does so by going to trial. He cannot interpose his minority as a ground for setting aside the verdict.28

§ 25. Same Continued-Contracts of Bailment-Conversion or Unskillful Management.-Many of the authorities cited in the foregoing section as supporting either of the two theories there stated relate to contracts of bailment, and it is the purpose here to give a further particular classification of the cases upon this question.

The question of the liability of an infant who hires a horse for the express purpose of driving to a particular place, but instead either drives to another and different place, and the horse is injured, or though driving to the place agreed upon, willfully mistreats and injures the animal or unskillfully and negligently cares for the same, by reason whereof the horse is injured, has been before the courts many times, and the general doctrines stated in the previous section have been variously applied. There is perhaps almost entire uniformity of opinion upon the latter proposition, that if under the contract of hiring, the infant so unskillfully and carelessly drives and manages the horse, and the animal is thus injured, the action being founded upon contract or so closely connected or identified therewith, there is no liability.2

29

Where an infant hires a horse to drive to a particular place and drives to another, one line of authority, and by far the greater weight, holds that to be transcending the limits of the contract by going to a different place, amounts to a dispossession of the owner, and constitutes conversion for which an action, not being founded on contract, will lie. The conver

28 Watson v. Wrightsman, 26 Ind. App. 437, 59 N. E. 1064.

29 Moore v. Eastman, 1 Hun, 578; Eaton v. Hill, 50 N. H. 235, 9 Am. Rep. 189. See Walley v. Holt (Exch. Div., 1876), 35 L. T., N. S., 631; Young v. Muhling, 63 N. Y. Supp. 181, 48 App. Div. 617. Torts, Vol. I—4

sion is not under the contract, but by abandoning or terminating the bailment.30

Courts of other states have held that if a horse or other thing is hired for a particular journey or purpose, and a different journey is taken and injury is done, it is but a flagrant violation of the contract; any action therefor must be based upon contract, to which infancy is a defense.31

Only two states maintain this doctrine, so far as we are aware, It has been held, however, that driving a horse beyond a place for which the hiring is made is not an exercise of dominion over it in repudiation of, or inconsistent with, the owner's rights.32 In New York, it is held that slight and immaterial departures from the general course of the direction set forth in the contract does not render the infant liable.33

Whenever property is bailed to a minor who uses it

30 Hall v. Corcoran, 107 Mass. 251, 9 Am. Rep. 30; Burnard v. Haggis, 14 Com. B., N. S., 45, 108 Eng. Com. L. 45; Fish v. Ferris, 5 Duer, 49; Homer v. Thwing, 3 Pick. 492; Wheelock v. Wheelwright, 5 Mass. 104; Freeman v. Boland, 14 R. I. 39, 51 Am. Rep. 340. Elwell v. Martin, 32 Vt. 217, states that: "Sometimes it is difficult to tell which preponderates, the contract or the tort, and the rule which has been sometimes applied to a tort, that the conversion must be willful, and not constructive, by breach of the contract, seems just in theory, though very difficult in practical application": Ray v. Tubbs, 50 Vt. 688, 28 Am. Rep. 519; Malaney v. Taft, 60 Vt. 571, 6 Am. St. Rep. 135, 15 Atl. 326. An infant who hires a team and buggy for a specified journey, and drives to another place and in a different direction, takes upon himself all the consequences following therefrom: Churchill v. White (1899), 58 Neb. 22, 76 Am. St. Rep. 64, 78 N. W. 369; Wentworth v. McDuffie, 48 N. H. 402; Campbell v. Stakes, 2 Wend. 137, 19 Am. Dec. 561; Wolley v. Holt (Exch. Div., 1876), 35 L. T., N. S., 631.

31 Penrose v. Curren, 3 Rawle, 351, 24 Am. Dec. 356; Wilt v. Welsh, 6 Watts, 9; Schenk v. Strong, 4 N. J. L. *87 (97); Jennings v. Rudnall (1799), 8 Term Rep. 335.

32 Doolittle v. Shaw, 92 Iowa, 348, 54 Am. St. Rep. 562, 60 N. W. 621; ante, sec. 24.

33 Young v. Muhling, 63 N. Y. Supp. 181, 48 App. Div. 617.

for a different purpose from that for which it was bailed, the bailment is thereby determined, and the infant is liable in trover for the conversion.34 So long, however, as an infant keeps within the terms of the bailment, his infancy is a protection to him for any act of nonfeasance.35

Another aspect of the rule of liability of infants for acts, though in some way connected with a contract of bailment, which finds illustration in some of the authorities, is that where the minor has not essentially departed from the contract of bailments, but while carrying out the purposes thereof, commits some positive, willful or malicious act, which injures the thing bailed, it is such a departure from the contract as not to be connected with it, and the infant is liable.3

36

§ 26. Same Continued-Liability for Conversion not Connected with Bailment.-Under the general doctrine already stated in cases not connected with a contract of bailment, but wherever an infant tortiously converts property of another to his own use, so long as it does not arise from any breach of con

34 Homer v. Thwing, 3 Pick. 492; Rice v. Clark, 8 Vt. 109; Vasse v. Smith, 6 Cranch, 226; Green v. Sperry, 16 Vt. 390, 42 Am. Dec. 519; Towne v. Wiley, 23 Vt. 355, 56 Am. Dec. 85; Hart v. Skinner, 16 Vt. 138, 42 Am. Dec. 500 (on general doctrine); Ray v. Tubbs, 50 Vt. 688, 28 Am. Rep. 519; Peigne v. Sutclife, 4 McCord, 387, 17 Am. Dec. 756; Lewis v. Littlefield, 15 Me. 233.

