overruled by Hughes v. Done, 1 Q. B. 294. It applies to the case of a tavern keeper's bill which the defendant has contracted, and in which there are items for spirits supplied to the defendant's guests. Burnyeat v. Hutchinson, 5 B. & A. 241. And a bill of exchange, part of the consideration of which is for spirituous liquors sold in less quantities than twenty shillings, is wholly void. Scott v. Gillmore, 3 Taunt. 226.; Gaitskill v. Greathead, 1 D. & R. 359. But where a bill had been accepted by an officer in payment of small quantities of spirits under twenty shillings, supplied for recruits and others under the defendant's command, Lord Ellenborough was of opinion that the bill was not invalid. Spencer v. Smith, 3 Camp. 9.

Drunkenness being a punishable offence, a publican cannot recover for beer furnished by order of the defendant, if the defendant has previously become intoxicated by drinking in his house. Brandon v. Old, 3 C. & P. 440.

Illegality.-Sale on Sunday.] By 29 C. 2. c. 7. s. 1., no tradesman, artificer, workman, labourer, or other person whatsoever, shall do or exercise any worldly labour, business, or work of their ordinary callings, upon the Lord's-day, or any part thereof, works of necessity and charity alone (excepted. Upon this statute it has been held that a horse-dealer cannot maintain an action upon a contract for the sale and warranty of a horse made by him upon a Sunday. Fennell v. Ridler, 5 B. & C. 408. But where A., not knowing that B. was a horse-dealer, made a verbal bargain with him on a Sunday for the purchase of a horse, and the price, which was above 107., was then specified, and the horse warranted, but it was not delivered till the following Tuesday, when the money was paid, it was held that there was no complete contract till the delivery of the horse, and consequently that the contract was not void under the statute. Bloxsome v. Williams, 3 B. & C'. 232. Though the contract was made by an agent, and the objection is taken by the party at whose request it was entered into on the Sunday, it cannot be enforced. Smith v. Sparrow, 4 Bing. 84. But where goods were bought on a Sunday, and the purchaser afterwards, while the goods were in his possession, made a promise to pay for them, it was held that the seller was entitled to recover on a quantum meruit. Williams v. Paul, 6 Bing. 653. The statute does not make every work or business done on the Lord's-day illegal, but only carrying on trade and ordinary callings on that day. Therefore the hiring of a servant by a farmer on a Sunday is good. R. v. Whitnash, 7 B. & C.596.; see also Begbie v. Levi, 1 C. § J. 180.

Immorality.

One who is a party to an immoral contract cannot enforce it. Thus the price of obscene and libellous prints cannot be recovered. Fores v. Johnes, 4 Esp. 97. So an action for use and occupation will not lie for premises let for the purpose of prostitution. Jennings v. Throgmorton, R. & M. 251. And where an action was brought against the defendant for board and lodging, and it appeared that she was a prostitute, and had boarded and lodged with the plaintiff, who kept a house of ill-fame, and partook of the profits of her prostitution, Lord Kenyon held that such a demand could not be supported. Howard v.

Hodges, Selw. N. P. 67. 4th ed. But a person may recover for goods sold to a prostitute, unless he sells her the clothes to enable her to carry on prostitution. Bowry v. Bennet, 1 Camp. 348. So where the plaintiff was employed to wash clothes for a prostitute, and knew her to be such, and the clothes consisted principally of expensive dresses, and some mens' night-caps, it was held that she was entitled to recover. Lloyd v. Johnson, 1 B. & P. 340.

Insolvency.

.

Plea of the discharge of the defendant under the insolvent debtors' act.] Where a defendant pleads in the usual form that he was discharged under the above act, and the replication denies that such discharge took place, the defendant need not prove the filing of the petition, Andrew v. Pledger, M. & M. 508., nor the affidavit of notice. Pascall v. Brown, 3 Stark. 54. The only evidence which appears to be necessary under the plea of discharge is the copy of the schedule to shew that the de-. fendant is discharged from the debt in question, and the copy of the adjudication to prove the actual discharge. By the general Insolvent debtor's act 1 & 2 Vict. c. 110. s. 105., a copy of the petition, schedule, order, and other orders and proceedings under the act, purporting to be signed by the officer in whose custody the same shall be, or his deputy, certifying the same to be a true copy of such petition, schedule, order, or other proceeding, and purporting to be sealed with the seal of the insolvent court, shall, at all times, be admitted in all courts and places whatever, as sufficient evidence of the same, without any proof whatever given of the same. The provisions of this act differ from those of previous acts, which required proof of the seal of the court. When 7 Geo. 4. c. 57. was in force, it was held that proceedings which had taken place under the 1 Geo. 4. c. 119. might be proved in the manner directed by the 7 Geo. 4. c. 57. s. 76. Doe v. Evans, 1 C. & M. 450. And see Doe v. Hardy, 6 A. & E. 335.; Doe v. Sellers, 6 A. & E. 328. The power given by the above acts of offering a certified copy in evidence does not take away the right of the party to give the original order of adjudication in evidence. Northam v. Latouche, 4 C. & P. 143. An insolvent who inserts in his schedule the name of the holder of a bill of exchange on which he is liable, or gives such other description of it as satisfies the act, is discharged as to all the parties on the bill (though not named in the schedule), and also, as to the original debt for which it was a security. Boydell v. Champneys, 2 M. & W. 433.

