Infant not liable for wrong where the claim is in ex contractu. with the sanction of the Court make valid marriage settlements of both real and personal property. 4. Of an infant's immunity as to wrongs connected with contract. An infant is generally no less liable than an adult for substance wrongs committed by him, subject only to his being in fact of such age and discretion that he can have a wrongful intention, where such intention is material; but he cannot be sued for a wrong, when the cause of action is in substance ex contractu, or is so directly connected with the contract that the action would be an indirect way of enforcing the contract-which, as in the analogous case of married women (7), the law does not allow. Thus it was long ago held that an infant innkeeper could not be made liable in an action on the case for the loss of his guest's goods (). There is another old case reported in divers books (s) (the clearest of the reports is transcribed with immaterial omissions in a judgment of Knight Bruce, V.-C. (t), where it was decided that an action of deceit will not lie upon an assertion by a minor that he is of full age. It was said that if such actions were allowed all the infants in England would 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 not belonging to him as a diamond and his own. The rule is decidedly laid down in Jennings v. Rundall (u), where it was sought to recover damages from an infant for But liable overriding a hired mare. But if an infant's wrongful act, for wrong though concerned with the subject-matter of a contract, apart from (a) See p. 79, infra. () Rolle Ab. 1. 2, Action sur Case, D. 3. (8) Johnson v. Pie, Sid. 258, 1 Lev. 169, 1 Keb. 913. (t) Stikeman v. Dawson, 1 De G. & Sm. 113; and see other cases collected ib. at p. 110, where "the case mentioned in Keble is that which, as stated in the text, occurs in his report of Johnson v. Pie. (u) 8 T. R. 335. It is also recognized in Price v. Hewett, 8 Ex. 146 (not a decision on the point). and such that but for the contract there would have been contract, though no opportunity of committing it, is nevertheless indepen- touching dent of the contract in the sense of not being an act of the the subject-matkind contemplated by it, then the infant is liable. The ter of a distinction is established and well marked by a modern contract. case in the Common Pleas, 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 and independent tort, for which the defendant was therefore liable (a). whether It is doubtful whether an infant can be made liable Qu. quasi ex contractu (as for money received), when the real liable on cause of action is a wrong independent of contract; but contract implied in since the Judicature Acts have abolished the old forms of law. action, the question seems of little importance (y). In equity liable and bound by his acts, 5. Liability in equity on representation of full age. When an infant has induced persons to deal with him by falsely representing himself 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 (≈). Indeed it is not a contractual obligation at all. It is limited to the extent of any we have stated above (p. 52), and the principle on which it advantage (x) Burnard v. Haggis, 14 C. B. N. S. 45, 32 L. J. C. P. 189. (y) The liability is affirmed by Mr. Leake (p. 546), and in the State of Vermont (Elwell v. Martin, 22 Vt. 217, ap. 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., 19 C. B. N. S. at p. 241; 34 L. J. himself as of fullage; but only to the extent thereby gained. 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 (a) 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. (It must be taken, though it is not clear by the report, that the defendant falsely represented himself as of full age.) 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 Limitation 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 (b). Cory v. Gertcken (c) shows that 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. Overton v. Banister (d) 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 late case of Wright v. Snowe (e) seems not to agree with this, though Overton v. Banister was cited, and apparently no dissent expressed. There a legatee had (a) 2 Cox, 173. (d) 3 Ha. 503. must be a 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. In Stikeman v. Dawson (f) the subject of There infants' liability for wrongs in general is discussed in an positive interesting judgment by Knight Bruce, V.-C., and the represenimportant 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 other the other party did not know of his 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 where the business was actually conducted by a solicitor or agent who did not know (g). tation, not mere dissimulation: and the mula be in fact party must misled. bank A minor cannot be adjudicated a bankrupt in the Proof in absence of an express representation to the creditor that he ruptcy. was of full age. The mere fact of trading cannot be taken as a constructive representation (h). But if a minor has held himself out as an adult, and so traded and been made bankrupt, he cannot have the bankruptcy annulled on the ground of his infancy (i); and a loan obtained on the faith (f) 1 De G. & Sm. 90. (g) Nelson v. Stocker, 4 De G. & J. 458. (h) Ex parte Jones, C. A., 18 Ch. D. 109, overruling Ex parte Lynch, 2 Ch. D. 227. (i) Ex parte Watson, 16 Ves. 265, Ex parte Bates, 2 Mont. D. & D. 337. But subsequent valid contract after full age prevails. Married women can contract only as to separate Old com mon law of an express representation that he is of full age is a claim provable in bankruptcy (k). 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 (1). 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 the first lease (m). The fact that an interest in property and a right of possession had passed by the first lease, though voidable, seems a sufficient ground for the distinction. II. MARRIED WOMEN. A married woman is capable of binding herself by a contract, only "in respect of and to the extent of her property. separate property" ("). This limited capacity is created by a statute founded on the practice of the Court of Chandisability. cery, 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 (k) Ex parte Unity Bank, 3 De G. & J. 63, see observations of Jessel, M.R. thereon, 18 Ch. D. at p. 121. (1) Inman v. Inman, 15 Eq. 260. (m) Slator v. Brady, 14 Ir. C. L. 61, supra, p. 55. (n) Married Women's Property Act, 1882, 45 & 46 Vict. c. 75, s. 1. |