
    *John S. Edwards, Graves Spearman and Wife, Administrators of John Taylor v. Francis B. Higgins, John N. Lindsay, Henry Coate, and Clement Mitchell.
    The rules as to necessaries for infants are the same in equity as at law. An infant is not even bound by bis contracts for necessaries, if his guardian, who could have supplied him, was at hand.
    The bill was filed in this case to obtain relief against a judgment at law, obtained in the name of Mr. Higgins, the commissioner, on a bond, given by the late John Taylor for the purchase of a tract of land sold for the purpose of partition by commissioner Higgins, in which Taylor, Sarah Stribling (afterwards Mitchell), and A. Stribling were jointly and equally interested. Sarah Stribling married C. Mitchell, one of the defendants, whilst they were both under age. Mitchell was anxious to get paid his wife’s proportion of the money due on the bond, and he applied to John Taylor for payment. Taylor made him several payments, partly in money, and partly in horses. These applications were repeated by Mitchell, who went to the house of John Taylor soliciting payments. It was in evidence that payments were made ; but it was also proved that Taylor knew that Mitchell and his wife were under age. This, together with the fact proved of his putting a higher value on the horses delivered in part payment than they were worth, was relied upon by the defendants, Mitchell and Lindsay, who afterwards purchased from Mitchell the debt due by Taylor, as a sufficient ground for refusing' to allow Taylor these payments in discount.
    DeSaussure, Chancellor. How honest the defence set up may be is not for me to say; but a court of justice ought not to permit it to prevail, if it can help it; for it is proved that some of the payments were with the *knowledge, and in the presence of Henry Coate, the guardian of Mrs. Mitchell, and were drawn in his handwriting. This does seem indeed to come very closely to consent and approbation of the payments. Here then is a very mixed and doubtful state of thing's. Lindsey, the other defendant, is son-in-law to Coate, and after these transactions, and with a knowledge of these payments, he bought from Clement Mitchell his interest in this debt. It is stated, and not denied, that he purchased for a price considerably less than the amount of the debt, supposing these payments by Taylor and his representatives should not be allowed, and that with the knowledge of Coate, who was well acquainted with the payments which had been made. There is a strange looseness in all these transactions, on all sides; and all the parties are in fault except the commissioner. The pure justice of the case would be, to give Taylor and his representatives credit for the actual cash payments, and the real value of the property delivered to Mitchell, and to compel Taylor’s representatives to pay the balance. But we must go by rules. If the plea of infancy by Mitchell is applicable, and is a legal bar, we must obey the law. Infancy is, in general, a bar to liabilities for contracts, except for necessaries. Does the rule apply to receipts ? It was argued that receipts are not contracts. That is true. But I fear the principle applies, that “ you shall not deal with infants, because of their immaturity of understanding, and incapacity to transact business,” in the language of the law. It is meant as a shield to protect them from injury. It is often used as a sword to do wrong to others, as in the case before us. By a strange anomaly, persons under twenty-one years of age are allowed to be witnesses of the contracts of others, yet not to contract themselves, except in some particular cases. They are indeed permitted to contract marriage, the most solemn of all transactions, and *yet they are not allowed to contract for the finery they wear at their marriage. They may be witnesses to give evidence in civil and criminal cases, which may take away the lives of the parties against whom the evidence is given, yet they cannot contract, and be bound for it, for the horse on which they ride to court, in order to give that evidence. Minors up to the age of twenty-one years in their own affairs, they may act much earlier as executors, and manage great estates, but not their own little affairs.  They may be attorneys in fact, and transact large affairs for others, yet nothing for themselves. I state these anomalies to shew that it is a difficult subject. The remitst be some rule, yet there cannot be framed a rule which may not work injustice. In the case we are considering, Mitchell represented the interest and right of his wife. Now, as an infant is allowed to contract a valid marriage before twenty-one years of age, he must be allowed to contract such debts for the maintenance of his wife and children as are essential to enable him to sustain the relation of husband and wife. But they must be reasonable and necessary expenses. See Reeves’ Dom. Relat. p. 234. In the case before us, the husband solicited payments as necessary for the support of his family, and there is no doubt he was in necessitous circumstances. I acknowledge I have considerable difficulties in this case, but I must come to a conclusion. What is the honesty and justice of the case is plain enough. He who pays a debt once ought not to be compelled to pay it again; unless guilty of fraud and imposition, and then only to the extent of the imposition. He who receives payment of a debt once, cannot, honestly, ask for the payment a second time, unless he has been imposed upon, and then only to the extent of the imposition. The leaning of every correct mind must then be unfavorable to the demand of a second payment.* Yet it is agreed, that infancy must have protection against its own follies, and the cunning rapacity of others. So far, therefore, as an imposition was practiced by John Taylor on Clement Mitchell, by placing a higher value on the horses delivered in payment, relief must be given, notwithstanding the receipts. As to the bona fide amount of the payments, I incline very strongly to think, John Taylor’s representatives ought to have credit for them. Clement Mitchell, though a minor, was allowed to contract marriage : he did so ; and was poor, and supported his family with difficulty. What is necessary to sustain the relation of husband and wife, he is allowed to do, or contract to do. Mitchell earnestly solicited payments from Taylor, to enable him to sustain the burthen of his family, and the relation and duty of a husband. It was a debt due to the wife, and she had a right to subsistence out of it. Some of the payments were made in the presence and with the knowledge of Coate, the guardian, who, it is stated, wrote some of the receipts. This is a very strong, indirect sanction, qualified even as it was by Coate. The age of Mitchell was nearly, if not entirely, twenty-one years of age, at the time of these transactions. Now the receipt of a cent after attaining that age, or the acknowledgment of the payments and the balance really due, would sanction all the preceding transactions.
    In 1 Vern. 132, it is stated, than an agreement being void (or, as I would say, voidable,) against an infant, was yet supported, the infant having received interest on it, after he was of full age. So, even as to real estate, if an exchange is made, and the infant continues in possession after he comes of age, he shall be bound by it. 2 Vern. 225.
    1 do not think that the assignment by Clement Mitchell to Lindsey, the son-in-law of Coate, alters the case. He knew of the payments, an(J purchased the claim of Mitchell, on the representatives of Taylor, on speculation. He, therefore, stands in the shoes of Clement Mitchell, and can have no more or other protection than Mitchell. The result is, that I must decide for the complainants, though with doubt and hesitation as to the law. It is, therefore, ordered and decreed, that it be referred to the commissioner to examine and report what payments were made by John Taylor, or his representatives on his bond, to the commissioner ; and that such payments as were made in horses or other property be reduced to their proper value; and that these payments be credited on the bond of Taylor, and his estate held liable only' for the balance. And that, in the mean time, the commissioner, and Clement Mitchell, and J. W. Lindsey, and the sheriff, be restrained from collecting the money on the judgment at law.
    From this decree the defendants appealed, on the following grounds, viz :
    “ Because the contracts and receipts which Clement Mitchell executed with John Taylor, in his lifetime, were voidable, as Clement Mitchell was an infant, under the age of twenty-one years; that they were not for necessaries ; and that he never confirmed them since he arrived at the age of twenty-one years: and that they, therefore, ought to be set aside, and the circuit decree reversed.
    January 30, 1827.
    J. J. Caldwell, for the appellant.
    Infants are not bound by their contracts, except for necessaries. A horse is not a necessary' article. Bates v. Counts, Harp. Rep. 404. Rainwater v. Durham, 2 Nott & M’Cord, 524. The courts of equity have not extended the rule further than the law courts. From Mitchell’s necessitous circumstances, the chancellor assumed, that the money paid, and horses delivered, were necessary to enable him to sustain *the duties of a husband ; but there is no proof on the subject. If an infant even purchase an article to on trade or business, he is not liable. 3 Salk. 196. It is admitted, that if an infant assume a debt after he comes of age, he is liable; but this case furnishes no such evidence : the payments were all made in a short time, and cannot be put on the footing of necessaries. 1 Johns. Cha. Rep. 3. 4 Vesey, 362.
    Bauskett, contra.
    If a female ward marry, the rights of the guardian cease over the person. But it is doubtful if the same effects be produced as to property. Reeves’ Dom. Rel. 327. It is admitted that a minor cannot make a contract to bind himself. There is a distinction between such contracts and releases. The infant husband would have a right to the wife’s dioses in action, and the possesion of her personalty, and, therefore, might give releases for them. 2 Vern. 225. An acquiescence in a transaction during minority, after full age, will amount to an affirmation.
    O’Neil, in reply.
    The receipts are the only evidence of payment. These, Mitchell was incompetent to give effect to : his answer then was the only evidence. The right to receive the money was in Higgins. The receipt, therefore, was no more than a contract to release. Cro. Car. 490.
    Feb., 1827.
    
