be ruined, for though not bound by their contracts, they would be made liable as for tort; and it appears in Keble's report that an infant had already been held not liable for representing a false jewel [76 not belonging to him as a diamond and his own. The modern case usually cited for this rule is Jennings v. Rundall (s), where it was sought to recover damages from an infant for overriding a hired

Infant liable for wrong apart from contract, though touching the subjectmatter of a contract. But if an infant's wrongful act, though concerned with the subject-matter of a contract, and such that but for the contract there would have been no opportunity of committing it, is nevertheless independent of the contract in the sense of not being an act of the kind contemplated by it, then the infant is liable.20 The distinction is established and well marked by a modern case where an infant had hired a horse for riding, but not for jumping, the plaintiff refusing to let it for that purpose; the defendant allowed his companion to use the horse for jumping, whereby it was injured and ultimately died. It was held that using the horse in this manner, being a manner positively forbidden by the contract, was a mere trespass, for which the defendant was liable (t).30

(s) 8 T. R. 335, 4 R. R. 680. It is also recognized in Price v. Hewett (1852) 8 Ex. 146 (not a decision on the point).

C. B. N. S. 45, 32 L. J. C. P. 189. A bailment at will would have been determined, as where a bailee commits theft at common law by "breaking bulk."

(t) Burnard v. Haggis (1863) 14 Although there are numerous dicta to the contrary, it is believed that an infant may be bound by estoppel by conduct in a case of fraud apart from contract; as if an infant owning property, and of sufficient understanding to comprehend the import of his act should, concealing his own title, induce a purchaser to buy the property from another. Whittington v. Wright, 9 Ga. 23; Gilbert v. Carlan, Ct. App. Ky., stated in Wright v. Arnold, 14 B. Mon. at p. 519; Ferguson v. Bobo, 54 Miss. 121; Hall v. Timmons, 2 Rich. Eq. 120; Barham v. Turbeville, 1 Swan, 437. But cp. Lackman v. Wood, 25 Cal. 147; Upshaw v. Gibson, 53 Miss. 341; Norris v. Wait, 2 Rich. L. 148. Consult Bigelow on Estoppel, p. 515.

False representations as to his age by an infant purchaser were held ground for rescission by the seller. Neff v. Landis, 110 Pa. 204. Cp. O'Rourke v. John Hancock Ins. Co., 23 R. I. 457, where it was held that a false warranty by an infant did not give the insurance company to which it was made a defense on the policy. This decision is criticised in 15 Harv. L. Rev. 739.

28 While the infant would not be liable for mere unskillfulness or negligence, he would be liable for positive willful acts causing injury to the animal. Eaton v. Hill, 50 N. H. 235; Campbell v. Stakes, 2 Wend. 137.

29 Vasse v. Smith, 6 Cr. 226; Oliver v. McClellan, 21 Ala. 675; Lewis v. Littlefield, 15 Me. 233, 17 Me. 40; Baxter v. Bush, 29 Vt. 465.

An infant has been held chargeable by action for a tort in obtaining goods fraudulently, with the intention of not paying for them. Wallace v. Morss, 5 Hill, 391; Mathews v. Cowan, 59 IIl. 341; dist. Studwell v. Shapter, 54 N. Y. 249. And see Walker r. Davis, 1 Gray, 506.

30 So an infant who hires a horse to go to a place agreed upon, but drives it to another and further place to its injury, is liable in tort. Homer v. Thwing,

Quære, whether liable on contract implied in law. It is doubtful whether an infant can be made liable quasi ex contractu (as for money received), when the real cause of action is a wrong independent of contract; but since the Judicature Acts have abolished the old forms of action, the question seems of little importance (u).

5. Liability in equity on representation of full age.

In equity liable, if he represent himself as of full age. When an infant has induced persons to deal with him by falsely representing him77] self as of full age, he incurs an *obligation in equity, which however in the case of a contract is not an obligation to perform the contract, and must be carefully distinguished from it (x). Indeed it is not a contractual obligation at all.

