
    A. Kraker vs. E. W. Byrum and Wife.
    
      Infant — Necessaries.
    A guardian is the sole judge of what are necessaries for His ward, and if Re furnishes her with such as Re thinks proper, she cannot Rind herself Ry contract, as for necessaries, to a third person.
    BEFORE MUNRO, J., AT ANDERSON, SPRING TERM, 1861.
    The report of his Honor, the presiding Judge, is as follows:
    
      “ This was a summary process to recover $84 44, for goods sold and delivered by the plaintiff to the defendant Mary, .while she was sole, and previous to her intermarriage with her co-defendant, E. W. Byrum. The evidence disclosed the following state of facts: The defendant Mary, together with a younger sister, then residents of Sumter District, were by their guardian, Turner Davis, entered as pupils in the Johnson University. At the time they were so entered, instructions were communicated by tbeir guardian to the Eev. Mr. Murray, tbe principal of tbe institution, to select some store in tbe town, and from tbe one so selected, and from no other, to supply bis wards witb whatsoever necessaries they might stand in need, while they remained in tbe institution. In accordance witb these instructions, tbe store of Mr. J. B. Sloan was selected for that purpose, where, during tbeir stay, a bill was contracted by tbe sisters, amounting to $99. But in what proportions they were supplied did not appear.
    “ Tbe sisters did not board at tbe institution, but were put to board witb a Mr. Arnold, whose wife accompanied tbe defendant Mary to tbe plaintiff’s store, and there introduced her; and upon tbe faith of Mrs. A.’s introduction, tbe plaintiff supplied her from time to time witb tbe articles set forth in tbe account, which be now seeks to recover.
    " It did not appear whether Mrs. Arnold, at tbe time she introduced tbe defendant to tbe plaintiff, was herself aware , of tbe instructions that had been communicated by the guardian to Mr. Murray; certain it is, however, that at tbe time of tbe introduction,'tbe fact of tbe defendants having a guardian was not made known to tbe plaintiff.
    "Tbe defence relied on was, that at tbe time tbe articles in question were purchased by Mrs. B., she was then and is still an infant, and claims tbe right to defend herself by guardian ad litem — for which purpose an order to that effect has been passed.
    “ Tbe defence was rested upon two grounds : 1. That under the Act of 1853, p. 296, entitled ' An Act to prohibit tbe collection of demands against students of tbe colleges and institutions of education in this State,’ tbe contract in question was utterly null and void.
    
      “ 2. That at tbe time of the purchase by tbe said Mary of tbe articles in question, she bad a guardian by whom she was abundantly supplied.
    
      “The first section of the Act of 1853 is in these words: ' That any contract or agreement whatsoever, express or implied, by any under-graduate of any college or institution of education in this State, who shall be a minor, with any shopkeeper, upon the sale of any wines, ardent spirits, goods, wares or merchandise, or any article of trade, or with any keeper of a hotel, tavern, house of entertainment, or livery stable, shall henceforth be held and deemed utterly null and void, insomuch that no confirmation of the same by such student, after he may have attained the age of twenty-one years, shall render such contract or agreement of legal obligation.’
    “In reference to the first ground, it was contended, in the argument, that although the pronoun ‘ he’ is the only word in the clause in question which denotes gender, inasmuch as the statute is remedial, it should receive that liberal construction which will enable it to reach the contemplated mischief; and that this can only be done by interpreting the pronoun ‘ he’ to include the feminine as well as the masculine. And in support of this position, Bouvier’s L. D. was cited, where this doctrine is laid down. ‘ As a general rule, when the masculine is used, it includes the feminine, as man sometimes includes woman. This is the general rule, unless a contrary intention appears.’ See 1 vol. p. 535, and authorities there cited.
    “Without attempting in the slightest degree to question the correctness of the rule, as laid down by Bouvier, the true criterion I take to be this: whenever a word is used in a statute which clearly denotes the masculine, whether it should be so construed as to embrace'the feminine also, we should, in the first place, look to the term itself; and, in the second place, we should endeavor to ascertain the true meaning which the framers of the law intended to attach to it, as derived from the context.
    “ It would hardly be safe to affirm that the word males includes females, or that the word sons comprehends daughters. In the Louisiana ' code, (Art. 8522,) in the French language, it is provided that the word fils, sons, comprehends filies, daughters. But without such express provision, it is clear that no such interpretation would be admissible.
    “ That the word 'mankind’ is sufficient to comprehend the entire human race will scarcely admit of a doubt. But whether the word 'man’ will inelude both sexes, must entirely depend upon the sense in which it is used. Webster, in his dictionary, in defining this word, says: ' Under this phraseology, females may be comprehended. So a law restraining a man, or every man, from a particular act comprehends women and children, if of competent age, &c.’ But again he says: ' When opposed to woman, man sometimes denotes the male sex'in general, or a male individual of the human race, of adult growth or years;’ and again, ‘man is sometimes opposed to hoy or child, and sometimes to beast.'
    
    
      “ As regards the pronoun he, it is manifest that it has a far more restricted meaning than has the noun man, for, as Webster says, it is only ' when he is used as a substitute for man, in its general sense, that it is of common gender, representing, like its antecedent, the whole human race.’ But, according to its proper meaning, he says, ' he is a substitute for the third person, masculine gender, representing the man or male mentioned before.’ And that this is its true meaning in the clause of the Act under consideration can hardly admit of a doubt, for it is a mistake in supposing the pronoun he to be the only word in the clause in question denoting gender. The noun ' under-graduate,’ so far at least as gender is concerned, and obviously the antecedent to which the pronoun he refers, is a word in all respects of equivalent meaning, and is thus defined by Webster: ' Under-graduate, a student or a member of a university or college, who has not taken his first degree.’
    
