the credit of the parent or guardian with whom the infant lives, he cannot be held liable therefor;49 and the fact that the parent of an infant is poor and unable to pay for necessaries will not warrant a recovery against the infant.50 Contracts for the purchase

of articles used by the infant in carrying on his business are not necessaries for which he may be held liable.51 But a husband, though an infant, is liable for necessaries furnished his wife.5% And when an infant borrows money to purchase necessaries, or procures another to pay for him a debt contracted for necessaries, he is liable. 53

d. Commercial paper of infants.— There are a number of early cases in this country which lay down the rule that a negotiable instrument executed by an infant is void, and that no power exists in the infant by ratification or affirmance to give effect to such an instrument.54 This doctrine seems to have been discarded and in its place is substituted the rule that the negotiable instrument of an infant is merely voidable and not void, and that a promise to pay, made by the infant after he attains his full age, renders the instrument valid.56 An infant cannot be bound by his acceptance of a bill of exchange, but having accepted such a bill, he may

59.

49. Tharp v. Connelly, 48 Mo. App.

50. Hoyt v. Casey, 114 Mass. 397, 19 Am. Rep. 371.

55

born, 13 Ga. 467; Price v. Sanders, 60 Ind. 310; Cole v. Seeley, 25 Vt. 220.

53. Guthrie v. Morris, 22 Ark. 411; Hickman v. Hall's Admrs., 15 Ky. 338; Kilgore v. Rich, 83 Me. 305, 22 Atl. 176, 23 Am. St. Rep. 780, 12 L. R. A. 859; Swift v. Bennett, 64 Mass. 436; Smith v. Oliphant, 4 N. Y. Super. Ct. 306; Randall v. Sweet, 1 Den. (N. Y.) 460.

51. Articles purchased by an infant for business, agricultural, or commercial purposes are not necessaries, and upon restoration of the property he may recover the consideration paid for it. House v. Alexander, 105 Ind. 109, 4 N. E. 891, 55 Am. Rep. 189. 54. Beeler v. Young, 1 Bibb (Ky.), In the case of Ryan v. Smith, 165 519; Wentworth v. Wentworth, 5 N. H. Mass. 303, 43 N. E. 109, it was held 410; Fenton v. White, 4 N. J. L. that articles of furniture designed for 100; McMinn v. Richmonds, 14 Tenn. use in furnishing a barber shop, pur- 9; Swasey v. Vanderheyden's Admr., chased by a minor having no means 10 Johns. (N. Y.) 33; Nichols & of support, except what he earned, are Shepard Co. v. Snyder, 78 Minn. 461, not necessaries, and he may therefore 81 N. W. 516. repudiate his contract. See also Decell v. Lawrence, 57 Miss. 331, 34 Am. (N. Y.) 419; Goodsell v. Myers, 3 Rep. 449; Wood v. Losey, 50 Mich. Wend. (N. Y.) 479; Best v. Givens, 475, 15 N. W. 557; Paul v. Smith, 41 42 Ky. 72; Wright v. Steele, 2 N. H. Mo. App. 275. As to recovery of 51; Jeffords v. Ringgold, 6 Ala. 544; money paid on contract for condi- Fant v. Cathcart, 8 Ala. 725; Little tional sale of bicycle to an infant, see v. Duncan, 9 Rich. L. (S. C.) 55, 64

Gillis v.

Goodwin, 188 Mass. 140, 61

55. Everson v. Carpenter, 17 Wend.

Am. Dec. 760; Stokes v. Brown, 4

N. E. 813; Rice v. Butler, 160 N. Y. Chandl. (Wis.) 39.

518, 55 N. E. 275.