Plea of insolvency of the plaintiff.] Where the defendant pleads the insolvency of the plaintiff, and the consequent vesting of the right of action in the assignee, the proof depends on the form of the replication. A verbal acknowledgment by the plaintiff of his discharge under the act is not enough. Scott v. Clare, 3 Camp. 236. The order for the appointment of an assignee, reciting the date of the vesting order, is not evidence of such date; but this must be proved by a certified copy of the vesting order, or of the adjudication of discharge which shews it. Yorke v. Brown, 10 M. & W. 78.

Infancy.

That the defendant was an infant at the time of the contract made, is a good defence, unless the action be for necessaries; and by the new rules this defence must be specially pleaded. Where the action, though in form ex contractu, is in fact founded upon the tort of the defendant, his infancy will be no defence. Thus an action for money had and received will lie against an infant for money which he has embezzled. Bristow v. Eastman, 1 Esp. 172.

What are necessaries.] An infant may bind himself for necessaries, that is, for meat, drink, apparel, medicines, and similar necessaries, and also for his good teaching, or instruction. Co. Litt. 172 a. Com. Dig. Enfant, (B. 5.). The question of necessaries is a relative fact, to be governed by the fortune and circumstances of the infant; and the proof of those circumstances lies on the plaintiff. Per Lord Kenyon C. J., Ford v. Fothergill, 1 Esp. 211. They may be necessaries, without being merely requisite for bare subsistence. Peters v. Fleming, 6 M. & W. 42. It is a question usually left to the jury, subject to the control of the court as to the manner in which the jury have exercised their discretion. Harrison v. Fane, 1 M. & G. 550. 553. It is a mixed question of law and fact. Maddox v. Miller, 1 M. & S. 738. An infant, a captain in the army, has been held liable for a livery ordered by him for his servant; but not for cockades for the soldiers of his company. Hands v. Slaney, 8 T. R. 578.; and see Coates v. Wilson, 5 Esp. 152. So an infant may bind himself to pay a fine due upon his admission to a copyhold estate; Evelyn v. Chichester, 3 Burr. 1717; or for necessaries supplied to his wife; Turner v. Trisby, 1 Stra. 168., B. N. P. 155.; or for money advanced in order to liberate him when taken in execution for necessaries. Clarke v Leslie, 5 Esp. 28. It is not material to inquire whether the infant was in fact supplied by his friends with an allowance sufficient to buy all necessaries with ready money. Burghart v. Hall, 4 M. & W. 727. Nor is it a condition precedent to a recovery that the plaintiff should have made inquiry as to the necessity of the articles sold, before he supplied them. Brayshaw v. Eaton, 5 New Ca. 231.; Dalton v. Gib, Ibid. 198.

What are not necessaries.] Although an infant may enter into a partnership, he will not be liable for the contracts of the partnership made during his infancy; but he will be liable upon such contracts made after his attaining his full age, unless he notifies his disaffirmance of the partnership. Goode v. Harrison, 5 B. & A. 147. In one case it was held that a tailor who supplies an infant with clothes cannot recover for more than are necessary in the then actual state of his wardrobe; and that if the infant already had sufficient clothes from other tailors, evidence of that fact was admissible. Burkhardt v. Angerstein, 1 M. & Rob. 458. But in Brayshaw v. Eaton, 5 New Ca. 231., the plaintiff recovered, though the defendant had been already supplied by his parents. And see Burkhardt v. Hall, cited suprà. See further on this point, Bainbridge v. Pickering, 2 W. Bl. 1325., and Ford v. Fothergill, Peake, 229., in which cases the power of the infant to bind himself by such contracts was considered to depend on the fact of his being properly provided by his parent or

friends. An infant is not liable upon an account stated, even though it appears to be for necessaries; nor can the account stated be used as evidence by way of admission on the part of the defendant to shew that necessaries have been supplied to that amount. Ingledew v. Douglas, 2 Stark. 36. Nor on a bill of exchange, though given for necessaries. Williamson v. Watts, 1 Camp. 552. But he will be liable on a bill accepted after twenty-one, though drawn before. Stevens v. Jackson, 4 Camp. 164. Where goods are delivered to a carrier for an infant, the infant cannot be charged, though the goods do not reach him till after he is of age; for the property vests on the delivery to the carrier. Griffin v. Langfield, 3 Camp. 254. An infant cannot be sued on a warranty of a horse. Howlett v. Haswell, 4 Camp. 118. And is not liable for money lent, though it has been laid out in necessaries. Darby v. Boucher, 1 Salk. 279.; Probart v. Knouth, 2 Esp. 472 (n). An infant, a lieutenant in the navy, is not liable for the price of a chronometer; he being out of employment at the time of its being furnished. Berolles v. Ramsay, Holt, N. P. C. 77. Dinners, confectionary, and fruit, supplied to an undergraduate out of college are not prima facie necessaries. Brooker v. Scott, 11 M. & W. 67. And the articles supplied cannot be considered as suitable necessaries, if they are merely of an ornamental character, as gold rings, &c. Peters v. Fleming, 6 M. & W. 42.

