An infant is protected against his contracts, but not against his frauds or other torts. (s) But only for those committed by himself, and not for those of persons representing him, as he cannot have an agent, in the legal sense of the word. (ss) His promissory note given as a compensation for his torts is not binding. (t) If such tort or fraud consists in the breach of his contract, then he is not liable therefor in an action sounding in tort, because this would make him liable for his contract merely by a change in the form of the action, which the law does not permit. (u)1 But where the tort, though connected by circumstances with the contract, is still distinguishable from it, there he is liable. As if he hires a horse for an unnecessary ride he is not liable for the hire, but if in the course of the ride he wilfully abuses and injures the * horse, he is liable for the tort. (v)2 And if he should sell the horse, trover would lie, nor would his infancy be a good defence. Nor need this tort or fraud be subsequent to the contract. Thus, in the case of a bond given by an infant and received by the obligee in reliance upon his false and fraudulent representations of his being of full age, the bond cannot be enforced against him. (w) But as soon as the infant makes and delivers it, he is guilty of a fraud, for which an action may at once be maintained for any loss sustained. (x) As long as the bond

(o) People v. Moores, 4 Demo, 518. And sec Stowers v. Hollis, 83 Ky 544. So where a father entered on land in the name of his minor son, for the purpose of defrauding his creditors, and afterwards sold the land, which his sou by his direction conveyed by his own deed, during his infancy, to the purchaser, it was held that such deed was one which the law would have compelled him to make, and therefore could not he avoided by him on arriving at full age. Elliot v. Horn, 10 Ala. 348. In like manner equal partition of lands binds an infant. Bavington v. Clark, 2 Penn. St. 115; Commonwealth v. Hantz, id. 333. The binding effect of proceedings in partition in Pennsylvania, where a purpart is accepted by the guardian, depends upon statutes. Gilbach's appeal, 8 S. & R, 205.

(p) Holt, C. J., Williams v. Harrison, Carth. 161; Crosse v. Androes, 1 Roll. Abr. 2, D pl. 3.

(q) Cunningham v. Knight, 1 Barb. 399.

(r) Sheldon v. Newton, 3 Ohio St. 494 , Thompson v. Lyon, 20 Mo. 155.

(s) See Stone v. Withipool, Latch, 21 , Bullock v. Bahcock, 3 Wend. 391; Hanks v. Deal, 3 McCord, 257; Green v. Sperry, 16 Vt. 390; Lewis v. Littlefield, 15 Me. 233; Hartfield v. Roper, 21 Wend. 615, 620; Brown v. Maxwell, 6 Hill (N. Y.), 592, 594; Homer v. Thwing, 3 Pick. 492 , School Dist. v. Bragdon,3 Foster (N. H ). 516; Walker v. Davis, 1 Cray. 506. Ibis even liable for his own torts, though he act by his father's command, Humphrey v. Douglass, 10 Vt. 71 , or through the agency of a third person, Sikes v. Johnson, 16 Mass. 389.

(ss) Robbing v. Mount. A Rob. 55S.

(t) Hanks v. Deal, 3 McCord, 257, Shaw v. Coffin, 58 Me 254,256; contra Ray v. Tubbs, 50 N't. 688.

(n) See West v. Moore, 14 Vt. 447 , Brown v. Durham, 1 Root, 273; and Morrill v. Aden, 19 Vt. 505, that infancy is a bar to an action founded on a false and fraudulent warranty. But contra, Word v. Vance, 1 Nott & McC. 197; Peigne v. Sutcliffe, 4 McCord, 387; The People v. Kendall, 25 Wend. 399; Jennings v. Rundall, 8 T. R. 337; Gilson v. Spear, 38 Vt. 311.

(v) Campbell v. Stakes, 2 Wend. 137. And so he will be liable in trover if he drive the horse further, or on a different route from that for which he has engaged him. Homer v. Thwing, 3 Pick. 492. Approved in Green v. Sperry, 16 Vt. 390; Towne v. Wiley, 23 Vt. 353. And see Vasse v. Smith, 6 Cranch, 226. But see Witt v. Welsh, 6 Watts, 9; Penrose v. Curren, 3 Rawle, 351; 1 Am. Lead. Cas. 118, 119 (1st ed.); 10 Am. Jur. 98; 11 id. 69; 20 id. 264.

