to one person in one situation in life, would by no means be so in another and different one; and what is suitable is therefore considered as necessary.1 Thus, a servant's livery was considered a necessary in one case, for which the defendant, his master, was liable; and horses, and jewelry, and lodgings have been held to be necessaries under certain circumstances.2 But articles which are purely ornamental and not useful, are not necessaries;3 and Vaughan, C. J., held that "balls and serenades at night must not be accounted necessaries," even for a nobleman.4 In a recent and leading case,6 a lady under age, residing with her father, as a member of his family, gave instructions to solicitors, through her father as agent, concerning a marriage settlement. Upon her marriage she was sued by the solicitors, jointly with her husband, as upon a contract for necessaries furnished before marriage; and the action was sustained.
§ 127. Again, in order to bring any articles furnished to an infant within the class of necessaries, it must appear that they were to supply personal wants, either of the body, as food, clothing, lodging, medicines, and the like, - or of the mind, as in the case of schooling and instruction;6 and what would be proper expense for instruction would depend on the station case, is, whether these things were necessaries, suited to the defendant's station and rank in society. It is the duty of all to enforce that wholesome provision, which protects infants from their own improvidence; and that cannot be better done than by preventing others from encouraging them in that improvidence. If a tradesman trusts an infant, he does it at his peril, and he cannot recover, if it turn out that the party has been properly supplied by his friends."