56. Tyler on Infancy, etc., § 16;

52. Cantine v. Phillips' Admr.. 5 Tafft v. Sergeant, 18 Barb. (N. Y.) Harr. (Del.) 428; Nicholson v. Wil- 320.

render it valid by a new promise or by ratification after he comes of age.57 Where a person of full age accepts a bill which was drawn on him while an infant, he is liable thereon.58

e. Note or bill for necessaries. It has been held that a negotiable note given by an infant, even for necessaries, was void.59 The reason given was that if the note was valid in the first instance as a negotiable instrument, the consideration could not be inquired into when it is in the hands of a bona fide holder, and the infant would thereby be precluded from questioning the consideration." If the note for necessaries was nonnegotiable and in the hands of the payee, an action against the infant might be maintained thereon by the payee, and an inquiry into the value of the necessaries might be had and judgment rendered therefor.61 And this is also true in respect to a note or bill negotiable in form so long as it remains in the hands of the payee." Infants are liable for necessaries, and they may bind themselves therefor provided they

57. Williams v. Harrison, 3 Salk. (Eng.) 197; Hunt v. Massey, 5 Barn. & A. (Eng.) 902; Edwards on Bills and Notes, p. 67.

62

ing infancy, with or without new consideration for such promise or ratification after full age.

59. Swasey V. Vanderheyden, 10 Johns. (N. Y.) 33.

60. Beeler v. Young, 1 Bibb (Ky.), 519; McMinn v. Richmonds, 6 Yerg. (Tenn.) 9.

61. 1 Parsons on Notes and Bills,

Byles says (Byles on Bills [16th ed.], p. 68): "The acceptance of an infant was at all events invalid and could not be confirmed by a promise to pay made after he was of age, and p. 69. after action brought. And all his contracts made in the course of trade were formerly considered absolutely void and incapable of confirmation, though the moral obligation to fulfil them would support an express promise to pay after full age, and before action brought."

58. Byles on Bills (16th ed.), p. 69; Stevens v. Jackson, 4 Campb. (Eng.) 164.

English Infants' Relief Act (37 & 38 Vict., chap. 62) is to the effect that all contracts, whether by specialty or simple contract, entered into by infants to repay money lent or to be lent, or for goods supplied or to be supplied (other than contracts for necessaries), and all accounts stated with infants shall be absolutely void; provided that the act shall apply to such contracts as were voidable at the time of its passage. The act further provides that no action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted dur

62. Earle v. Reed, 10 Metc. (Mass.) 387, in which case it was held that a negotiable note given by an infant was not void in the hands of the promisee; and in a suit thereon by the promisee, he may show that it was given, in whole or in part, for necessaries, and may recover thereon as much as the necessaries for which it was given were reasonably worth and no more. Shaw, C. J., said: Under these views we consider this note, in the hands of the promisee, as the simple contract of the defendant for the payment of money; and there being no consideration expressed, the infancy of the promisor being shown is prima facie a bar to the action. But as the consideration is open to inquiry, we think it is competent for the plaintiff to show that it was given for the price of necessaries, in which he will recover only so much of the note as shall appear to have been given for necessaries at their fair value, without regard to the price stipulated to be paid by the minor."

The

do not agree to pay more than they are reasonably worth.63 payee of a note, given for such necessaries, whether negotiable or otherwise, may recover thereon to the extent of the value of such necessaries. If the payee transfers such note by indorsement to an innocent indorsee the indorsee has his remedy against the payee, although he may be prevented from recovering from the maker who pleads his infancy. This would seem to be the rule deduced from the weight of authority, both of the courts and of textwriters.64 The doctrine is not without its opponents. There are a few cases to the effect that an infant is bound by his note or bill

63. Locke v. Smith, 41 N. H. 346. a note, while admitting a liability for 64. Rights of indorsee against in- the value of the necessaries, might fant. Chitty says (Chitty on Bills, seem technical rather than substantial. p. 19): "And though it has been Not so, however, if the note were ne considered that a single bill or bond gotiable and negotiated, for now it for the exact sum due, and not in might pass for value into the hands penalty, given for necessaries, is ob- of innocent third parties, and either ligatory upon an infant, yet an in- its character would protect it from dorsee of a bill or note cannot sue an all inquiry into consideration, which infant upon either of these instruments, though given for such consideration; and as an infant cannot state an account, it seems to be the better opinion that these instruments are not in any case available against infants, even between the original parties."