(w) Conroe v. Birdsall, 1 Johns. Cas. 127; Brown v. McCune, 5 Sandf. 224. Neither will his warrant of attorney to confess judgment bind him, and the court cannot make it good, although there be fraud in the infant. Saunderson v. Marr, 1 H. Bl. 75. See also Burley v. Russell, 10 N. H. 184; Stoolfoos v. Jenkins, 12 S. & R. 399.

(x) Fitts v. Hall, 9 N. H. 441 (overruling Johnson v. Pie, 1 Lev. 169). Com. Dig. Action on the Case for Deceit, A. 10; 2 Kent, Com. 241, n. (c); Reeves' Dom. Rel. 259. - And in Wallace v. Morss, 5

Hill (N. Y.), 391, an infant who had fraudulently obtained goods upon credit, not intending to pay for them, was held liable in an action for the tort. But see contra, Brown v. McCune, 5 Sandf. 224; Price v. Hewett, 18 E. L. & E. 522; s. c. 8 Exch. 146. The case of Fitts v. Hall, supra, is decidedly condemned in 1 Am. Lead. Cas. pp. 117, 118, where the learned editors say: " This decision, which directly overrules Johnson v. Pie, 1 Lev. 169, is clearly unsound; the representation by itself was not actionable, for it was not an injury; and the avoidance of the contract, which alone made it so, was the exercise of a perfect legal right on the part of the infant." In the case referred to, Purler, C. J., says . " But Johnson v. Pie, 1 Lev. 169, was 'case, for that the defendant being an infant, affirmed himself to be of full age, and by means thereof the plaintiff lent him £100, and so he had cheated the plaintiff by this false affirmation.' After verdict for the plaintiff, it was moved in arrest of judgment that the action would not lie for this false affirmation, but the plaintiff ought to have informed himself by others. 'Kelynge and Wyndham held that the action did not lie, because the affirmation, being by an infant, was void, and it is not like to trespass, felony, etc, for there is a fact done. Twysden doubted, for that infants are chargeable for trespasses, Dyer, 105; and so, if he cheat with false dice, etc.' The report in Levinz states that the case runs, * it is not clear that he will not pay it; and this uncertainty should perhaps reduce the damages to a nominal amount. But when he refuses to pay, and avoids the ond, by this refusal he gives no new cause of action, hut now in the action grounded upon the original tort, full damages may be given. It might be held, however, that before any action could be maintained for the fraud in making such a bond, either he must have refused payment, or else the bond should be returned to him; and then the plaintiff would be entitled to recover the full amount of the bond. And if goods were sold to an infant in reliance upon his fraudulent representations that he was of full age, the seller may reclaim them, certainly on his refusal to pay, if not before, on the ground that he had never parted with his property.(y)1 was adjourned; but in a note, referring to 1 Keb. 905, 913, it is stated that judgment was arrested. If this case be sound, the present action cannot he sustained on the first count. From a reference in the margin, it seems that the same case is reported, 1 Sid. 258. Chief Baron Comyns, however, who is himself regarded as high authority, seems to have taken no notice of this case in his Digest, ' Action on the case for Deceit,' but lays down the rule that ' if a man affirms himself of full age when he is an infant, and thereby procures money, to be lent to him upon mortgage,' he is liable for the deceit, for which he cites 1 Sid. 183; Com. Dig. Action, &C. A. 10. We are of opinion that this is the true principle. If infancy is not permitted to protect fraudulent acts, and infants are liable in actions ex delicto, whether founded on positive wrongs, or constructive torts, or frauds (2 Kent. Com. 197), as for slander (Hods-man V. Grissel, Nov, 129), and goods converted (auth. ante), there is no sound reason that occurs to us why an infant should not be chargeable in damages for a fraudulent misrepresentation whereby another has received damage." But it is believed that the true ground of the decision in Fitts v. Hall was mistaken in the Am. Lead. Cases, the learned authors being misled perhaps by the marginal note, in which it is said that " An infant is answerable for a fraudulent representation and deceit, which is not connected with the subject-matter of a contract, but by which the other party is induced to enter into one with him, if he afterwards avoids the contract by reason of his infancy."