In Peters v. Fleming, the plaintiff, who was a jeweller, brought an action of debt against an infant who pleaded his infancy by way of defence; the plaintiff replied that the goods, for the price of which he sued, were necessaries suitable to the estate, degree, and condition in life of the infant; on which issue was joined, and the question to be tried was, whether they were or were not so. It turned out that the infant was the eldest son of a member of Parliament, who was, also, a gentleman *of fortune, and that the infant was an undergraduate of the University of Cambridge, and resided at the University. The articles supplied were four rings, a gold watch-chain, and a pair of breast-pins. The jury found that these 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. Baron Parke said,-"It is perfectly clear, that, from the earliest time down to the present, the word necessaries was not confined 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; and therefore, we must not take the word 'necessaries' in its unqualified sense, but with the qualification above pointed out. The question, therefore, 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 breast-pin 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 that a judge could withdraw from the consideration of a jury whether a watch was necessary 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 if they were not strictly of this description, then the question arises whether they were bought for the necessary use of the party, in order to support himself properly in the degree, state, and station of life in which he moved. If they were, for such articles the infant may be made responsible."
(b) 6 M. & W. 42.
(c) 1 M. & Gr. (39 E. C. L. R.) 550.
On the other hand, in Harrison v. Fane (d), an action was brought by a livery stable-keeper for the hire of horses; the defendant pleaded infancy, and the plaintiff replied that the horses furnished were necessary for the infant, upon which issue was joined. It turned out, on the trial, that the defendant was the younger son of a gentleman who had once been a member of Parliament, and who had a family of five children. The defendant, the infant, kept a horse of his own, and sometimes hunted with his father's hounds. Under these circumstances the judge who tried the cause thought that the horses *were not necessaries, and directed the jury accordingly; but the jury thought proper, nevertheless, to find their verdict for the plaintiff. The Court considering it a perverse one, and contrary to law, set it aside, the L. C. J. observing that he would not say that horses could not be necessaries under any circumstances, but that no evidence was given that they were so in the present case.1 With regard to the L. C. Justice's remark, I have been considered necessaries (f). The case of Hands v. Slaney (g), also well illustrates both *these propositions, for in that case it was held that a captain in the army, under age, was liable for a livery, ordered by him for his servant, but not for cockades given to the soldiers of his company. Lord Kenyon thought it was proper for a gentleman in the defendant's situation to have a servant, and if proper to have a servant, that the servant should have a livery, but that the cockades could not be necessaries. In one of the most recent cases on the subject, Ryder v. Wombwell (A), it was held that there was no evidence of either a pair of jewelled solitaires worth £25, or an antique goblet, intended for a present, worth £15 15s., being necessaries for an infant, the son of a baronet, with no independent establishment, and in the receipt of an allowance of £500 a year; that the question, therefore, of "necessaries " or not ought not to be left to the jury, but a nonsuit directed. If the articles supplied to the infant are in their own nature necessaries, considering the infant's degree and station, it is immaterial that he had such an allowance paid to him as might have enabled him to pay ready money for them (i). But articles which are prima facie of the class of necessaries may be taken out of that class by evidence that the infant was at the time when the order was. given already sufficiently supplied with *goods of a similar description. A tradesman therefore, who wishes to be safe, should before supplying an infant with goods, make inquiries as to the degree in which he is already supplied with goods of the
(d) 1 M. & Gr. (39 E. C. L. R.) 550. See, however, the decision of the Court of Exch. Ch. in Ryder v. Wombwell, cited ante p. *310, as to the duty of the judge to withdraw the question from the jury in the absence of evidence on which they could reasonably find that the articles were necessaries.
1 The result of the cases on both sides of the Atlantic seems to be, that unless the articles are, both as to quality and quantity, such as must be necessaries to any one, the burden of proof lies on the plaintiff to show such a condition of life of the defendant as might raise to the rank of necessaries, tilings which would otherwise be luxuries : Brooker v. Scott; Wharton v. M'Kenzie; Rainwater v. Durham, 2 N. & Mc. 524; Rundle v. Keeler, 7 Watts, 239; Phelps v. Worcester, 11 N. H. 51; Bent v. Manning, 10 Vt. 225; Grace v. Hale, 2 Humph. 27. When this has been shown, the question whether the articles are necessaries, is one for the jury, subject, however, in some cases, to the direction of the Court, as, for instance, as was said in Wharton v. M'Kenzie, supra, " 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." And it would also seem that the articles must be to supply personal wants either for the body or mind; expenditures, therefore, for other purposes, as, for example, for alterations in an infant's real estate, however requisite, can never be considered as necessaries, they being regarded in the same light as articles furnished him for trade, the price of which cannot, as will be presently seen, be recovered as necessaries, however beneficial they may be to the business: Tupper v. Cadwell, 13 Mete. 559. And even in cases where there can be no doubt that the articles are proper and necessary in themselves, yet as an overplus of goods, otherwise proper, ceases to be a supply of necessaries as to the excess, the jury should be directed to find for no more than is absolutely necessary, unless there is evidence to justify the quantity: Johnson v. Lines, 6 W. & S. 84.-R.