
    Jones and Danforth vs. A. G. Colvin and wife.
    Where a daughter (an infant) resides with her mother, before marriage, it will be presumed that she was properly maintained, until the contrary is proved ; for the mother is considered to be the proper judge of what is necessary for her, and should be consulted before a credit is given to her. Vide Connolly ads. Assignees of Hull, 3 M’C. Rep., 6 S. P.
    Before Gantt, J., at Edgefield, Fall Term, 1840.
    This was an action on merchants’ account, for goods sold to Mrs. Col-vin, whilst a minor, and before her marriage. The defendants pleaded infancy, to which the plaintiffs replied that the goods were necessaries. The plaintiffs proved their account. The defendants established the infancy of Mrs. Colvin at the time the goods were sold, and that she lived *with her mother and was properly maintained by her. The point made in the case was, that as Mrs. Colvin, whilst single and under age, lived with and was properly maintained by her mother, she could not bind herself to a stranger for necessaries. The jury, under the charge of the Judge, found a verdict for the plaintiffs.
    The defendants appeal, and now move the Court of Appeals for a new trial, on the grounds taken upon the circuit.
   Curia, per

Earle, J.

The question raised by the motion seems to have been directly decided in the assignees of Hull vs. Conolly (3 McC. G,) and indeed does not appear to have been then considered open for debate. In that case, as in this, the infant defendant lived with her mother, and although there was no proof that suitable maintenance was provided, yet Mr. Justice Nott held that it ought to be presumed, until the contrary be proved ; that the mother was the fittest judge of what was necessary in the article of clothing, and that the plaintiff ought to have inquired into the circumstances, and consulted the mother, before he suffered the debt to be contracted. On that ground, mainly, was the new trial granted. In Bainbridge vs. Pickering (Bl. Rep. 1325), which was a similar action against a female defendant, not of full age) living with her mother, who provided properly for her, Gould, J., said the child, in such case, cannot bind herself to a stranger for what might otherwise be allowed as necessaries ; and that no countenance should be given to such persons as enveigle young women into extravagancies, under the pretext of furnishing them with necessaries, without the previous consent of the parent. It was also held by Lord Kenyon, in Ford vs. Fothergill (1 Esp. Rep. 211), and by Ch. J. Best, in Cook vs. Denton (3 Car. and Pay. 114), and it would be of very mischievous consequence if the law were otherwise. The protection intended to be afforded to infants, against the improvidence natural to their inexperience, would be rendered ineffectual ; and the discretion and judgment of the parent, in prescribing what the child shall wear, would be wholly superseded. In the case before us, there is no room for presumption, for the proof is, that the defendant’s wife, for whom the goods were furnished, was suitably maintained by her mother, *with whom she lived. The goods, therefore, in a legal sense, were not necessaries, and she could not bind herself to pay for them.

The motion is granted :

the whole Court concurring.  