| Superior Court of New Hampshire | Dec 15, 1834
The verdict has established the fact that the subject matter of the purchase was necessaries. If the plaintiff, at the defendant's request, paid the money for necessaries, which the defendant could not otherwise procure, that money takes the character of necessaries.
“ Money advanced to an infant, to procure him liberation ‘ from an arrest which was for necessaries, or where he was £ in execution, may be recovered in assumpsit; but to entitle’the plaintiff to recover he must show the real transac-ción, and that the money was advanced under such circum- ‘ stances.” 5 Esp. Rep. 28, Clark vs. Leslie.
In 3 Wendell’s Rep. 379, Goodsell vs. Myers, the plaintiff declared as endorsee of a negotiable note, and the court held that the note of an infant was voidable, not void.
This seems to be the better opinion. 7 Cowen 22, Willard vs. Stone; 13 Mass. 239; 2 D. & E. 766, Cockshott vs. Bennett; 1 N. H. Rep. 74; 3 N. H. Rep. 314, Such note may be affirmed after he comes of age ; and without such affirmation a suit may then be sustained upon it, unless the defendant elects to put in a plea of infancy in bar.
The authorities cited by the defendant’s counsel, show conclusively that no action can be maintained upon such note, if the promissor refuses to pay and relies upon his infancy ; but this is a personal defence, which he may or may not interpose. It is incorrect, therefore, to regard such note as entirely void, although it furnishes no cause of action against the maker if he relies upon his infancy; and, if he insists upon that defence, a suit cannot be sustained by reason of a new promise made after the action was commenced. 6 N. H. Rep. 432, Merriam vs. Wilkins.
There is no reasonable ground of distinction, in this respect, between a negotiable note and one which is not so, as there is no insuperable objection to holding that the former may be avoided in the hands of an endorsee.
It is very clear that this note cannot be regarded as an ex-tinguishment of the debt of Coburn, so as to make him im
The giving of 7'a note, by an infant, for a debt due for necessaries, does not cancel that debt, unless the note be paid, 3 N. H. Rep. 348; and the giving of such note, with a surety, certainly does not furnish evidence that the creditor intended to discharge the infant from all responsibility on account of the demand due him by reason of the articles furnished.
If the infant is not liable on the note, as he would not be if he elected to avoid such liability, an assumpsit upon the delivery of the goods must be considered as subsisting against him, and the note of the surety be regarded as a collateral security for the payment.
In this case, nothing was paid at the time by the plaintiff. He only became surety for the payment. That was the contract as agreed to by all the parties. Had the plaintiff given his sole note, the case might have been different. He would then have assumed the whole liability, by the terms of the agreement, and the goods have been delivered entirely upon his credit. The defendant would have had no farther concern with it, and no right to interfere.
But that was not the case here. The defendant had the right to pay and take up the note given by himself and the plaintiff, and he had this right only because he was in fact a debtor. He most unquestionably had a right to pay a note upon -which he was a promissor. Suppose he had paid, whose debt would he have discharged ? If the plaintiff’s debt, then he must have had a claim against the plaintiff. But no such claim could have arisen upon such payment. If he had paid, then, he would have discharged his own debt. But how could this be, if his debt had been paid by the giving of the note itself ? Had the defendant paid the note, no right of action would ever have accrued to the plaintiff
Judgment for the plaintiff.