1 Brooks v. Crowse, Andr. 277; Clowes v. Brooke, 2 Str. 1101; Barber v. Vincent, 1 Freeman, 531.
2 Hands v. Slaney, 8 T. R. 578; Harrison v. Fane, 1 Scott, N. It. 287; Peters v. Fleming, 6 M. & W. 42; Crisp v. Churchill, cited in Lloyd v. Johnson, 1 Bos. & Pul. 340. But see Rainwater v. Durham, 2 Nott & M'-Cord, 524.
3 Peters v. Fleming, 6 M. & W. 42; Brooker v. Scott, 11 M. & W. 67; Chappie v. Cooper, 13 M. & W. 252. See Ryder v. Wombwell, Law R. 4 Exch. 32 (1868); s. c. Law R. 3 Exch. 90.
4 Rainsford v. Fenwick, Carter, 216, sed qucere.
5 Helps v. Clayton, 17 C. B. (n. s.) 553 (1864).
6 Tupper v. Cadwell, 12 Met. 562, per Mr. Justice Dewey; Co. Litt. 72; 2 Roll. 271; Chappie v. Cooper, 13 M, & W. 252.
§ 128. Whether the articles furnished are actually necessary to the particular infant, is a question of fact for a jury; but whether they come within the class of necessaries suitable to persons in his condition, is a question of law.6 That is, whenever the articles supplied are of a doubtful character, and may or may not have been necessary for the particular infant, it is for the jury to determine, under the direction of the court, as to what the legal term necessaries imports, whether the articles in question were necessaries in the particular case. But if the articles be manifestly not necessaries, but mere luxuries or conveniences, the court will adjudge the question as matter of law, without putting it to the jury; and though the articles may under certain circumstances be considered as necessaries, yet if no special circumstances be shown, making them so, and they are prima facie not within the class, the court will adjudge the question as matter of law.1 Thus, where fruit, confectionary
1 Peters v. Fleming, 6 M. & W. 48. A good common school education would in all cases be considered as necessary. Manby v. Scott, 1 Siderfin, 112; Middlebury Coll. v. Chandler, 16 Vt. 683; Raymond v. Loyl, 10 Barb. 489. But in this country a regular collegiate education has been held not to be within the class of necessaries for a person of ordinary rank and circumstances in life. Middlebury Coll. v. Chandler, 16 Vt. 683. And an agreement to board, clothe, and school an infant in return for his labor cannot be repudiated after it has been executed. Squier v. Hydliff, 9 Mich. 274 (1861); Mountain v. Fisher, 22 Wis. 93 (1867).
2 Turner v. Trisby, 1 Str. 168; Bacon, Max. 67; Rainsford v. Fenwick,
1 Carter, 215; Beeler v. Young, 1 Bibb, 519.
3 Jenner v. Walker, 19 Law Times (n. s.), 398.
4 Sams v. Stockton, 14 B. Mon. 232.
5 Turner v. Trisby, 1 Str. 168; Beeler v. Young, 1 Bibb, 519; Abell v. Warren, 4 Vt. 149.
6 Beeler v. Young, 1 Bibb, 519; Stanton v. Willson, 3 Day, 37; Maddox v. Miller, 1 M. & S. 738; Bac. Abr. Infancy and Age, I. 1; Lowe v. Griffith, 1 Scott, 458; Phelps v. Worcester, 11 N. H. 51; Grace v. Hale, 2 Humph. 27; Tupper v. Cadwell, 12 Met. 559; Mason v. Wright, 13 Met. 306.
