#### JOHN P. SMITH v. NATHAN YOUNG.

If an infant live with his parent, who provides for his child every thing which in his judgment appears to be proper, the infant cannot bind himself to a stranger, even for such articles as might undeSr other circumstances, be deemed necessaries. But if the infant live apart from his father, labouring, and receiving the profits of his labour to his own use, he is pro tempore acting as his own man, by the assent of his father, and will be liable for necessaries suitable to his condition.

This was an action of assumpsit, to which the defendant plead “infancy,” and the plaintiff replied, that “the articles furnished were necessaries.”

Upon the trial at Stokes, on the last Circuit, before his Honor Judge Settle, it appeared that the defendant lived separate and apart from his father, with one of his brothers, for whom he laboured, and from whom he received compensation for his labour, for his own use. The defendant’s father lived in the same neighbourhood, about a half a mile from his brother’s, where he lived, and was a man in reasonable circumstances. Upon this statement of facts, his Honor charged the jury, that if they should be of the opinion that the articles purchased were suitable to the age, condition, standing and situation in life of the defendant, and that they were necessaries suitable to his degree, the law held him responsible for the payment of them: but that if the articles purchased were not necessaries suitable to the defendant’s condition in life, he was not responsible for the payment of them. The jury, under this charge, returned a verdict for the plaintiff. A new trial was moved for on account of misdirection and error in the charge, which being refused, the defendant appealed.

No counsel appeared for either party in this court.

The goes-ther'neces-saries or mixed question of feet. Whe-*27f¿e¿stIf„1ar" nished to are of the classes for Hable, is™ “att.e^, ther’they actu" ally necessary,andof ^price^is matter of faot'

*26Daniel, Judge,

after stating the case, as above, pro-ceeded : — The question, whether necessaries or not, is a mixed question of law and fact, and as such should be submitted by the judge to the jury, together with his directions upon the law; whether articles furnished to an infant are of the classes for which he is liable, is matter *27of law; whether they were actually necessary, and of reasonable price, is matter of fact for the Beeler v. Young, 1 Bibb, 519. Stanton v. Wilson, 3 Day, 37; Cro. Eliz. 587. What were the articles purchased, does not appear in this case; therefore we are to take it that the articles were in law and fact considered as necessaries. We gather from the case, that the sole objection taken to the charge was, that the judge did not direct the jury to find for the defendant (although the articles were necessaries,) inasmuch as his father was alive, and in reasonable circumstances, and lived but a short distance from the defendant. The law is, if an infant . . . . is living under the roof of his parent, who provides every thing which in his judgment appears to be proper, the infant cannot bind himself to a stranger, even for such articles as might, under other circumstances, be deemed necessaries. Cook v. Deaton, 3 Car. & P. 114; (14 Eng. Com. Law Reps. 232.) Bainbridge v. Pickering, Black. Rep. 1325. Barrinsdale v. Greville, 1 Selw. N. P. 127. But here the defendant did not live under the roof of his parent, but lived apart from him, labouring, and receiving the profits of his labour to his own use. He was pro tempore acting as his own man, by the assent of his father; and the articles received by him, being necessaries, should be paid for by him. Madox v. Miller, 1 Mau. & Sel. 738; 10 Petersdorf’s Abr. 376. We think the judgment must be affirmed.

Per Curiam. Judgment affirmed.