      
      
         By the act of 1824, minors cannot act as executors.
    
   Curia, per

Colcock, J.

The doctrine of law, by which this case must be decided, is too familiar to require much comment. An infant is not bound by his contracts, except for necessaries; and for them only when he has no natural or legal guardian at hand to provide them. And in this case the guardian was at hand, and all necessaries that were required could have been obtained in a legal manner. There could not be found in the books a *case which would more satisfactorily expose the wisdom of this doctrine of the law; a doctrine equally obligatory on a court of equity as on courts of law. While the law was pursuing a course calculated to protect the rights of this infant pair, Taylor interposes and by his arts defeats, or attempts to defeat, its wise and benevolent intentions. The officer of the court is made the repository of the property of the infants for a time ; and a guardian is appointed to take care of, and preserve those of the wife. Taylor, notwithstanding this, pays money to this young man, and sells him some horses at nearly double their value; and this after repeated warnings on the subject: and now it is said by his representatives, that it is hard they should be compelled to pay this money twice. He well knew, that these receipts could not be set up against his bond. If then he chose to lend this young man so much money and sell him horses, he must have intended to rely on his honor for remuneration. The answer of Clement Mitchell charges imposition on Taylor, and states that the last receipt includes all he ever received. And when we look to the assignment, I think it is clear that he meant to allow this receipt as a payment, and that he has sold only7 so much of his demand as may remain after that sum shall be deducted. In this point of view, he may be said to have confirmed this receipt, which, though voidable as an act done while an infant, may be made obligatory after he has arrived at age. But as to the horses, or any other sums of money, if any such were received, there is no principle, which we can apply, by which they can be admitted as payments. The amount of the last receipt then being deducted, the complainants are liable to pay the balance : and it is ordered that the decree of the chancellor be so modified as to meet this view of the case.

Decree modified.  