Limitation. It is limited to the extent we have stated above (p. *55), and the principle on which it is founded is often expressed in the form: "An infant shall not take advantage of his own fraud." A review of the principal cases will clearly show the correct doctrine. In Clarke v. Cobley (y) the defendant being a minor had given his bond to the plaintiff for the amount of two promissory notes made by the defendant's wife before the marriage, which notes the plaintiff delivered up. The plaintiff, on discovering the truth, and after the defendant came of age, filed his bill praying that the defendant might either execute a new bond, pay the money, or deliver back the notes. The Court ordered the defendant to give back the notes, and that he should not plead to any action brought on them the Statute of Limita

(u) The liability is affirmed by Leake (p. 470), [acc. Shaw v. Coffin, 58 Me. 254; Elwell v. Martin, 32 Vt. 217; Cooley on Torts, 112.] and disputed by Mr. Dicey (on Parties, 284), who is supported by a dictum of Willes J. assuming that infancy would be a good plea to an action for money received, though substantially founded on a wrong. Alton v. Midland Ry. Co. (1865) 19 C. B. N. S. at p. 241, 34 L. J. C. P. at p. 297. [See Re Seager, 60 L. T. R. 665.]

(a) Acc. Bartlett v. Wells (1862) 1 B. & S. 836, 31 L. J. Q. B. 57.

Declaration for goods sold, &c. Plea, infancy. Equitable replication, that the contract was induced by defendant's fraudulent representation that he was of age. The replication was held bad, as not meeting the defence, but only showing a distinct equitable right collateral to the cause of action sued upon.

(y) (1789) 2 Cox, 173, 2 R. R. 25. It must be taken, though it is not clear by the report, that the defendant falsely represented himself as of full age.

3 Pick. 492; Churchill v. White, 58 Neb. 22; Freeman v. Boland, 14 R. I. 39; Towne v. Wiley, 33 Vt. 355; Ray v. Tubbs, 50 Vt. 688. Contra, Wilt v. Welsh, 6 Watts, 9; Penrose v. Curren, 3 Rawle, 351. And see Schenks v. Strong, 1 South. 87.

tion or any other plea which he could not have pleaded when the bond was given; but refused to decree payment of the money, holding that it could do no more than take care that the parties were restored to the same situation in which they were at the date of the bond. In Lemprière v. Lange, a quite recent case, it was held that an infant who had obtained the lease of a furnished house by representing himself of full age could not be made liable for use and occupation, although the lease could be set aside and the infant ordered to pay the costs of the action (2). Cory *v. Gertcken (a) shows that [78 when an infant by falsely representing himself to be of full age has induced trustees to pay over a fund to him, neither he nor his representatives can afterwards charge the trustees with a breach of trust and make them pay again.31 Overton v. Banister (b) confirms this: it was there held, however, that the release of an infant cestui que trust in such a case is binding on him only to the extent of the sum actually received by him. The later case of Wright v. Snowe (c) seems not to agree with this, though Overton v. Banister was cited, and apparently no dissent expressed. There a legatee had given a release to the executrix, representing himself to her solicitor as of full age; afterwards he sued for an account, alleging that he was an infant at the date of the release. The infancy was not sufficiently proved, and the Court would not direct an inquiry, considering that in any event the release could not be disturbed. This appears to go the length of holding the doctrine of estoppel applicable to the class of representations in question, and if that be the effect of the decision its correctness may perhaps be doubted.

There must be a positive representation. In Stikeman v. Dawson (d) the subject of infant's liability for wrongs in general is discussed in an interesting judgment by Knight Bruce V.-C. and the important point is decided that in order to establish this equitable liability it must be shown that the infant actually represented himself to be of full age; it is not enough that the other party did not know of his

(z) (1879) 12 Ch. D. 675. Followed on the question of costs, Woolf v. Woolf [1899] 1 Ch. 343, 68 L. J. Ch. 82.

(a) (1816) 2 Madd. 40, 17 R. R. 180.

(b) (1844) 3 Ha. 503.

(c) (1848) 2 De G. & Sm. 321. (d) (1847) 1 De G. & Sm. 90, 16 L. J. Ch. 205.

31 Hayes v. Parker, 41 N. J. Eq. 630, acc. Cp. Jones v. Parker, 67 Tex. 76. In Ryan v. Growney, 125 Mo. 474, a plaintiff who had represented himself to be of age when selling property was denied equitable relief. See also Charles v. Hastedt, 51 N. J. Eq. 171.

minority. And as there must be an actual false representation, so it has been more lately held that no claim for restitution can be sustained unless the representation actually misled the person to whom it was made. No relief can be given if the party was not in fact deceived, but knew the truth at the time; and it makes no difference 79] where the business *was actually conducted by a solicitor or agent who did not know (e).

Proof in bankruptcy. A minor cannot be adjudicated a bankrupt in the absence of an express representation to the creditor that he was of full age. The mere fact of trading cannot be taken as a constructive representation (ƒ). But if a minor has held himself out as an adult, and so traded and been made bankrupt, he cannot have the bankruptcy anulled on the ground of his infancy (g); and a loan obtained on the faith of an express representation that he is of full age is a claim provable in bankruptcy (h).32

But subsequent valid contract after full age prevails. A transaction of this kind cannot stand in the way of a subsequent valid contract with another person made by the infant after he has come of age; and the person who first dealt with him on the strength of his representing himself as of age acquires no right to interfere with the performance of the subsequent contract (i). This is another proof that the infant's false representation gives no additional force to the transaction as a contract.