1 Such at least seems to be the current of opinion in the recent cases. In Peters v. Fleming, 6 M. & W. 42, the plaintiff, who was a jeweller, brought an action against an infant for the price of four rings, a gold watch-chain, and a pair of breastpins; infancy was pleaded in defence, and the plaintiff replied that the articles were necessaries suitable to the estate, degree, and condition of the defendant. It appeared that the infant was the eldest son of a gentleman of fortune, who was a member of Parliament, and that he was an undergraduate at the University of Cambridge, and resided at the university. The jury found that the articles were necessaries, and a motion was made to set aside the verdict as contrary to evidence. The Court of Exchequer, however, refused to interfere, and Baron Parke said, " It is perfectly clear, that from the earliest time down to the present, the word necessaries was not confined, in its strict sense, to such articles as were necessary to the support of life, but extended to articles fit to maintain the particular person in the state, station, and degree in life in which he is; and therefore we must not take the word ' necessaries' in its unqualified sense, but with the qualification above pointed out. Then the question in this case is, whether there was any evidence to go to the jury that any of these articles were of that description. I think there are two that might fall under that description, namely, the breastpin and the watch-chain. The former might be a matter either of necessity or of ornament; the usefulness of the other might depend on this, whether the watch was necessary; if it was, then the chain might become necessary itself. Now it is impossible for us to say that a judge could withdraw it from the consideration of the jury, whether a watch was not a necessary thing for a young man at college, and of the age of eighteen or nineteen, to have. That being so, it is equally, as far as the chain is concerned, a question for the jury; there was, therefore, evidence to go to the jury. The true rule I take to be this, - that all such articles as are purely ornamental are not necessary, and are to be rejected, because they cannot be requisite for any one; and for such matters, therefore, an infant cannot be made responsible." But in Harrison v. Fane, 1 Man. & Grang. 550, the action was brought against an infant by a livery-stable keeper for the hire of horses, and it appeared that the defendant was the younger son of a gentleman who had once been a member of Parliament, and that the defendant had a horse of his own, and sometimes hunted with his father's hounds. Under these circumstances, the judge charged the jury that the horses were not necessaries, but the jury found a verdict for the plaintiff, and the court set it aside as perverse and contrary to law. Tindal, C. J., said, "I do not say that horses and gigs are not necessaries under any circumstances; but no evidence was given that they were so in the present case. All that was shown was that defendant kept a horse, and sometimes hunted with his father." Maule, J., said, " The plaintiff altogether failed in making out that the horses which he had let to defendant ery, etc., were supplied to a student at Oxford for dinners at his rooms, where he received parties of friends, it was held, were necessaries. I doubt whether the jury thought they were so; they were probably of opinion that an improper defence had been set up." In Brooker v. Scott, 11 M. & W. 67, dinners, confectionery, soda-water, lozenges, oranges, jellies, and other articles of a similar kind, were furnished to an infant, for the price of which an action was brought, and the jury having given a verdict for the plaintiff, a rule nisi was obtained, and the court held, that the articles were prima facie not necessaries, and as no circumstances were alleged to make them so, the plaintiff should be nonsuited. The counsel having cited the remarks of Baron Parke (supra) in Peters v. Fleming, that "the word necessaries was not confined in its strict sense to such articles as were necessary to the support of life, but extended to articles fit to maintain the particular person in the state, station, and degree of life in which he is,"Baron Alderson said, " That is to be understood with this qualification, which is pointed out in the same judgment, that the articles be useful. If they are useful, whether they be necessaries will depend on the condition and quality of the individual. But these are articles merely useless and luxurious" To the objection that the articles might have been necessaries, Baron Parke said, "If there be special circumstances you ought to show them; " and Lord Abinger said, "The question is, whether on the face of this bill we see any articles that we think should have been considered by the jury under all the circumstances of the case as necessaries, and we think there are none." See Wharton v. Mackenzie, and Cripps v. Hills, 5 Q. B. 606; 48 Eng. Com. Law Rep. 606. This was an action for fruit, confectionery, marmalade, ices, soda-water, and other articles sold and delivered to an infant, - and it appeared that these articles were furnished for dinners given by the infant, who was an Oxford undergraduate, at his own rooms. The judge directed the jury, "that in considering what articles should be considered necessary, they were to take into their estimation the rank and fortune of the defendant, and to determine whether the supply was extravagant." A rule nisi having been obtained for misdirection, the case was reargued. Mr. Justice Coleridge said, "It is a most important inquiry, how far the question is for the court, and how far for the jury. In some cases, the question must be for the judge. Suppose the son of the richest man in the kingdom to have been supplied with diamonds and race-horses, the judge ought to tell the jury that such articles cannot possibly be necessaries. In Wharton v. Mackenzie, the fact of the defendant's illness was proved in order to explain the supply of some of the articles. In such a case, the question is a mixed one of law and fact, and must go, with proper directions, to the jury. Without any explanation, the court will decide the question. As to what is the meaning of the word ' necessaries,' we have my brother Parke's admirable judgment; to which I will make only one addition, suggested by the argument urged at the bar. It is said that we are to look at the circumstances of each defendant. True, we must do so. But the artithat so far as the articles were furnished for entertainments given by the defendant to his friends, the question was properly one of law, it being manifest that such articles could in no sense be necessary to him.1 It seems, also, that it is incumbent on the plaintiff to prove affirmatively, that the articles sold were necessary, and if he give no such proof, the verdict must be for the defendant.2