      “The practice of conferring degrees or diplomas upon females is, I believe, one of comparatively recent origin; certain it is, it had no existence at the time Webster prepared his dictionary, and it is equally certain that if the framers of the Act of 1853 had intended to include female students within its provisions, they would have selected terms much more appropriate to that purpose than the words 'undergraduate’ and the pronoun he.
    
    “ But the whole scope and tenor of the Act are sufficient to repel the construction contended for; for we can hardly conceive it to be possible that its authors could for a moment have contemplated the possibility of the female students of our institutions of education entering into contracts with the keepers of dram shops, bar rooms, taverns and livery-stables.
    " In reference to the second ground, I thought that the introduction of the defendant at the plaintiff’s store, by a lady of respectability, and who, by-the-by, testified that all the articles in the account were strictly necessaries, was sufficient to remove from the plaintiff’s mind any suspicion he may have entertained in regard to trading with the defendant, and at the same time to excuse him from the exercise of that vigilance which the law imposes upon those who undertake to supply the wants of infants, even when the articles fall within the denomination of necessaries; and accordingly decreed for the plaintiff.”
    The defendants appealed, and now moved this Court to reverse the decree, on the grounds: <
    1. Because, it is respectfully submitted, the defendant’s wife was supplied with necessary clothing and apparel suitable to her means and-station, at the time the plaintiff sold the goods to her, and there was no proof to the contrary, nor was there any proof as to her means and station.
    2. Because the contract of the defendant’s wife, • then a minor, student and under-graduate of the Johnson Female University, was, and is, utterly null and void, by virtue of the Act of Assembly of this State, A. D. 1853; and the decree should have been for the defendants.
    
      Wilkes, for appellant.
    The issue in this case is upon the plaintiff) and it will be incumbent upon him to prove that the goods, &c., for which he claims to recover, were necessaries suitable to the degree, estate and condition of the defendant. The question, What are necessaries ? “ must be judged of from the station in life and situation /of the defendant.” Archb. N. P. 18 Law Lib. 192. "If he (the infant) live away from his parents or friends, but be sufficiently supplied by them with necessaries, any additional things he may purchase on his own credit will not be deemed necessaries.” Storey vs. Perry, 4 Car. & P. 526. “ And tradesmen, before they trust infants for what might otherwise be deemed necessaries, ought to inquire and ascertain whether they are provided with them by their friends." Ford vs. Father gill, Peake, 222. “A tradesman who deals with a minor must look to himself, and take care of himself, if a minor is supplied with necessaries from any quarter, as if he purchases sufficient from one tradesman, although upon credit, any others he may purchase about the same time from other tradesmen cannot be deemed necessaries.” Burghart vs. Angerstein, 6 Car. & P. 600, 25 Eng. C. L. R; Chit, on Con. 145, 146. “ An infant cannot bind himself for necessaries, when he has a guardian or parent to supply his wants.” Guthrie vs. Murphy, 4 Watts, 80. “A remedial statute shall be so construed as most effectually to meet the beneficial end in view, and to prevent a failure of th.e remedy; construing the words largely and beneficially, so as to suppress the mischief and advance the remedy.” 2 Dwarris, 614, 632. “ A statute may be extended by construction to other cases within the same mischief and occasion of the Act, though not expressly within the words.” 2 Dwarris on Stat. 614. “ It is a sound, general principle in the exposition of statutes, that less regard is to be paid to the words that are used, than to the policy which dictates the Act.” 2 Dwarris, 597. “ Sometimes Acts of Parliament are to be expounded differently in sex, name, number, person, occasion, &c., from the letter, in order to preserve the intent.” 2 Dwarris, 628. “A thing which is within the object, spirit and meaning of a statute, is as much within the statute as if it were within the letter.” 2 Dwarris, 557, 558. “As a general rule, when the masculine is used, it includes the feminine, as man sometimes includes women. This is the general rule, un - less a contrary intention app ears.” 1 Bouvier L. D., “ Gender.” “ Or shall aid any such slave in running away, or departing from his master, or employer’s service.” “ The argument is, that his master necessarily restricts the offence to aiding a male slave, because if a female was included in the Act, the words would be her master, or his or her master. That such was not the intention, I think is very clear,” &c. The State vs. Brown, 2 Sp. 136, 137, and the authorities there referred to. See Act of 1853,12 Stat. 296, entitled “An Act to prohibit the collection of demands against students of the colleges and institutions of education in this State.”
   The opinion of the Court was delivered by

O’Neall, C. J.

In this case, I am not satisfied that the Act of 1853 applied to the contract of the defendant, and, therefore, without expressing an opinion upon that point, I shall consider the case upon the first ground: upon it, I think the plaintiff cannot recover.

According to the proof, the guardian directed the principal to select a store with which the defendant and her sister were to be at liberty to trade. Accordingly, the store of Mr. Sloan was selected, where they ran up a bill to the amount of $99.

The rule is true, that an infant unprovided for may be either liable herself or make her parent. But the qualification is, if she be provided for, or if her parent be living, she will not be liable.

On the present occasion the guardian made provision for her, and she is therefore no longer amenable for contracts made by her. It is in vain that she was introduced by a respectable lady, and that the articles were necessaries. A merchant had no right to assume what were necessaries for her against the judgment of her parent or her guardian. He confined her to a particular store, and while that was open to her, she cannot charge herself or him in another. There is no greater evil attending boarding-schools than the unlimited credit which is given by merchants to students. It is wise, therefore, to interpose checks whenever it can be done.

The defendant’s motiop. is therefore granted; the decree entered for the plaintiff is set aside, and a decree for the defendant is directed to be entered.

Johnstone, J., concurred.

Wardlaw, j., absent at the hearing.

Decree reversed.  