
    Mary & Martha Connolly, ads. Assignees of Hull
    
    
      A contract for the purchase cf goods by two, may be for their equal, and' no: for their joint benefit.
    if a contract be made by an infant and an adult, they can not both be sued thereon, but the action should be brought against the adult only.
    As infant tvho lives with and is properly maintained by her parents can not bind herself to a stranger for necessaries; and where daughters live with their mother, ft should be presumed that they were properly maintained by their parent. until the contrary be proved; for the mother being the best $udge of what is necessary for them, should be consulted before credit bs given them.
    Tried at Charleston, before the late recorder Judge Drayton, of the city court, in. January Term, 1825, who sent up the following report:
    “ The sale and delivery to Both of the defendants upon their joint contracts were fully proved. Mr. O’Hara proved that one of the defendants was an infant about 19 years old; that the defendants were young ladies living in Charleston, But he knew nothing oftheir pecuniary means. The counsel for the defendants contended that as the suit brought was upon ajoint contract, one of them being an infant', upon whom no contract was obligatory, the plaintiffs could not maintain their action. He cited 1st, Chittifs Plead..2Q and 32. The counsel also insisted that the articles furnished were not necessaries. The plaintiffs counsel replied that the account was for necessaries fitted to the situation of the infant as would appear by an inspection of the items. The general Yule in pleading, appeared to me to be correctly cited, that when ajoint action is brought against two and one of them did not enter into the contract, or was legally incompetent £o have done so, in either event, the plaintiff could not recover against both. But the facts in this case do not support the position relied upon. If the articles sold- to the infant were necessaries, the infant was liable. An infant can enter into a contract for necessaries, which is neither void nor voidable, fist. Coin, on Contr. 154.) If an infant contracts for his necessary diet, apparel, he. it shall bind him. {Ibid, 155. Coke on 172 ) , Such necessaries must appear to, be suitable to the infants estate and condition, of which the court and jury will determine. (Ibid. 155.) It having been proved that the sale was made at the request of the infant, and the court being satisfied that the articles for which its decree was prayed for, were necessarily fitting her situation in life, she was legally responsible to pay for them. Being legally responsible, her case does not come within the principle re? lied upon by her counsel. If the plea'of infancy had been generally sustained, or if it had been replied that the contract was for necessaries, and that replication had been overruled, then the defendant must have prevailed; but as neither of these decisions were made, the objection is not supported. I therefore-, decreed for the plaintiffs, deducting such items as did not seem to me to come within the description of articles necessary for one in the situation of the infant defendant.”
    A motion for a new trial was now made on the grounds:
    1st. That the action was brought .on a joint contract, and it was established in evidence that one of the defendants was a minor, and no evidence was offered by the plaintiff to shew that the goods for which the action was brought were necessaries. .
    2nd. That the decree is otherwise contrary to law and the weight of evidence.
    
      Argued 10th March, 1825.
    
      Bailey for the motion.
    Cited 3 Bap. Rep. 76. 5 JOe. 480, and contended that in a joint action, if one is an infant, the plaintiff cannot enter a nol. pros, as to one, and go against the other. (5 Johns. Rep. 160.) There should havebeen some other evidence, than the inspection of the judge, that the articles were not necessary (3 Bac. Ab. 593.) Averment of plaintiff that the things are necessary, must be proved. (1 Com. on Con. 156. 1 M‘Cdrd 573.) ■ A negative cannot be proved. (Buller 298.) Must appear to be clearly necessary (% JYott and M* Cord 525. Grant onJYew Trials, 178.)
    Besides, defendants lived with their mother, and an infant living with her parent who provides, is not liable fof necessaries. (I Com. on Cont. 156.) Infant cannot bind herself for the benefit of others. Joint contract presumed for the benefit of both; both bound for the whole. Here is $56 contracted in one day. Bound to enquire. (1 Com. Con. 157.)
    
      Dunkin, contra;
    said the mother was proved to be indigent.
   Nott, J.

The court concur with the Recorder in the general view which he has taken ot this case. But a question has arisen in the course of the argument which was not made in the court below, on which it has become necessary to express an opinion and which will lead to a different result. This appears to be a joint contract for the equal benefit of both the defendants. But it can not be for their joint benefit, because the articles are of such a nature as to enure to the separate use of each. The effect of the decree will be to make each liable for the whole. The articles intended for the elder sister, could not be necessary for the younger, who was under age. As it regards her, therefore, the contract was voidable under the plea. Indeed it is laid down that if a contract is made by an infant and an adult, they cannot both be sued thereon, but the action should be brought against the adult only, as being the sole contracting party in point of law. [1st Com. on Con. 152,166. 3 Espinasse Rep. 76. 4 Taunton 468. 5 Espinasse 47. 5 Johnson Rep. 160. 1 Wills. 90.1 Saund. 207.)

There is another difficulty in this case which in all probability, it will not be easy to surmount. The defendants were living with their mother at the time this contract was entered into. And it appears to be a pretty well settled principle, that an infant who lives with, and, is properly maintained by her parents, cannot bind herself to a stranger for necessaries. (1 Com. on Con. 144, 156, 7. 2 Blacks. Rep. 1325. 1 Espin. Rep. 211.) Whether the mother in this instance was able and did maintain her daughters in a manner suitable to their condition, did not appear; but it ought to be presumed until the contrary be proved, for although the mother is not considered, as the nátural guar» dian of her children to the.same extent as the father, yet she has an interest in their welfare which renders her the fittest judge of those things, and particularly in the articles of clothing, which are necessary for their convenience and comfort. It would have a most unfortunate tendency to permit daughters during their minority, to indulge those extravagant notions, which top many at that age entertain, of what is necessary for them, unaided by'.the salutary advice and control of their mothers. ' The plaintiff might have inquired into their circumstances and consulted the mother before he suffered the debt to be contracted. Evidence may, perhaps, be offered on another trial to make the case an exception to the general rule; but a new trial must now be granted.

Bailey, Ford and BeSauisure, for the motion,

Burikin, contra.  