and with the authority of the father. He said that "a father would not be bound by the contract of his son, unless either an actual authority were proved, or circumstances appeared from which such an authority might be implied. Were it otherwise, a father, who had an imprudent son, might be prejudiced to an indefinite extent; and it was therefore necessary that some proof should be given, that the order of a son was made by the authority of his father. The question, therefore, for the consideration of the jury was, whether, under the circumstances of the particular case, there was sufficient to convince them that the defendant had invested his son with such authority. He had placed his son at the military college at Harlow, and had paid his expenses whilst he remained there. His son, it appeared, then obtained a commission in the army; and having found his way to London, at a considerable distance from his father's residence, had ordered regimentals and other articles, suitable to his equipment for the East Indies. If it had appeared in evidence that the defendant had supplied his son with money for this purpose, or that he had ordered these articles to be furnished elsewhere, either of those circumstances" (the learned judge observed) "might have rebutted the presumption of any authority from the defendant to order them from the plaintiff. Nothing, however, of this nature had been proved; and since the articles themselves were necessary for the son, and suitable to that situation in which the defendant had placed him, it was for the jury to say whether they were not satisfied that an authority had been given by the defendant." After his lordship had fully commented upon all the circumstances of the case, the jury found in favour of the plaintiff (u).

If a husband, living in a state of separation from his wife, suffer his children to reside with her, he impliedly constitutes her his agent to order necessaries for the children on his credit (v); especially as the father has a right to the custody of his child (w). And if children be left by their father under the protection of a servant, the latter has impliedly authority to provide medical assistance for the children on the father's credit, if the children meet with an accident, although it occurred from the carelessness of the servant (x). And where a wife, in the absence of, and

(u) Baker v. Keen, 2 Stark. R. 501. (v) Rawlins v. Vandyke, 3 Esp. R. 250, 252, per Lord Eldon.

(w) Rex v. Greenhill, 4 Ad. & E.

624.

(r) Cooper v. Phillips, 4 C. & P.

581.

unknown to, her husband, contracted for the board of his daughter, aged seventeen, who after some time was removed by her to another situation; and in an action by the person with whom she was last placed, it was proved that the husband had paid for the first board, although he expressed some disapprobation of it; it was held that the husband had thereby so far acknowledged the discretionary power of the wife to contract for this purpose, as to make him liable to the plaintiff upon the second contract (y).

In Urmston v. Newcomen (≈) it was mooted whether a father deserting his infant child, could be made liable to a party who supplies the child with necessaries, no further proof of any contract being given, and it was held that at all events no action could be maintained where the father had reasonable ground to suppose that the child was provided for.

Even the father of a bastard is liable, upon an implied contract, to pay for necessaries supplied for the child, although no order of bastardy has been made, if he have adopted it, by taking it to his home (a). And it seems that if the father of such a child consent, (without an order of bastardy,) to pay an annual sum for its support, he will be bound to continue to do so, or to provide for the child himself, or to give the most distinct notice of his intention to discontinue the payment in future (b). And where the father of an illegitimate child admitted it to be his daughter, and at one time allowed an annual sum for its support; and it appeared that he knew that the child, (being sixteen years old,) was boarded and clothed by the plaintiff; and neither expressed his dissent, nor took the infant away; it was held that he was impliedly liable for the board and lodging (c). But in these cases, future liability may be repudiated; and where the supposed father, having made various payments, refused to continue to support the child, until the mother obtained an order of filiation; it was held that the mother could not sue for the subsequent maintenance of the child (d).

A father in law was not, until the passing of the 4 & 5 Will. 4, c. 76, s. 57, bound by law to maintain his wife's children by a former marriage; but he became impliedly liable,

(y) Forsyth v. Milne, Sitt. after M. T. 1808, Guildhall, K. B., Paley on Prin. & Agent, 120, note (z).

(2) 4 Ad. & E. 899.

(a) Hesketh v. Jowring, 5 Esp. R. 131, cor. Lord Ellenborough. See 1

Bla. C. 458. See now 3 & 4 W. 4, c. 76, s. 70; Chit. 71; Chit. & Hulme's Stats. 825.

(b) Cameron v. Baker, 1 C. & P. 268. (c) Nichole v. Allen, 3 C. & P. 36. (d) Furilliov. Crowther, 7 D. & R. 612.

if he assumed the character of a parent towards them, by taking them into his house and permitting them to appear to be part of his family, or did other acts calculated to induce others to give him credit for necessaries supplied to the children (e). And if a father in law educate and support his wife's child by a former husband, without intending at the time to charge such child with the expenses, he cannot recover a remuneration from the child on its attaining full age (f), unless there be an express promise to repay him (g).