In Kyd on Bills it is urged, that if a simple bill for necessaries be valid, there seems no reason why a bill or note for the same consideration should not be binding; and it has been observed that this circumstance of a single bill for necessaries being valid, seems to afford an argument from analogy to show that a promissory note given by an infant for necessaries would be binding, if payable only to the person who supplied them, though he cannot be bound by his signature to a negotiable bill or note, as that not only prima facie admits the debt, and operates as an account stated, but, if valid, would render him liable to an action at a suit of an indorsee, in which the amount of the original debt could not be disputed. Williams v. Watts, 1 Campb. (Eng.) 522 (notes). 1 Parsons on Bills and Notes (p. 69) has the following: "If, however, the action were on a simple promissory note, not negotiable, or even on a negotiable note which had not been negotiated, an inquiry into the consideration might be made, which would seem to open the whole question; and the reason for denying the validity of such

might injure the infant, or for his protection this inquiry might be made, and then the document would lose the chief peculiarity and characteristic of negotiable paper."

"And

Story on Bills of Exchange (§ 84) states the rule as follows: even a bill of exchange given for necessaries would seem to be invalid; for an infant is not capable of binding himself to pay a specific sum, even for necessaries; but only what they are worth; and a fortiori, he is not liable, according to many authorities, on a bill of exchange, given for necessaries, which is negotiable; for that might involve him in liability to third persons."

Edwards on Bills and Notes (p. 65) contains the following: During his minority, the infant cannot make a contract waiving the privilege accorded to him by law. Though he gives his negotiable note for necessaries, the holder in an action upon it must show that it was so given, and he can then recover only so much as the things furnished were reasonably worth. But here the recovery is not through the force of the terms used in the note; on the contrary it proceeds upon due original consideration, thus destroying the negotiability of the instrument so far as that depends upon the legal presumption that it has been given for value, or upon the obligation of the promise."

And among

given for necessaries in the hands of an indorsee. 65 text-writers, Mr. Daniels has quite emphatically dissented." And indeed it is somewhat incongruous to permit a payee, who has had more opportunity to ascertain the age and circumstances of the infant, to recover from him upon such a note and to restrict a similar right of the indorsee, who may be in entire ignorance of the facts attending the transaction. A more reasonable rule would be to permit the indorsee the privilege accorded the payee, of showing the value of the necessaries and recovering the amount thereof. The infant would be amply protected by such a course, since the law does not require that he should be afforded more protection than for an amount in excess of the actual value of the necessaries furnished.

f. Rights of infant as payee and indorsee. An infant may become the payee of a note or the drawee of a bill; he may recover thereon, and his rights in respect thereto are the same as though he were an adult. Since the consideration moves from another to himself, it must be for his benefit.67 The law conferring upon an infant the special privilege of immunity from his contracts, is solely for his benefit and protection; to deny him the privilege of enforcing obligations from others to himself would be an injury and a hardship. An infant to whom a note or bill is payable or to whom it has been transferred by indorsement may himself transfer such note or bill to another person, who will take and hold the same as against all parties prior to the infant.68 The infant would be injuriously affected by the existence of any other rule; if notes and bills of which he is the holder were incapable of transfer their value would be materially impaired. The English Bills of Ex

65. Du Bois v. Wheddon, 4 McCord (S. C.), 221; Haine v. Tarrant, 2 Hill (S. C.), 400.

66. Daniel on Neg. Insts. (4th ed.), $226.

67. Story on Promissory Notes, § 79; Nightingale v. Withington, 15 Mass.

272.

