Burnard, Appellant; Haggis, Respondent

[45] buknard, Appellant; haggis, Respondent. May 4th, 1863. [S. C. 32 L. J. C. P. 189 ; 8 L. T. 320; 9 Jur. N. S. 1325 ; 11 W. K. 644. Followed, Galley v. Holt, 35 L. T. 632. Referred to, Earle v. Kingxcote, [1900] 1 Ch. 208 ; [1900] 2 Ch. 585.] An infant,-a Cambridge under-graduate,-hired a mare for a ride along the road, being expressly told that she was not fit for leaping. The mare was put to a fence, and in taking it fell upon a stake and was so injured that she died :-Held, that the infant was guilty of an actionable wrong, and therefore liable irrespective of the question of necessaries.-Whether horse-exercise is per se a necessary for an infant in that position,-guare 1-The nature and extent of the liability of an infant or a married woman cannot be changed by suing ex delicto in respect of a claim arising on a contract: per Byles, J. This was an appeal against a decision of the judge of the county-court of Cambridge ia a plaint in which William Haggis was plaintiff and John Chichester Burnard was defendant. The cause was tried on the 13th of January last before a jury summoned 14 C. ft N. S.) . BUKNARD V. HAOGIS 361 at the instance of the plaintiff', when a verdict was found for the plaintiff for 301., arid judgment was given for that sum and costs. :The following is a copy of the particulars of the plaintiffs claim :-" This action is brought to recover the sura of 301. for damages sustained by the plaintiff by reason of the defendant having on the llth day of March, 1862, caused the death of the plaintiff s horse." The defendant duly pleaded infancy, according to the statute and rules. The plaintiff's attorney having opened the case as a question of contract as well as of tortj the judge asked the defendant's attorney if he objected to the particulars of the claim, as he thought they pointed rather to tort than contract; when the defendant's attorney replied that he did not object to them; and during the trial it was agreed between the plaintiff's and defendant's attorneys that the question should go to the jury whether the contract was a necessary suitable to the defendant's station in life. Upon the trial the following facts appeared in evidence :-The plaintiff is a livery-stable keeper residing in Cambridge. The defendant is an under-graduate of Trinity College, Cambridge, whose father was formerly a, surgeon, but for some years past ceased to practise his profession, and was thereupon appointed to be and [46] is now a magistrate lor the county of Somerset. The defendant was born on the 23rd of May, 1842, at Crewkerne, in the county of Somerset. On the llth of March, 1862, about two o'clock p.m., the defendant, accompanied by a friend named Botiner, who was also an under-graduate of Trinity College, Cambridge, but was not examined as a witness, went into the yard of the plaintiff, to whom both of them were strangers, and the defendant stated to the plaintiffs servant, and afterwards to the plaintiff, that the defendant wanted a horse for a ride. A mare was shewn to him, arid he asked if she could jump. The plaintiff said he had no doubt she would, but he did not let her out for jumping or larking, and that, if he the defendant wanted a horse for jumping, plaintiff could shew him a horse for that purpose. The defendant replied he did not want a horse for jumping, but merely for a ride ; and he said he would have the mare, and he directed it to be sent for him to a house No. 7 G-reen Street, Cambridge. The plaintiff stated that the usual charge for a ride is 7s. 6d., and that he had...