It has been laid down, that an infant is not liable for repairs done to his house (). He is not bound by an agreement to refer a dispute to arbitration (i); nor by the recitals in a deed made during infancy (k); nor by a cognovit executed by him (1); nor can he contract for the hire of a house for the carrying on his trade or even manual occupation (m).

The law considers that an infant has not sufficient discretion to conduct any trade or business; consequently he is not liable for goods supplied to or work done for him, in order to enable him to carry on, or in the course of, his trade, occupation or calling (n). And upon this ground he is, it seems, entitled to recover back a sum deposited by him under an agreement that he would become a partner with another person in trade at a future day; and which sum, it was agreed, should be forfeited on his breach of the agreement; he repudiating the contract, by refusing to become a partner at the prescribed period (o). Where, however, an infant agreed to become, and became, a partner with another person, and

(e) Tubb v. Hurrison, 4 T. R. 118; Cooper v. Martin, 4 East, 76; Stone v. Carr, 3 Esp. R. 1. Sed vide 5 & 6 W. 4, c. 76, s. 57.

(f) Pelly v. Rawlins, Peake, Addl. C. 226, per Lawrence, J. Ante, 49, 51. (g) Cooper v. Martin, 4 East, 76. (h) Anon. 3 Salk. 196. Sed qu. He is punishable for permissive waste, id. (i) Bac. Ab. Infancy, (I3); Watson on Arb. 40, 1, 2.

(k) Milner v. Lord Harewood, 18 Ves. 274.

(1) Oliver v. Woodroffe, 4 M. & W. 650.

(m) Lowe v. Griffith, 1 Scott, 458; 1 Hodges, 30, S. C.; but he will be liable if such house be a residence necessary and suitable to his station in life; id.; ante, 144, note (d).

(n) Whywall v. Champion, Stra. 1083; Dilk v. Keighley, 2 Esp. R. 480; Warwick v. Bruce, 2 M. & Selw. 209, per Lord Ellenborough; Goode v. Harrison, 5 B. & Ald. 147; Thornton v. Illingworth, 2 B. & C. 824; 4 D. & R. 545, S. C. But if he use goods (supplied to him in his trade), as necessaries for his household purposes, he is liable; Tuberville v. Whitehouse, 1 C. & P. 94.

(0) Corpe v. Overton, 10 Bing. 252; 3 M. & Scott, 738, S. C. And see Wilson v. Pearse, Peake, Addl. Cases, 196, in which Lord Kenyon is reported to have decided, that a deposit paid by an infant upon a public-house agreement, may be recovered back by him upon his refusal to complete the purchase.

they paid a premium to the defendant on taking from him a lease of premises; and the partnership continued, and the partners enjoyed the premises, for a short period during the infancy; it was held that the infant, who avoided the lease on coming of age, could not recover back the money he had paid for the premium (p).

An infant, as he cannot trade, cannot be a bankrupt (q); nor take the benefit of the insolvent act, not being in a situation to execute the necessary warrant of attorney (r); or be sued upon his covenant as an apprentice (s); nor is he liable on the custom of the realm, as an innkeeper (t). Neither is an infant liable as

a partner with another person in a business (u).

As an infant is not competent to state an account, even for necessaries, he is not liable on an account stated (x); nor on a bill of exchange to which he is a party, although it were given for necessaries (y). But such bill is good as against other parties thereto (z). According to some ancient authorities, an infant is liable on his single bill, that is, a bond without a condition, for necessaries (a); but this may now be doubtful; for he cannot state an account, and the giving such an instrument necessarily supposes the settlement of an account. At all events he

(p) Holmes v. Blogg, 8 Taunt. 508; 2 Moo. 552. In this case there was a partial enjoyment of the consideration. But Gibbs, C. J., in delivering judgment, cited, with approbation, a dictum of Lord Mansfield, in Drury v. Drury, or Lord Buckinghamshire v. Drury, Wilmot's Notes, 177; 3 Bro. P. C. 492, 2d ed. S. C.; 2 Eden, 60, 72, S. C. "That if an infant pay money with his own hand, without a valuable consideration for it, he cannot get it back again."