Ratification after full age.] If infancy is pleaded, the plaintiff may reply that the defendant ratified and confirmed the contract after he attained the age of twenty-one, and before action brought; Thornton v. Illingworth, 2 B. & C. 824.; or, that he promised, &c. after full age. Cohen v. Armstrong, 1 M. & S. 724. As to the form of replication, see Williams v. Moor, 11 M. & W. 256. A bare acknowledgment, or part payment, after age, will not be sufficient; there must be an express promise; Thrupp v. Fielder, 2 Esp. 628.; and such promise must be voluntary; Harmer v. Killing, 5 Esp. 102.; and, since 9 G. 4. c. 14. s. 5., it must be by writing, signed by himself. But no particular form is necessary; the paper need have neither date, nor address; nor need the amount be stated. Hartley v. Wharton, 11 A. & E. 934. A contract made by an infant for goods for the purposes of trade, is absolutely void, not voidable only. The law considers it against policy, that he should be allowed to bind himself by such contracts. If he makes a promise after he comes of age, that binds him, on the ground of his taking upon himself a new liability upon a consideration existing before; it does not make it a legal debt from the time of making the bargain; Thornton v. Illingworth, 2 B. & C. 826. ; the defendant therefore will not be bound beyond the extent of his new promise; as when he promises to pay half-a-crown in the pound on the whole debt, he is not liable beyond that sum. Green v. Parker, | Esp. Dig. N. P. 198.; S. C. Peake, Ev. 297.

Where the defendant pleads infancy, and the plaintiff replies a ratification of the promises, &c. after twenty-one, the plaintiff need only in the first instance prove a promise; and it lies upon the defendant to prove his infancy, as it is a fact peculiarly within his own knowledge; Borthwick v. Carruthers, 1 T. R. 648.; accord. Hartley v. Wharton, 11 A. & E. 934. But if the plaintiff, to the plea of infancy, replies that the goods were necessaries, the defendant need not prove his infancy; but

the plaintiff must in the first instance show that the goods were neces

saries.

Proof of infancy, when denied.] Infancy may be proved by calling any person who can speak as to the time of the defendant's birth; or by declarations of deceased members of his family mentioning the time of his birth, with proof of identity. See further as to hearsay evidence of birth, antè, p. 26, 27. As to proof by parochial or other registers, antè, p. 84. 150.

Insanity.

It is not a good defence that the defendant, at the time of the contract entered into, was of unsound mind, unless the plaintiff knew of it and took advantage of that circumstance to impose upon him. Browne t. Joddrell, M. & M. 105.; Levy v. Baker, id. 106. (n). And it seems that the inquiry as to the necessity of goods supplied, and their suitableness to the defendant's condition, may arise on this plea as in that of infancy. See Baxter v. Earl of Portsmouth, 5 B. & C. 170.

Limitations, Statute of.

The Statute of Limitations must be pleaded, and could not, even before the new rules of pleading, have been shown under the general issue. 2 Saund. 63 b. (n). The statutes applicable to actions of assumpsit are 21 Jac. 1. c. 16., 4 & 5 Ann. c. 16., and 9 Geo. 4. c. 14. (Lord Tenterden's Act). When "the statute" is spoken of generally, that of 21 Jac. 1. is intended.

When the statute begins to run.] In assumpsit the statute begins to run from the time of the breach of promise. Therefore in an action against an attorney, in which it was stated as a breach, that the defendant neglected to make a search at the Bank of England to ascertain whether certain stock was standing in the names of certain persons, it was held that, the omission to search having taken place upwards of six years before, the statute was a bar, though the omission was not discovered till within the six years. Short v. M'Carthy, 3 B. & A. 626. ; Battley v. Faulkner, 3 B. & A. 288.; Colvin v. Buckle, 8 M. & W. 680. Upon promises to indemnify, the statute runs from the time of damnification. Huntley v. Sanderson, 1 C. & M. 467.; Reynolds v. Doyle, 1 M. & G. 753. So where a bill of exchange is drawn payable at a future period for the amount of a sum of money lent by the payee to the drawer at the time of drawing the bill, the payee may recover in an action for money lent at any time within six years from the time when the money was to be repaid; i. e. when the bill became due, and not from the time of the loan. Wittersheim v. Countess of Carlisle, 1 H. BI. 631.; Wheatley v. Williams, 1 M. & W. 533. Where a bill is not accepted, and the holder gives notice thereof to the drawer, the statute begins to run; and the drawer does not acquire a fresh right of action on the non-payment when due. Whitehead v. Walker, 9 M. & W. 506. A note, payable on demand, is payable immediately, and the statute begins to run from the date; Christie v. Fonsic, Selw. N. P. 131. ; Norton v. Ellam, 2 M. & W. 461. But where a note is made payable twenty-four months after demand, the cause of action does not accrue, and therefore the statute does not begin to run, until twenty