
    
      John Aaron, Adm'r vs. John P. Harley.
    
    Assumpsit on a promissory note: plea — infancy: replication — that the note was given for a horse, which was necessary to the defendant and suitable to his fortune and station in life: general demurrer and judgment thereon for plaintiff.
    Circumstances may exist, that would render a horse, suitable to an infant’s fortune and station in life, a necessary.
    A promissory note given by an infant for necessaries is valid.
    After a party has by general demurrer taken the judgment of the Circuit Court and the Court of Appeals, he will not be allowed to withdraw the demurrer and plead over.
    
      Before Fe.ost, J., at Barnwell, July, Extra Term, 1852.
    The report of his Honor, the presiding Judge, is as follows :
    
      “ The action was brought on a note of the defendant for $ 130, payable to John H. Anderson (the plaintiff’s intestate) or bearer. The defendant pleaded infancy. The plaintiff replied that the note was given for a horse, which was .necessary to the defendant and suitable to his fortune and station in life. To this replication the defendant demurred, and plaintiff joined in demurrer. The case was submitted on this issue of law; and after argument, judgment was rendered for the plaintiff on the demurrer.
    “ When the demurrer admitted the statement contained in the replication, I know no rule of law to prevent the plaintiff’s recovery on the first ground of appeal.
    “ Even if a negotiable note, given for necessaries by an infant, is not actionable by an endorser or bearer, yet being a contract of the same degree with the consideration of the note, there seems to be no good reason why it may not be the subject of an action by the original payee, or his administrator.”
    The defendant appealed on the grounds :
    1. Because a horse is not a necessary, and therefore, the defendant being an infant, ought not to have been held liable for the purchase money.
    2. Because a negotiable note given by an infant, even for necessaries, is void.
    And failing in his motion for a reversal of the circuit judgment, then, the defendant moved for leave to withdraw his demurrer, and plead -to the replication, on the ground, that the case of Rainwater vs. Durham, (2 N. & McC. 524) is sufficient authority for the demurrer, so long as it stands -unreversed.
    
      J. T. Aldrich, for the motion.
    
      Bellinger Sf Hutson, contra.
   The opinion of the Court was delivered by

Waedlaw, J.

Circumstances may be imagined that would render a horse, suitable to an infant’s fortune and station in life, a necessary: and the demurrer to the replication admits that such circumstances exist in this case.

Our Court has not only held that a note given by an infant for necessarieSj is valid, (Dubose vs. Wheddon,A McC. 221): but has sustained the more doubtful proposition, that the infant is liable upon his implied contract to refund money paid for necessaries by his surety on a note given for them. (Haine vs. Tarrant, 2 Hill, 400.)

The defendant made no motion to amend on the Circuit: but desires to have the benefit of such a motion made here, after he has by general demurrer and appeal, taken the opinions of the Circuit Court and Court of Appeals, and found both unfavorable to him. To permit such a course would tend greatly to delay plaintiffs ; and therefore the motion must be denied, according to the general rule laid down in Moore vs. Burbage, 2 McM. 168.

O’Neall, Frost, Withers and Whttner, JJ., concurred.

Evans, J., absent at argument.

Motion dismissed.  