It was also held in the case referred to that, assuming the first agreement to have been only voidable, it was clearly avoided by the act of the party in making another contract inconsistent with it after attaining his full age. But it has been decided in Ireland (as we have seen) that this is not so in the case of a lease granted by an infant; the making of another lease of the same property to another lessee after the lessor has attained full age is not enough to avoid

(e) Nelson v. Stocker (1859) 4 De G. & J. 458, 28 L. J. Ch. 751.

(f) Ex parte Jones (1881) 18 Ch. Div. 109, 50 L. J. Ch. 673, overruling Ex parte Lynch (1876) 2 Ch. D. 227, 45 L. J. Bk. 48.

(g) Ex parte Watson (1809) 16

Ves. 265; Ex parte Bates (1841) 2
Mont. D. & D. 337.

(h) Ex parte Unity Bank (1858) 3 De G. & J. 63, 27 L. J. Bk. 33; see observations of Jessel M.R. thereon, 18 Ch. D. at p. 121.

(i) Inman v. Inman (1873) L. R. 15 Eq. 260.

32 If an infant owes debts which he cannot disaffirm, he is within the scope of the Bankruptcy Law. Re Brice, 93 Fed. Rep. 942. Cp. Farris v. Richardson, 6 Allen, 118. Otherwise not. Re Dunnigan, 95 Fed. Rep. 428; Re Eidemiller, 105 Fed. Rep. 595.

the first lease (k). The fact that an *interest in property and [80 a right of possession has passed by the first lease, though voidable, explains the distinction.

II. MARRIED WOMEN.

Married women can contract only as to separate property. A married woman is capable of binding herself by a contract only "in respect of and to the extent of her separate property" (1). This limited capacity is created by a statute founded on the practice of the Court of Chancery, which for more than a century had protected married women's separate interests in the manner to be presently mentioned. Except as to separate property the old common law rule still exists, though with greatly diminished importance. That rule is that a married woman cannot bind herself by contract at all.

If she attempts to do so "it is altogether void, and no action will lie against her husband or herself for the breach of it" (m).33 And the same consequence follows as in the case of infants, namely, that although a married woman is answerable for wrongs committed by her during the coverture, including frauds, and may be sued for them jointly with her husband, or separately if she survives him, yet she cannot be sued for a fraud where it is directly connected with a contract with her, and is the means of effecting it and parcel of the same transaction, e. g., where the wife has obtained advances from the plaintiff for a third party by means of her guaranty, falsely representing herself as sole (m); but it is doubtful whether this extends to all cases of false representation by which credit is obtained (n). For the same reason that the law will not allow the contract to be indirectly enforced a married *woman is [81 not estopped from pleading coverture by having described herself as sui iuris (o).34

The fact that a married woman is living and trading apart from

Property

(k) Slator v. Brady (1863) 14 Ir. C. L. Rep. 61, supra, p. *57. (1) Married Women's Act, 1882, 45 & 46 Vict. c. 75, s. 1. (m) Per Cur. Fairhurst v. Liverpool Adelphi Loan Association (1854) 9 Ex. 422, 429, 23 L. J. Ex. 164.

(n) Wright v. Leonard (1861) 11 C. B. N. S. 258, 30 L. J. C. P. 365, where the Court was divided.

(0) Cannam v. Farmer (1849) 3 Ex. 698.

33 Bank v. Partee, 99 U. S. 325, 330; Re Comstock, 11 N. B. R. 169, 181; Prentiss v. Paisley, 25 Fla. 927; Frazee v. Frazee, 79 Md. 27; Tracy v. Keith, 11 Allen, 214; Flesh v. Lindsay, 115 Mo. 1, 13; Keen v. Hartman, 48 Pa. 497; Woodward v. Barnes, 46 Vt. 332. See also Earle v. Kingscote, [1900] 1 Ch. 203, 2 Ch. 585.

34 Re Comstock, 11 N. B. R. 169, 181; Kilbourn r. Brown, 56 Conn. 149; Levering v. Shockey, 100 Ind. 558; Coats r. Gordon, 144 Ind. 19: Lowell v. Daniels, 2 Gray, 161; Keen r. Coleman, 39 Pa. 299; Klein v. Caldwell, 91