(k) Barnes v. Toye, 13 Q. B. D. 410. (l) Turner v. Trisby, 1 Str. 168. (m) 13 M. & W. 252.
1 In the case of Barnes v. Toye, supra, the Queen's Bench Division dissented from Ryder v. Wombwell, L. B. 3 Exch. 90, 4 lb. 35, upon this point. In the latter case the Court of Exchequer were of the opinion that even if the infant were supplied already with articles of the class furnished, and which were prima facie necessaries, a tradesman who was ignorant of this fact could recover. But in the later case it was pointed out that this would make the protection thrown about an infant by the law dependent upon the state of knowledge of the party he was dealing with, and the Court refused to follow it (Manisty, J., dubitante).
In Nichol v. Steger, 2 Tenn. Ch. 328, Cooper, Ch., said, "Nothing is clearer than that an infant cannot bind himself or his estate even for necessaries, if they are furnished him by his guardian. . . . Nor can it make any difference that the person who deals with the infant is not aware of the fact that he was an infant and had a guardian. It is his duty to inquire. . . . And the very fact that the infant has an ample estate is a strong reason for adhering to the general rule." See the authorities cited in this case. In Johnson v. Lines, 6 W. & S. 80, Gibson, C. J., held that an over-supply of an infant's wants, though the articles might in other respects be ranked as necessaries, gives a demand against him only for so much as was actually needed; and it is the tradesman's duty to acquaint himself with the infant's circumstances and necessities, as well as to take notice of supplies by other tradesmen.
2 So, indeed, an infant marrying an adult wife became liable on her contracts whether for necessaries or otherwise; for her contracts are valid, being made by an adult, and the husband's liability is an incident of the marriage contract, which is one that the law allows the infant to make: Butler v. Breck, 7 Mete. 164; Roach v. Quick, 9 Wend. 238.-R.
(n) Bac. Law Maxims, r. 18-Broom's Maxims, 533, 5th edit.
"In the case of the husband the contract will be made after the death of the wife or child, and so after the relation which gives validity to the contract is at an end to some purposes. But if the husband can contract for this, it is because a contract for the burial of those who are personce conjunctce with him by reason of the marriage, is as a contract for his own personal benefit; and if that be so, we do not see why the contract for the burial of the husband should not be the same as a contract by the widow for her own personal benefit. Her coverture is at an end, and so she may contract; and her infancy is, for the above *reasons, no defence, if the contract be for her personal benefit.
"It may be observed, that as the ground of our decision arises out of the infant's previous contract of marriage, it will not follow from it that an infant child or more distant relation would be responsible upon a contract for the burial of his parent or relative."
More recently, it has been held, in strict conformity with this reasoning, that as the contract of marriage is one which it is competent for an infant to enter into, a proper marriage settlement upon an infant lady, even of the property of her intended husband, might justly be considered necessary and suitable to her state and condition; and that consequently the preparation of such settlement was beneficial, and a contract for preparing it was binding upon her (0).
There are, however, some species of contracts which the law considers it so imprudent on the part of an infant to enter into, that it will not allow him to bind himself by them under any circumstances. For instance, an infant cannot trade, and consequently cannot bind himself by any contract having relation to trade. We know, by constant experience, that infants do in fact trade, and trade sometimes very extensively. However, there exists a conclusive presumption of law that no infant under the age of twenty-one has discretion *enough for that purpose. You will see this laid down in Why wall v. Champion (p), Dilk v. Keighley (q). He may, therefore, recover back in an action for money had and received a sum which, while an infant, he had paid towards the purchase of a share in the defendant's trade (r),, not having actually received any profit or benefit from the business (s). If he has obtained such profit, or has derived advantage from the business, so that he cannot put the defendant in the same situation in which he would have been had the contract not been made, he cannot recover back the money (t). Some singular consequences follow from this general rule; for instance, a hill of exchange is a mercantile contract, deriving, as 1 had occasion to explain in the last Lecture, its peculiar and distinguishing qualities from the law merchant. An infant, therefore,
(o) Helps v. Clayton, 34 L. J. (C. P.) 1. (p) Str. 1083. (q) 2 Esp. 480.
(r) Corpe Overton, 10 Bing. (25 E. C. L. R.) 252. (s) Holmes v. Blogg, 8 Taunt. (4 E. C. L. R.) 508.
(t) Corpe v. Overton, supra; Holmes v. Blogg, supra; Ex parte Taylor, in re Burrows, 25 L. J. (Bptcy.) 35.
22 337 as he cannot be a merchant, is not allowed to bind himself by becoming a party to such an instrument; and thus, although a young man under the age of twenty-one may bind himself by a contract to pay money for his necessary dress, living, or education, yet, if he accept a bill for the price of these very articles, it will not bind him, although by accepting the bill, he in fact would rather gain an advantage, inasmuch as he *:would be entitled to credit during the time the bill had to run (u)1
(u) Williams v. Harrison, Carth. 160; Williamson v. Watts, 1 Camp. 552; Harrison v. Cotgreave, 4 C. B. (56 E. C. L. E.) 562; 16 L. J. (C. P.) 198.
1 Although in AylifF v. Archdale, Cro. Eliz. 920, a distinction was taken between a bond with a penalty, given for necessaries, and an obligation for the exact sum, yet it has been since repeatedly held, that an infant is neither liable upon a bond, bill, or note, given for necessaries, nor upon an agreement to pay a certain sum for them, on the ground that the infant is not to be precluded by the form of the contract, from his right of showing the actual worth of the articles: Earle v. Peale, Salk. 3S6, pl. 2; Probart v. Knouth, 2 Esp. 472 n.; Beeler v. Young, 1 Bibb, 519; McCrillis v. How, 3 N. H. 348; or, as it should be more correctly said, because the only contract on which an infant is liable, is the implied contract for necessaries: Roof v. Stafford, 7 Cow. 182; Tucker v. Moreland, 1 Am. L. C. 244. Nor is he liable for money lent to enable him to procure necessaries, on the ground that the contract arises upon the lending; and the subsequent application of the money for necessaries, cannot, by matter thus ex post facto, make the contract binding: Earle v. Peale; Walker v. Simpson, 7 W. & S. 88. In equity, however, it is considered that where the money is thus actually applied, the lender may stand in the place of the infant's creditor, who has been satisfied, and be subrogated to his rights: Mar-low v. Pitfeild, 1 P. Wins. 559; Beeler v. Young, Walker v. Simpson, svpra; Best v. Manning, 10 Vt. 230; and, at law, money paid at the infant's request for necessaries, may be recovered under a count for money paid: Randall v. Sweet, 1 Den. 460; Conn v. Coburn, 7 N. H. 368; or, it was held, in Smith v. Oliphant, 2 Sand. 306, under a count for money lent and advanced.