Wailing v. Toll

9 Johns. 141

• Court: New York Supreme Court
• Decided: May 15, 1812
• Status: Published

Opinion

Per Curiam.

The judgment must be reversed. The plaintiff relying altogether upon the defendant’s confession, that confession must be taken altogether; and although she admitted that the medicine and attendance had been furnished her, yet, at the same time she denied her responsibility for the amount, because she had not employed the plaintiff, and because she was a minor. She might avail herself of her infancy, under the plea of non assumpsit. (1 Salk. 297. 1 Esp. N. P. 301.) For any thing that appears, and, indeed, such is the reasonable intendment, she was living with her father, and the medicine and attendance furnished at his request. An infant who lives with, and is maintained by, her father, cannot bind herself for necessaries. (2 Black. Rep. 1325. 1 Esp. N. P. 303.) The confessions of the defendant, when all taken together, showed that she was not responsible, admitting that the medicine and attendance had been furnished, without something more being proved by the plaintiff. (3 Johns. Rep. 427.)

Judgment reversed.