68. Indorsement by infant.- That an infant may indorse a negotiable promissory note, or bill of exchange, made payable to him, so as to transfer the property to an indorsee, for a valuable consideration, seems to be well settled in the law merchant; and is no ways repugnant to the principles of the common law. Such indorsement is not like one made by a feme covert;

for a note payable to her becomes the property of her husband; and, further, her acts are absolutely void, whereas those of an infant are voidable only. It would be absurd to allow one, who has made a promise to pay to one who is an infant, or his order, to refuse to pay the money to one, to whom the infant had ordered it to be paid, in direct violation of his promise; and it would impair the value of such contracts in the hands of infants, if they were unable to raise money on them, as others may do. Nightingale v. Withington, 15 Mass. 272, per Parker, C. J.

69. Nightingale v. Withington, 15 Mass. 272. And see also Grey v.

71

change Act of 1882, in recognition of the justice of this rule, has declared that "where a bill is drawn or indorsed by an infant, minor, or corporation having no capacity or power to incur liability on a bill, the drawing or indorsement entitles the holder to receive payment of the bill, and to enforce it against any other party thereto." 70 A similar provision is contained in the Negotiable Instruments Law in force in many of the American States." The infant may avoid the effect of his indorsement, "or by giving sufficient notice to all antecedent parties of his avoidance, furnish to them a valid defense against the claim of the indorsee." 72 The indorsement is to be 'treated as a voidable contract, subject to the avoidance by the infant. But until it is avoided, it is to be deemed, in respect to all antecedent parties, as a good and valid transfer.

g. Ratification after infant becomes of age. As has already been said the contracts of infants are not generally void, but can be made valid by them when they become of full age.73 The note or bill of an infant is subject to ratification by him as an adult.” When duly ratified, the bill or note may be negotiated, and possesses in all respects the same qualities as if executed by an adult.75

Cooper, 3 Doug. (Eng.) 655; Drayton v. Dale, 2 B. & C. (Eng.) 293, 299; Pitt v. Chappelow, 8 Mees. & W. (Eng.) 616; Frazier v. Massey, 14 Ind. 382; Garner v. Cook, 30 Ind. 331; Hardy v. Waters, 38 Me. 450; Burke v. Allen, 29 N. H. 116, 61 Am. Dec. 642.

70. English Bills of Exchange Act, 1882, § 22 (2).

71. Neg. Inst. Law (N. Y.), § 41, which is as follows:

(Eng.) 902; Fant v. Cathcart, 8 Ala. 725; West v. Penny, 16 Ala. 186; Goodsell v. Myers, 3 Wend. (N. Y.) 379; Cheshire v. Barrett, 4 McCord (S. C.), 241.

Effect of ratification.- The case of Reed v. Batchelder, 1 Metc. (Mass.) 559, is a leading case in respect to the effect of ratification by an adult of a negotiable note executed by him as an infant. The note was made by the defendant as an infant payable to R. § 41. Effect of indorsement by infant & D., and by them transferred to the or corporation. The indorsement or plaintiff. The court said: "The quesassignment of the instrument by a cor- tion is, whether, as this was a neporation or by an infant passes the gotiable note payable to R. & D. property therein, notwithstanding that or bearer, and ratified by a new from want of capacity the corpora- promise to them whilst they retion or infant may incur no liability mained the holders, they could make therein.

72. Story on Promissory Notes, § 80. 73. Hyer v. Hatt, Fed. Cas. No. 6,977; Vaugh v. Parr, 20 Ark. 600. And see cases cited in note 37, p. 43,

ante.

74. Wright v. Steele, 2 N. H. 51; Goodsell v. Myers, 3 Wend. (N. Y.) 479; Stokes v. Brown, 4 Chandl. (Wis.) 39.

75. Hunt v. Massey, 5 B. & Ad.

a good title by delivery to the plaintiff, Robert Reed, so as to enable him to bring the action in his own name. The new promise to pay was made to H. R. of the firm of R. & D. The effect of this was to ratify and confirm the contract, and give it the same legal effect as if the promisor had been of legal capacity to inake the note when it was made. This

made it a good negotiable note from