1815. SITTINGS AFTER MICHAELMAS TERM ÁT WESTMINSTER, 56 GEO. III. 1815. BEROLLES. RAMSAY. ASSUMPSIT for the price of a chronometer. Plea-Infancy, replication, necessaries. The plaintiff was a watchmaker, and had sold to the defendant, who was a lieutenant in the Royal Navy, and at the time when the contract was made under the age of twenty-one years, a chronometer, for which he charged 681. The plaintiff's counsel insisted that a chronometer was necessary to a lieutenant in the navy. Lens, serjeant, for the defendant.-It might be necessary to a lieutenant in commission; but the defendant being out of commission at the time, it was not necessary. GIBBS, C. J.-Certain things may be necessary, but not suitable to the condition of the parties. A jury cannot determine a chronometer necessary to this defendant, unless it be necessary for every lieutenant in the navy. He was out of employment at the time it was furnished; and it was not certain that he would be sent where a chronometer was necessary. It would be most detrimental to the Dec. 1. A lieutenant in the Royal navy, under the age of 21, is not answer able for the price of a chro nometer, in an action to which he has pleaded and the repli his infancy, cation is, necessaries. 1815. BEROLLES v. RAMSAY. service, if it were laid down as a general rule that every lieutenant of the navy might contract for the purchase of a chronometer, and, though under age at the time of the contract, should be responsible for the price. I think it not a necessary. Verdict for the defendant. Best, serjeant, and Ballantine, for plaintiff. Lens, serjeant, for defendant. With respect to the necessaries for which an infant may contract, the question always bears a reference to the condition of the parties. Necessaries, in fact, is a wide relation. It is not simply in any absolute thing; it is not in food, clothes, or lodging, but in any article which may correspond with the condition and circumstances of the infant. It has been justly said, that the defence of infancy is not to be used as a sword but as a shield—the law seeks only to protect the infant from the effects of imprudence. It has been determined that an infant, a captain in the army, is liable to pay for a livery ordered for his servant, as necessaries, but not for cockades ordered for the soldiers of his company. Hands v. Slaney, 8 T. R. 578. But assumpsit on an account stated does not lie against an infant, even though the particulars of the account were for necessaries. Trueman v. Hurst, 1 T. R. 40. So, it was held by Mansfield, C. J. that an infant cannot accept a bill of exchange for necessaries. Williamson v. Watts, 1 Camp. 552. See likewise 1 Carth. 160. Com. Dig. Enfant, c. 2. It has been thought, however, that he might bind himself by a promissory note for necessaries, by analogy to the ancient doctrine, that a single bill given by an infant for necessaries was binding. 1 Rol. 729. 1. 20. R. 1 Lev. 86. But there is a material distinction between a single bill and a promissory note; that the former was not negotiable; whilst promissory notes, since the statute of Anne, are upon the same footing as bills of exchange. As a promissory note, therefore, might be indorsed over, it should seem that an infant would not be bound by such security, at least not whilst it is in the hands of an indorsee, and in the hands of the person to whom it was originally made payable, it would probably be deemed to have no other qualities than a promissory note had before the statute of Anne, that of being evidence of a debt. Single bills are scarcely known in the present day; they are obligations by bill or note without a penalty. But an infant can on no account bind himself in a bond with a penalty conditioned to pay interest as well as principal. Fisher v. Mowbray, 8 East, 330. It appears, moreover, from the judgment in that case, that an infant can give no security to bind himself for the payment of interest. Necessaries for an infant's wife are necessaries for him, but not if provided in order for the marriage. Turner v. Trisby, Str. 168. Money advanced to release an infant taken in execution may be re 1815. v. RAMSAY. covered as necessaries. Clarke v. Leslie, 5 Esp. 28. Alvanley, C. J.1803. But if the infant BEROLLES were in custody upon mesne process, it must be shewn that the debt, for which the arrest was made, was for necessaries. Regimentals sold to a member of a volunteer corps are necessaries, per Ellenborough, C. J. in Coates v. Wilson, 5 Esp. 152. The question of necessaries is to be governed by the real circumstances of the infant, and not by his ostensible situation. Ford v. Fothergill, Peak, 229. But the Court shall judge what things are necessary, Cro. Eliz. 583. An infant, however, is not liable for money lent, though laid out in the purchase of necessaries. Robart v. Knouth, 2 Esp. 472 n. per Buller J. 1783. See likewise 1 Salk. 279. Com. Dig. Enfant, c. 2. But if one lends money to an infant to pay a debt, and if in consequence of such loan he does not pay the debt, the infant shall be liable in equity; for the lender of the money stands in the place of the person paid, viz. the creditor for necessaries, and shall recover in equity, as the creditor would have recovered at common law. Marlow v. Pitfield, 1 P. Wms. 559. 1815. SITTINGS AFTER MICHAELMAS TERM, 56 GEO. III. AT GUILDHALL. Dec. 7. Where A. at Malaga,directs by letter his TH PARK V. HAMMOND. HIS was an action of assumpsit brought against the defendant, who was an insurance broker, broker in Lon- for negligence and misconduct in effecting a policy don, to insure shipped on 10007. on goods of insurance, in consequence of which the plaintiff was prevented from recovering the sum insured from the underwriters. board the Pearl from Gibraltar to Dublin; and in the conclusion of his letter adds, "I take the risk on myself from this (Malaga) to Gibraltar bay, where I shall send my letters on that the broker was liable to an action for The defendant pleaded the general issue: the facts of the case were these: On the 20th November, 1814, the plaintiff, by a letter from Malaga, directed the defendant to inshore." Held, sure 1,000l. on goods shipped on board the Pearl, from Gibraltar to Dublin, with or without convoy. negligence, in In the conclusion of his letter he writes as follows: not stating in the policy that "I take the risk on myself from this to Gibraltar the goods were loaded at Ma bay, where I shall send my letters on shore." The policy effected by the defendant was on at and from Gibraltar to Dublin.” laga. "goods The vessel sailed from Malaga on the 2d December, 1814. On the 9th, from adverse winds, they made Ceuta bay, and on the 11th sailed for Gibraltar bay, where they hove to, for the purpose 1815. PARK v. of sending letters on shore; they did not touch at Gibraltar, or come to an anchor, but forwarded their letters by a boat from the shore at Algeziras. On the same day they proceeded on their home- HAMMOND. ward voyage. On the 21st the vessel struck upon a rock, and the cargo was entirely lost. On the plaintiff's arrival in England he applied, through the defendant as his broker, to get the loss adjusted, and two of the underwriters, after making some difficulty on a point unconnected with the present question, settled; but the rest refused, on the ground that the goods having been loaded at Malaga, and not at Gibraltar, the risk never attached. Copley, serjeant, and Gifford, for the defendant, objected-1st. That the ship never was at Gibraltar, and that, consequently, there had been no inception of the risk. 2d. That the policy sufficiently coincided with the instructions given; that the plaintiff himself intended the policy to be effected in the terms in which it was effected; and that the voyage described was according to the letter of order. 3d. That there had been no species of crassa negligentia. GIBBS, C. J.-The law on this point is clear. A broker is bound to have knowledge and diligence, and must execute his orders; but it is not every mistake which makes him responsible. Where the principal imputes misconduct, he ought to shew that his directions were intelligible and precise. If the instructions had been doubtful, I should think the plaintiff not entitled to recover; for it does: VOL. I. G |