
    Grace vs. Hale.
    1. If an infant sell or exchange his personal property, he may at any time dis-a$rm the sale or exchange and sue for and recover the value of his property so sold or exchanged, and this is so, though the minor by such sale or exchange procured necessaries.
    2. Where the son, a minor, lived upon the land of his father and was permitted by the father to cultivate twenty acres of his land for his own benefit: Held, that a horse was not a necessary within the meaning of the law for the purchase of which he would be bound.
    3. Where an infant exchanged horses and did not return the horse procured in the exchange: Held, in an action for the recovery of the value of the horse by him exchanged, the jury had no right to make an equitable adjustment between the minor and the defendant, hut that the minor was entitled to the full value of his property.
    «Nathan Hale, by his next friend, instituted an action of trover in the circuit court of Greene county in June, 1839, against William Grace to recover the value of a. horse.
    The defendant pleaded not guilty. It appeared from the proof submitted to the jury that Hale was an infant and that his father permitted him to possess and cultivate, for his own benefit, about twenty acres of land, jointly with one Rutledge, and that they commenced the crop accordingly; that the plaintiff had a horse which his father had furnished but which was not fit to use in tilling the farm, and that he exchanged horses with the defendant with the view of getting a good work-horse. It also appeared that the defendant had got much the best horse in the exchange, and that the plaintiff requested him to. dissolve the contract and proposed that each should restore to the other his property; this defendant refused; and thereupon this action was instituted.
    Judge Powell charged the jury that if the plaintiff was a minor his contract of exchange was voidable at his election; that the .question whether the horse procured was or was not “a necessary” in the meaning of the law was a question of law for the court to determine; that a horse was not in this case to be regarded as “a necessary,” and that the plaintiff, if entitled to recover at all, was entitled to the whole value of his horse, and that therjury had no right to make any equitable adjustment between the plaintiff’ and defendant. The jury rendered a verdict of fifty-three dollars in favor of the plaintiff; a motion was made to set it aside and re-. fused. The defendant appealed in error to this court.
    
      R. 'J. McKinney, for the plaintiff in error,
    insisted, 1. That considering the circumstances and condition of the defendant, a horse was necessary and proper for him. Chitty on Con. 31: Strange’s Rep. 1101: Comyn on Con. 154-6: Bur. Rep. 1719, 1801-02: 8 Term Rep. 578: Bul. M. P. 154: 3 Jac. Law Die. 424.
    2. It is contended that the question of necessaries is a question of fact foi the decision of the jury. 2 Stark. Ev. 405: 3 Jac. Law Die. 428: Chitty on Con. 34: 8 Term Rep. 578: 1 Stark. Ev, 377, 400.
    3. It is submitted that the 'defendant having delivered the horse in exchange to the plaintiff, cannot now recover him back. 4 Eng. Com. Law Rep. 189: 2 Stark. E. 406.
    
      T. D. Arnold, contended
    that a horse was not “a necessary” within the meaning of the term as used in the adjudicated cases. It might be regarded indispensable to have a horse to carry on agricultural operations, but the law did not regard infants as competent to conduct a farm or other branch of business. If he could bind himself for a horse as being necessary to carry on a farm, then upon the same principle he could bind himself for any other piece of property which might be regarded as necessary in the opinions of men for the successful conducting of the farm. Why not permit infants to embark most extensively in any branch of business, agricultural, commercial or manufacturing, and authorize them to purchase and hold them responsible for any implement of trade, machinery, goods and wares which they might purchase upon the ground that they were “necessaries” within the meaning of the law ? He contended such a course of decision would break down all the wise and safe limitations which the common law for the security of infants had imposed upon their ability to contract. Necessaries consisted of diet, clothing, washing, lodging, schooling and medicine. These, infants had a right to bind themselves for; and any extension of the range of their contracting power, was calculated to jeopardise the rights and interests of those who were unable to protect themselves. What were necessaries it was proper for the court to determine and not the jury.
   Reese, J.

delivered the opinion of the court.

This is an action to recover the value of a horse owned by the plaintiff and given by him, he being a minor, to the defendant in exchange for another. Plaintiff lived with his father and was maintained by him, but being permitted to cultivate, for his own benefit, a portion of his father’s land, it is contended that a horse proper for agricultural operations became, under the circumstances, necessary for the infant, and that his contract for exchange will bind him.

The supposed error in the judgment below, which was in favor of the infant, hence mostly insisted on, is that the court charged the jury that the question whether necessaries or not is one exclusively for the court, with which the jury have nothing to do; and in the sense in which this was said by the court it is certainly correct. It is matter of law that the necessaries for which an infant may bind himself by contract, consists of diet, apparel, washing, lodging, schooling and medicine; but whether within these limits certain articles were in fact necessary and to what extent, becomes, in the language of Lord Kenyon, (I Esp. 212,) a relative fact to be governed by the fortune and circumstances of the infant. 8 T. R. 578. But it seems to us that .this question did not here arise. The question here is not for what necessaries and to what extent an infant may make himself liable, but whether an infant can sell or exchange his property ?

It has been held that if an infant sell goods the sale is void, and if the vendor takes them trespass will lie; but if the'infant deliver them with his own hands that form of action will not lie, but he may avoid the contract of sale. 1 Mod. 137. So it has been held in this country, that an infant having sold personal property may at full age disaffirm the sale and reclaim the property. Williams vs. Morris, 2 Bibb, 107. But it is said that the contract of sale or exchange in this case is rendered valid, because the horse was, under the circumstances, necessary for the infant. But it has been ruled that if an infant become a shop-keeper and buy goods and wares for the use of his shop, the contract does not bind him. 1 Rol. 729: 2 Cro. 494. If he borrow money, though he afterwards employ it for necessaries, he is not liable to the vendor, 1 Rol. 279, or even if it were lent to him for the purpose of procuring necessaries, for the lender ought to provide them. 1 Rol. 386-7. The sale or exchange therefore, by parity of reasoning, would not be rendered valid merely because the thing obtained thereby might be necessary. But we are of opinion, also, that in this case the horse procured was not a necessary within the meaning of the law; we are also of opinion that the court did not err in holding that in such an action the plaintiff was entitled to recover the value of the property, and that the jury ought not to take upon themselves to make an equitable adjustment between the parties. Let the judgment be affirmed.  