(9) Ex parte Sydebotham, 1 Atk. 146; Ex parte Moule, 4 Ves. 603; Cullen, 26; Eden, 2nd ed. 1, 44; O'Brien v. Currie, 3 C. & P. 283. A fiat in bankruptcy against him is void, and not merely voidable; Belton v. Hodges, 2 M. & Scott, S65; 9 Bing. 365; S. C.

(r) Defries v. Davies, 1 Bing. N. C. 692; 1 Scott, 594; 1 Hodges, 103; 3 Dowl. P. C. 629, S. C.; Weaver v. Stokes, 1 M. & W. 203; Barton v. Haworth, 5 Mad. 50. (s) Ante, 115.

(x) Trueman v. Hurst, 1 T. R. 40; Ingledew v. Douglas, 2 Stark. R. 36; Hedgley v. Holt, 4 C. & P. 104; Oliver v. Woodroffe, 4 M. & W. 650.

(y) Williams v. Harrison, Carth. 160; Holt, R. 359, S. C.; Chit. Bills, 8th ed. 21, 2; 224; Bayley on B. 5th ed. 38, 46; Williamson v. Watts, 1 Camp. 552. It does not appear in the latter case what party to the bill the plaintiff was.

(≈) Taylor v. Croker, 4 Esp. R. 187; Jones v. Dursh, 4 Price, 300. The infancy of the payee no defence in an action by indorsee against drawer, Grey v. Cooper, 3 Doug. 65, post, 155, 156.

(a) Russel v. Lee, 1 Lev. 86; Co. Lit. 172 a; Cro. El. 920; Bull. N. P. 155 a; 3 Burr. 1801; 8 East, 330, 1; Com. Cont. 626.

cannot be bound by a bond with a penalty (b), especially if interest be thereby made payable (c). If a party accept a bill after he has attained the age of twenty-one, it is no objection. that it was actually drawn before, in discharge of a debt incurred whilst he was an infant (d). But where goods are delivered to a carrier, consigned to an infant before he becomes of age, but do not reach him until afterwards, he is not liable (e).

An infant is not liable on his warranty of a horse sold by him (f); and a lieutenant in the royal navy, under the age of twenty-one, was held not to be responsible for the price of a chronometer, supplied to him at a time when he was not in commission, and the price of which was charged 687., and there being no proof that it was essential that he should have such an article (g).

Neither does the law consider that an infant has sufficient discretion properly to apply money placed in his hands. Consequently he canuot hold the office of clerk of a court of requests, if it be part of the duty of that officer to receive the money of the suitors (h). And he is not liable for money lent and delivered to him to purchase necessaries, although the money be applied by him to that purpose (i). But equity will relieve in such case by considering that the lender stands in the place of the infant's creditor for necessaries, who has been satisfied (k). Money paid for an infant for necessaries, is however recoverable from him (1). And although he is not liable for money received by him for the plaintiff's use, under a contract express or implied; yet, where he wrongfully embezzles money, he may be sued as for money had and received (m). The origin of the claim is to be regarded. Where, on the other hand, it arises strictly out of a contract upon

(b) Ayliffv. Archdale, Cro. El. 920; Co. Lit. 172a; Corpe v. Overton, ante, 149, note (o).

(c) Fisher v. Mowbray, 8 East, 330; Baylis v. Dineley, 3 M. & Selw. 477. (d) Stevens v. Jackson, 4 Camp. 164. See 2 Rose, 284; Chit. Bills, 8th ed. 22.

(e) Griffin v. Langfield, 3 Camp. 254; Dawes v. Peck, 8 T. R. 350.

(f) Howlett v. Haswell, 4 Camp.

118.

(g) Berolles v. Ramsay, Holt, N. P. R. 77.

(h) Claridge v. Evelyn, 5 B. & Ald. 81. He may hold the office of clerk

of the peace, for this is a ministerial office; Alcock & Napier, 434, Irish Reports.

(i) Darby v. Boucher, 1 Salk. 279; Ellis v. Ellis, 5 Mod. 368; Bull. N. P. 154; Probart v. Knouth, 2 Esp. 472, note. But a payment to him of wages to enable him to pay for necessaries is good, Hedgley v. Holt, 4 C. & P. 104. (k) Marlow v. Pitfield, 1 P. Wms. 558.

(1) Ante, 144.

(m) Bristow v. Eastman, 1 Esp. 172; Peake, R. 223, S. C.; see Bac Ab. Infancy, (I).