1 Badger v. Phinney, 15 Mass. 359; Shannon v. Shannon, 1 Sch. & Lef. 324; Ilsley v. Stubbs, 5 Mass. 284.
2 20 Am. Jur. 260; 2 Kent's Comm. lect. 31, p. 240; Earl of Buckinghamshire v. Drury, 2 Eden, 72: Wilmot, 226, note; M'Coy v. Huffman, 8 Cow. 84; Roof v. Stafford, 7 Cow. 184; Weeks v. Leighton, 5 N. H. 343; Holmes v. Blogg, 8 Taunt. 35, 508; Wilson v. Kearse, Peake, Ad. Cas. 196; Kirton v. Eliott, 2 Bulst. 69; Corpe v. Overton, 10 Bing. 252.
3 Holmes v. Blogg, 8 Taunt. 35, 508; 1 Moore, 466; 2 Moore, 552. See, however, Moses v. Stevens, 2 Pick. 332.
4 Breed v. Judd, 1 Gray, 458; Bailey v. Bamberger, 11 B. Mon. 113; Cummings v. Powell, 8 Texas, 80; Bartholomew v. Finnemore, 17 Barb. 428; ante, § 61 a.
5 Price v. Furman, 27 Vt. 268 (1855), and cases cited.
§ 109. The privileges, with which the law invests the infant, are merely additional to the rights which he enjoys in common with adults. If he have paid money on a consideration which has failed, he may reclaim it, and he may always have a remedy against fraud.4
§ 110. Infancy cannot, however, be pleaded as a defence to actions which are founded in tort, but only to actions which are founded in contract. Thus, an infant is liable in trover for a tortious conversion of goods intrusted to his care.5 So, also, where goods were delivered to an infant who was master of a ship, under a contract that he should carry them to a particular place, and they were wrongfully shipped by him to a different port, he was held liable in trover for the conversion.6 So, also, he is personally answerable for slander, or assault, or trespass; for his privilege is no protection against his direct misdeeds and offences.1 An infant is liable in tort for the negligent use of a horse hired for a ride, whether it be necessary or not.2 But where an action against an infant is founded solely in contract, it cannot be converted into a tort by the plaintiff, so as to charge the infant ex delicto, for, otherwise, the protection which the law affords to him might be frustrated by the mere form of action.3 Thus, where the plaintiff delivered a mare to the defendant, who was an infant, to be moderately ridden by him, and the mare having been injured while in his hands, an action was brought charging him ex delicto; it was held, that the defendant might plead his infancy in bar, inasmuch as the matter was founded purely in contract, and the injury could only be a subject for damages.4 For the same reason he would not be liable in delicto on a false and fraudulent warranty.5 Although the action, however, be brought in assumpsit, if it be really founded in tort, so that an action ex delicto might be brought against the infant, the mere form of the action will not afford a right to him to set up .his infancy as a defence.6 Thus, where an action of assumpsit for money had and received was brought against an infant, to recover money which he had fraudulently embezzled, it was held, that the defendant could not plead his infancy in bar, because the action was, in substance, an action ex delicto, for which an action of trover might have been substituted.7 So an infant is liable for the proceeds of property stolen by him and sold.8 But he is not liable for malicious prosecution of a suit brought in his name by his next friend, without his knowledge, although he afterwards assents to it before he comes of age;1 but he would be, it seems, if he carries on such suit after arriving at full age.2
1 2 Kent's Comm. lect. 31, p. 240; Earl of Buckinghamshire v. Drury, 2 Eden, 72.
2 Riley v. Mallory, 33 Conn. 201 (1866), calling the language of Lord Mansfield, in Holmes v. Blogg, a "senseless dictum." And see Miles v. Lingerman, 24 Ind. 385; Briggs v. McCabe, 27 Ind. 330 (1866). See also Heath v. Stevens, 48 N. H. 251 (1869), denying Holmes v. Blogg, 8 Taunt. 508.
3 Lufkin v. Mayall 25 N. H. 83; Locke v. Smith, 41 N. H. 346. And see Hill v. Anderson, 5 S. & M. 216.
4 Bruce v. Warwick, 6 Taunt, 120; Corpe v. Overton, 10 Bing. 252.
5 Homer v. Thwing, 3 Pick. 492; Bristow v. Eastman, 1 Esp. 172; Mills v. Graham, 1 Bos. & Pul. X. R. 140; Peigne v. Sutcliffe, 4 M'Cord, 387; Green v. Sperry, 16 Vt. 390; Brown v. Maxwell, 6 Hill, 592; School Dist. v. Bragdon, 3 Foster, 511; Towne v. Wiley, 23 Vt. 355; Baxter v. Bush, 29 Vt. 465 (1857).
6 Vasse v. Smith, 6 Cranch, 226. See Towne v. Wiley, 23 Vt. 355.
1 Jennings v. Rundall, 8 T. R. 337; Vasse v. Smith, 6 Cranch, 226; 2 Kent's Comm. lect. 31, p. 240, 241.
2 Burnard v. Haggis, 14 C. B. (n. s.) 45 (1863).
3 And a promissory note to compromise a tort would be no more binding than any other. Hanks v. Deal, 3 M'Cord, 257.
4 West v. Moore, 14 Vt. 447; Morrill v. Aden, 19 ib. 505; Gilson v. Spear, 38 ib. 311 (1865).
5 Jennings v. Rundall, 8 T. R. 337; Prescott v. Norris, 32 N. H. 101; Green v. Greenbank, 2 Marsh. 485.
6 Vasse v. Smith, 6 Cranch, 226; Bristow v. Eastman, 1 Esp. 172; Burnard v. Haggis, 14 C. B. (n. s.) 45 (1863). See Harrison v. Fane, 1 Scott, N. R. 287; 1 M. & G. 550.
7 Bristow v. Eastman, 1 Esp. 172; Peake, 223.
8 Shaw v. Coffin, 58 Me. 254 (1870); Elwell v. Martin, 32 Vt. 217; Howe v. Clancey, 53 Me. 130.
§ 111. If the infant have been guilty of positive fraud, and thereby imposed upon the other party to his injury, he cannot set up his infancy as a defence to an action for the consideration, although the matter be in contract; for by his fraud he has put himself without the pale of his privilege, and is responsible to the same extent, as if he were an adult. Fraud renders a contract void ab initio, and not voidable; and therefore, if the infant by fraudulent representations deceive the other party, and thereby induce him to part with his goods, such an agreement will be utterly void, and the infant will be liable in an action of trover for conversion. He cannot thereby take advantage of his own wrong. Thus, if a party falsely represent himself to be of age, and goods be sold to him upon faith of such a representation, for which he refuses to pay on the score of infancy, the vendor may rescind the contract and retake the goods. But though there has been some conflict on the point, it is now settled that an infant, by representing himself to be of age, or a married woman, by representing herself to be sole, cannot be made liable on contracts thus made, even if an action in tort for the deceit can be maintained.8