13 Ga. 467 | Ga. | 1853
By the Court.
delivering the opinion.
What I wish to deduce from these propositions is, that the husband, in this case, is liable for the contracts of his wife, dum sola, just to the same extent that he would be, if she were not an infant. It was necessary to make her a party, as in other like cases, because the action, upon the death of the husband before final judgment, would survive against her. The fact that she is an infant does not make the joinder improper, because, as an infant without coverture, she would be liable to a suit; and if still an infant at the death of her husband, should that occur, this action would survive against her, it being for necessaries. It is among the privileges of infancy, that an infant may make a valid contract for necessaries, and if she can contract, she can be sued on that contract, either sing
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The question is, does this rule apply to cases like the present, where the infant is under coverture, and is sued jointly with her husband ? It would seem that, since the husband, by the obligation of the marriage, is bound to pay her debt, if for necessaries, and has all the rights of defence which she could set up if sole, there can be no necessity for her separate defence. It is not perceivable what interest she can have requiring a defence separate from her husband.
As he is bound to pay out of his own estate, if the claim be a valid one against her, and if reduced to judgment during coverture, it would be an unnatural presumption that he would collude with the plaintiff, or negligently fail to make all legal defences. Her desire ought to be, if the claim be just, that it be paid; and such a desire is not made unavailing by not herself entering pleas — on the contrary, non-appearance is in accord with it. She being sub protestate viris, it would seem, too, to be competent for him to appoint an attorney for her, and that the case would regularly proceed without more against them both..
If, within the time limited, the infant does not appear and
The order appointing the guardian ad litem, should be full enough to correct the record, and the defendant should plead de novo by her guardian. I do not doubt but that, in our Courts, it is competent to appoint a guardian ad litem, whenever, by our rules of practice, it is competent for the defendant to plead or amend his pleas, upon his application, or upon the application of the plaintiff at any time, upon ascertainment of the fact that the defendant is an infant. In all such cases, the discretion of the Court should be much relied upon, by an appellate tribunal, and such discretion should be given to the cause by the presiding Judge, as will best promote the ends of justice.
The question is, upon whom, in such a case, does the burden of proof lie ? A trader must prove in all cases, not only that the articles furnished are suited to the age and condition of the minor, but, that the minor was not, in fact, supplied from any other quarter. If the minor is supplied from any other quarter — no matter how, or by whom supplied — his supplies are not necessaries, and he cannot recover. He furnishes her, with the burden upon him of proving that the articles furnished are necessary, and are suited to her age and condition. This being the rule, when it turns out in proof that the minor has been furnished with money sufficient to supply her with necessaries, the presumption in law is, that she has been from that fund fully supplied, and the burden rests upon him to negative that presumption, and to the extent, and no farther, 'that he pan" show that she has not been supplied, will he be entitled to .recover. We think that His Honor erred in charging, that, 'in such case, the plaintiff must recover, unless the defendants could show that the money was applied in procuring the necessary supplies for the minor.
Selling at or about the same time, cannot enable two or more to recover, albeit all may sell such articles as are suited to the age and condition of the minor. If that were the rule, it might be that a minor would be chargeable with necessaries to the full amount, over and over again. We have nothing to do with the obligation of the husband to pay his wife’s debts, in a Court of Honor. Even there, there might be sustainable limits to the obligation. Although the suit is, in this case, against the
Let the judgment be reversed.