Watson v. Hensel

The opinion of the Court was delivered by Rogers, J. It is very true, that an infant cannot ever bind himself for necessaries when he has a parent or guardian who supplies his wants. Guthrie v. Murphy, 4 Watts 80. But when he has authority from his guardian, either express or implied, he may purchase necessaries, or when they are supplied to him by a third person ; under those circumstances, the infant is bound. Rundel v. Keeler, ante 237. From the evidence offered, an implication of consent on the part of the guardian would arise; and if so, there is nothing to prevent the defendant who supplied them with necessaries to charge them. If it should appear that the guardian supplied them, no doubt the defence would fail, but this will be matter of inquiry before the jury. We do not wish to be understood as ruling any thing more than that in this stage of the cause. In Guthrie v. Murphy, the contract was made against the consent of the guardian ; and no rule is better settled than that under such circumstances the infant cannot be bound. A difficulty has been suggestd, that the articles furnished to each of the minors may have been of unequal value. But we need not anticipate this; and if it should be so, justice may be done by a special finding of the amount due to each. The mortgage was taken in the name of the guardian ; and no interest has been paid upon it, nor has any been demanded. This would seem to show some understanding between the defendant and guardian. But the interest should be applied to the support of the children, particularly when coupled with the fact that they lived with her with the knowledge of the guardian. [346] Next as to the right of set off. This is a suit in the name of (he guardian for the use of the children. It is a joint demand by several plaintiffs, and certainly a separate claim by the defendant against each cannot be set off for the want of that mutuality which is absolutely essential. A set off is in the nature of a cross-suit, and it cannot be pretended that a joint suit would lie against the infants by the present defendant. On this ground, therefore, the evidence was rightly rejected. Judgment affirmed.