35 Towne v. Wiley, 23 Vt. 355, 56 Am. Dec. 85.

36 Eaton v. Hill, 50 N. H. 235, 9 Am. Rep. 189. See cases ante, note 30. In Walley v. Holt (Exch. Div.), 35 L. T., N. S., 631, the minor drove a horse at an excessive speed, and unduly flogged, illtreated, and negligently and carelessly used it, thus committing a separate and independent wrong beyond and apart from the contract, following Burnard v. Haggis, 14 Com. B., N. S., 45, 108 Eng. Com. L. 45. The infant may be held for willful over driving: Campbell v. Stakes, 2 Wend. 137, 19 Am. Dec. 567. "It is only for positively tortious acts willfully committed that an infant is liable in an action of trespass or case": Stack v. Cavanaugh, 67 N. H. 149, 30 Atl. 350.

tract, he is liable, and applying the general doctrine that conversion is a departure from contract, and wholly inconsistent therewith, an infant may generally be held for conversion. Infancy of a lessee con'stitutes no defense to trover for crops converted, brought under a provision in a lease reserving to the lessor a lien thereon for the rent, as the liability arises from tort, not from a breach of the contract.37

§ 27. Infant's Liability for Fraud.-The question of the liability of an infant for fraudulent acts or concealment may be solved by the general rule of liability already stated, which has been stated as the sounder and better rule of law. The cases involving this question are where contracts have been sought to be made by the infant. If the fraud precedes or is subsequent to a contract, not a mere breach of it, but a distinct, willful and positive wrong of itself, though but for the subject matter of the contract such fraudulent act would not have been committed, the infant is liable. If the fraud arises from a breach of the contract, though there may have been fraudulent representations or concealments respecting the subject matter of it, the infant cannot be held.38

37 Baxter v. Bush, 29 Vt. 465, 70 Am. Dec. 429.

38 Fitts v. Hall, 9 N. H. 441. In this case it is said: "But the representation . . . . in the present case that the defendant was of full age was not part of the contract, nor did it grow out of the contract, or in any way result from it. It is not any part of its terms, nor was it the consideration upon which the contract was founded. No contract was made about the defendant's age. The sale of the goods was not a consideration for this affirmation or representation. The representation was not a foundation for an action of assumpsit. The matter arises purely ex delicto. The fraud was intended to induce, and did induce, the plaintiff to make a contract for the sale of the lots, but that by no means makes it part and parcel of the contract. It was antecedent to the contract; and if an infant is liable for a positive wrong connected with a

The application of this general formula, which we believe to be sound, to particular cases requires careful discrimination, and it is at once apparent that it is of more difficult application than to either classes of wrongs. And yet, were we dealing with adults, the proposition seems plain that fraud and contract contract, but arising after the contract has been made, he may well be answerable for one committed before the contract was entered into, although it may have led to the contract": Fitts v. Hall (1838), 9 N. H. 441.

A minor making a purchase of property and procuring property by fraud is liable in fraud: Matthews v. Cowan, 59 Ill. 341. "An action to recover damages for such a tort is not an attempt to enforce a contract indirectly, no contract having existed": Ashlock v. Vivell, 29 Ill. App. 388.

The importance of the question justifies copious extracts from the very learned opinion of Chalmers, J., in Ferguson v. Bobo, 54 Miss. 121: "Two principles, equally ancient and equally well settled with respect to the contracts and liabilities of infants, and which, as abstractly stated, seem not antagonistic, have been found in practice to produce two conflicting lines of decision, which it is difficult to reconcile, or, rather, it is difficult to determine satisfactorily where one ends and the other begins: 1. The contracts of infants, except for necessaries with which they have not been supplied by their guardians, impose no liability upon them which is not voidable at their election; 2. Infancy is a shield and not a sword, and cannot be set up to defeat liability for torts, trespasses or frauds; . . . . that neither an honest belief by the opposite party that an infant is of full age, nor a false affirmation to the same effect by the infant himself can make his contract binding, since the incapacity to bind himself springs, not out of the belief of either of the contracting parties upon the subject, but upon the existence of the fact of minority.

"They argue, therefore, that to hold the infant liable for an estoppel by any fraud or falsehood, in any manner connected with the contract, whether before or at the time of making it, is to deprive him of the shield which the law gives him in consideration of his ignorance and inexperience.

"All the cases holding this doctrine may be traced back to Johnson v. Pie, decided in 17 Charles II, and reported in 1 Lev. 169. As before remarked, this judgment has formed the basis of a long line of decisions in England and America, substantially' denying any redress in a court of law against the fraudulent conduct of infants in any manner connected with a contract.