But although a recovery may not be had upon a note given by an infant for necessaries, yet the mere fact of the note having been given, will not of course preclude the plaintiff from recovering the value of the necessaries which formed its consideration: Earle v. Reed, 10 Mete. 387; McCrillis v. Howe, 3 N. H. 348; M'Minn v. Richmonds, 6 Yerg. 9.
The first of these cases, however, went somewhat further. The plaintiff's declaration contained a count on a promissory note given by an infant, and an account for goods sold and delivered. The plaintiff gave the note in evidence, and proved the sale, delivery, and value of the necessaries which formed its consideration. The remedy on the original contract was, however, barred by the Statute of Limitations, but a local statute in Massachusetts prevents, to some extent, the bar of the limitation act, in cases of notes attested by a witness and sued by the original payee, which was the case in this instance. Under these circumstances, it was contended on behalf of the defendant, that he was not originally liable on the note, under the principles just stated,-that never having ratified it, it was voidable, and useless therefore in that action for any purpose,-and that the plaintiff* when thrown back to the consideration of the note, could not recover by reason of the lapse of time. The Court, however, held that, as a general principle, there was nothing to prevent an infant's liability on an express, as well as on an implied contract for necessaries, provided the consideration were always left open for proof as to reasonableness of amount, etc, and the Court saw no reason why the statute referred to, should not apply to the case of a note given by a minor, as well as in the case of an adult. The previous case of Stone v. Dennison, 13 Pick. 1, had also taken the ground that an infant could be liable on a special contract for necessaries, in every case where the consideration was thus subject to proof, and it was thus said that a contrary rule might subject the infant to hardship in cases where, by the terms of the contract, the price of the necessaries was less than could be recovered on a quantam valebat. It has, however, been observed of the first of these cases (by Mr. Wallace, in the note to Tucker v. Moreland, supra), that it is " inconsistent with principle, as, in a count on a special and express contract, all or none should be recovered;" and it may be remarked of the reason given in Stone v. Dennison, that the general rules of law as to infants are made for their protection, and lose their application when their reason ceases: Jefford's Adm. v. Ringgold, 6 Ala. 584.-R.
Again, he cannot bind himself by stating an account; although the items of the account be all recoverable against him as for necessaries (x). Indeed, in many instances, the statement of an account often requires so very large a share of that kind of knowledge which is derived from actual experience alone, that there are perhaps few transactions for which the young commonly are less prepared; he cannot bind himself, therefore, by stating an account. For a similar reason an infant is not bound by an agreement to refer a dispute to arbitration (y), nor can he render himself liable by borrow(x) Trueman v. Hurst, 1 T. R. 40; Ingledew v. Douglas, 2 Stark. (3 E. C. L. R.) 36; Oliver v. Woodroffe, 4 M. & W. 650; Williams v. Moor, 11 M. & W. 256. See London and N. Western Ry. Co. v. M'Michael, and Birkenhead ditto v. Pilcher, 20 L. J. (Ex.) 97; 5 Ex. 114.
(y) Watson on Awards, c. 3, s. 1.
Even to lay out upon necessaries the money borrowed (z).
In Oliver v. Woodroffe, just cited (a), the infant had given a cognovit (which, as you are no doubt aware, is an acknowledgment by a defendant that an action brought against him is rightly brought, *and that a named sum is due to the plaintiff), and it was admitted that it was given for necessaries supplied to the infant. It was argued, that as an action might have been brought against him for the necessaries, he ought to be allowed to confess that action, in order to save further expense. But the Court of Exchequer, after considering the point, held that the cognovit could not be enforced against the infant, because by that means a minor would be made to state an account, which the law will not allow him to do, so as to bind himself. If an action be brought against him, it is for the jury to determine the reasonableness of the demand. Again, the general principle being that an infant shall be bound by no contract which is not beneficial to him (b), it is held that he can engage in none in which the performance of the contract is secured by a penalty; for that it cannot be for his advantage to become subject to a penalty; and, therefore, though the old books lay it down that he may bind himself by a deed to pay for necessaries (c), yet it is clearly settled that he cannot do so by a bond containing a penalty (d). A variety of other examples might be given; but I think *what I have said sufficient to explain the general nature of an infant's liability and exemption from liability.
(z) Earle v. Peale, 1 Salk. 386; Probart v. Knouth, 2 Esp. 472, note. But see as to the rule of Equity in such case, Marlow v. Pitfield, 1 P. Wms. 558.
(a) Note (x).
(b) See Stikeman v. Dawson, 16 L. J. (Ch.) 205; and for instances of contracts for work and wages held void as containing stipulations not for the benefit of the infant, see R. v. Lord, 12 Q. B. 757; 17 L. J. (M. C.) 181; Meakin v. Morris, 12 Q. B. D. 852; 53 L. J. (M. C.) 72.
(c) Com. Dig. Infant, B. 5.
(d) Ayliff v. Archdale, Cro. Eliz. 92 ) Corpe v. Overton, 10 Bing. (25 E.G. L. R.) 252.
This rule that an infant shall not be allowed to bind himself by contracts made in trade, although, looking at it with regard to the present state of education and society, it may appear not to be so requisite as once it was, yet looking at it upon general principles, it is capable of being defended by some strong arguments. The consequences of failure in trade are so fatal, not merely to the property, but often to the reputation of the unsuccessful trader-and a failing trader is so often, in his struggles to save himself from utter shipwreck, and to keep up a good appearance in the sight of the world, induced to have recourse to disingenuous and reprehensible expedients-that possibly, upon reflection, it may be thought not unwise to guard young persons up to a certain point against the accidents and temptations of mercantile speculation, and to insure to them, as far as possible, the advantage of starting fair in life with fortunes unimpaired and characters unblemished. How grievous would be the situation of a young person beginning life at one-and-twenty an undischarged bankrupt. Against such a chance, the law, as it now stands, effectually guards him; for, as an infant cannot make himself liable on trade contracts, so he *cannot be adjudicated a bankrupt for a trade debt (e).