23 Vt. 378 | Vt. | 1851
The opinion of the court was delivered by
The question of the interest of Legrand Bradley is not so stated in the bill of exceptions, as to enable us to understand the assumed facts, upon which the court did decide it. There is no finding expressly of all the facts testified to. The depositions are not in terms referred to, as containing the facts found in the case. And the bill of exceptions professing, as it does, to state the facts found by the court, and no reference being made to the depositions for any other facts, it is impossible for us to say, that the court found other facts, than those detailed. Expressio unius est exclusio alterius.
But if we compare the facts stated on the face of the bill of exceptions with those detailed in the depositions, it will not enable us to find with any more certainty the precise facts, upon which this question of interest was decided. In order to make Legrand Bradley interested, in legal contemplation, it must appear, that the money, when recovered of the defendant, will go to him, or to pay his debt, and that, if not recovered, he will still be holden for the debt, or that he is bound to indemnify the plaintiff in regard to costs and expenses of this suit.
His deposition does not state, that he owes any debt to the plaintiff, or that he is bound to indemnify the plaintiff in regard to costs ' <or expenses of the suit. One might naturally enough believe the
In regard to the other points in the case, we think, — 1. That it does, by reasonable intendment, appear, that the board, under the circumstances, was necessaries. This is undoubtedly matter of fact. But if the parent, or guardian, of an infant do not supply the infant with such indispensable necessaries as food and clothing, without which he must perish, he has no alternative but to pledge his own credit, or become a pauper; for he cannot, according to the more recent and better considered cases, compel the father to afford support, except by a proceeding under the statute, which is to be instituted by the public authorities. There is certainly nothing in the present case to raise any doubt, that the board was strictly necessaries.
2. It seems to us too much of a refinement, for common minds, to argue, that the board was not the real .consideration for the note.
3. In regard to the general question of the defendant’s liability,
But Judge Story, in his treatise on promissory notes, after stating this in general terms, raises a query in a note, how far this holds in regard to necessaries. And by referring to the books, which he cites, it is evident he considered the question an open one. In Com. Dig.', Tit. Infant, B, 5, it is laid down, totidem verbis, that an infant is liable upon a single bill, or an insimul com-putasset, — which is, in my judgment, equivalent to saying, that he is liable upon a promissory note. In 2 Dane’s Abr. 365 it is said, the infant is liable upon a security for necessaries, the consideration of which may be inquired into: — hence by a note before negotiated, or after dishonored, or not negotiable, — citing Cro. Jac. 106, B. N. P. 126, 1 D. & E. 40, supra. The same rule is recognized in Stone v. Dennison, 13 Pick. 1, and expressly decided, upon great consideration, in Earle v. Reed, 10 Met. 387.
We may, then, we think, regard the question as still in dubio, and justifying the court in treating it as still an open question. And being so, we should desire to put it upon safe and consistent ground. We are led, then, to inquire, what is the true principle lying at the foundation of all these inquiries.
We think it is, that the infant should be enabled to pledge his credit for necessaries to any extent, consistent with his perfect safety. All the cases and all the elementary writers expressly hold,
And if it were not for maintaining the unimpeachable character of negotiable paper, in regard to consideration, so that all might safely take it, I do not see, why the rights of infants, in regard to acceptances and notes negotiated, might not be saved by allowing them, as an exception to the general rule, to show their infancy, and then for the plaintiff to meet it by proving the contract to have been given for necessaries. But this has not been done, and probably could not be done, .without too great an infringement of the rules of law in regard to negotiable paper, while current. And as confessedly the infant may prima facie avoid his note, or bill, by merely showing the fact of his infancy at the time of making the contract, what is the impropriety in allowing the plaintiff to recover in all such cases, by showing the consideration to be for necessaries.
But so long as the contract remains in a form to be open to all defences, we see no reason whatever, why the party should be driven out of court upon mere form. The case of Conn v. Coburn, 7 N. H. 368, where it was held, that an infant was liable to one who signed a note with him-, as surety, given for necessaries, who had
The chief reason, perhaps, why an infant is not liable at law, and is liable in equity, for money borrowed, and which is actually expended for necessaries, is the want of privity between the lender and the one who furnishes the necessaries. If one buy necessaries for an infant with money, or if, at the request of the infant, he pay for those already furnished, the infant is liable, I apprehend. That privity is here established. It is difficult to perceive, why, if an infant is liable on a single bill, which is a bond without penalty, given for necessaries, he should not be equally so on a promissory note, or an account stated.
In regard to interest, it seems to us, upon principle, if the infant is not to be held liable for interest, the price should be proportion-ably increased, — which is the same thing. It is incomprehensible, how, if one, for board, deserves to have $2,50 per week in hand, if the payment be delayed for years, the same sum is to meet the obligation. One might as well hold, that a merchant should furnish goods to infants at cost, without freight ■ even. The rule has no force, when carried to that absurd length.
Lord Ellenborough says, in Fisher v. Mowbray, 8 East 330, “For which [interest] an infant cannot give a security.” It is certain, that the English courts do not expend so much of their ingenuity in devising modes of accumulating interest, as the American courts, through the cupidity of suitors, are compelled to do. Interest on an account is seldom reckoned there, except for unreasonable delay in payment, — which is generally referred to the jury, and which does not apply to the case of an infant, to whom laches are
The dictum, or decision, in Taft v. Pike, 14 Vt. 405, that interest will not be allowed on an account against an infant, is well enough in that case ; but the point was not made in argument then, and was not much considered, one would suppose, and no authority is cited, except Fisher v. Mowbray.
Judgment affirmed.