#### TEMPERANCE HYMAN vs. LITTLETON CAIN.

The law will imply a promise on the part of infants, having no legal protectors, to pay for necessaries furnished them.

This was an action of assumpsit, tried before his Honor, Judge Dicic, at the Pall Term, 1855, of Edgecombe Superior Court.

The declaration was for goods, &c., furnished to defendant. Plea “ infancy” and a replication “ that the articles furnished were necessaries.”

The material facts were agreed on by the counsel, and submitted as a special case; they are as follows: “ The defendant who was an orphan about nine years old, without father or mother, and without a guardian, boarded with the plaintiff from March, 1852, until about the time a guardian was appointed, which was in August, 1854, and the only question made below, was whether the infant could be made liable for this boarding, &c. It was agreed that if his Honor should be of opinion with the plaintiff, judgment should be rendered for $144.16, which is admitted to be a reasonable charge; but if the Court should be of a contrary opinion, a non-suit should be entered.

Upon consideration of the case, his Honor was of opinion adverse to the plaintiff who submitted to a non-suit and ap-

li-odman, for plaintiff.

No counsel for defendant.

*112Battue, J.

The case agreed presents the single question, whether the law will imply a promise on the part of an infant to pay a reasonable price for necessaries furnished to him; and of that we think there can be no doubt.

In the case of Richardson v. Strong, 13 Ire. Rep. 106, it was held that a promise by a lunatic to pay for services ren.dered to, and necessaries furnished for, him, during a temporary fit of insanity, would be implied, and that he might be compelled, after his recovery, to pay what they were fairly worth. In the course of the opinion the Court say, there is no absurdity in the case of lunatics, more than in that of infants, in implying a request to one rendering necessary services or supplying necessary articles, and implying, also, a promise to pay for them.”' In this extract, it is seen that thewesponsibility of infants is assumed as settled, and is made am argument in favor of the responsibility of lunatics.

The cases of Hussey v. Rountree, Bus. Rep. 110, and State v. Cook, 12 Ire. Rep. 67, which are referred to- oh> behalf of the defendant, were decided upon the ground that the infants had guardians whose duty it was to furnish them'with necessaries, and who were prohibited, ordinarily, from exceeding their income. Under such circumstances no other person had a right to interpose between the guardians and their wards, by supplying the latter even with necessaries.

The principle in these cases has not destroyed the salutary rule of the common law, that infants, having no legal protectors, had better be held liable to pay for necessary food, clothing, &c., than, for the want of credit, to be left to starve.

The judgment must be reversed, and, according to the case agreed, judgment must be entered in favor of the plaintiif for the sum of $144, 16-100, which is admitted to be a reasonable charge for the defendant’s board.

Pee Cueiam.

Judgment reversed.