each are positive, distinct and separate acts, and that wherever fraud enters into a contract the latter is vitiated; there is no contract, and clearly, then, an adult would be liable where the fraud is the inducement for the contract. But as to infants we are confronted with the rule that where the tort com

"The other class of decisions to which we have alluded fully recognizes the nonliability of an infant upon his contracts, but they draw a distinction between holding him upon the contract and estopping him, or making him responsible for his frauds, deceits, and falsehoods, in matters connected with, but not forming a constituent part of it. They say that the action brought, or the defense set up, against him must sound in tort, and not in contract; and if it does sound in tort, it will not be defeated, although the deceit complained of was connected with the contract. . .

"Infants are liable for frauds and torts to the same extent as adults, and where actions ex delicto are brought to make them answerable therefor, they cannot escape the consequences of their acts by reason of the fact that the tort or fraud was connected with a contract, unless it constituted the consideration of it.

"Turning from courts of law to those of equity, we find the law of estoppel, as applicable to the contracts of infants, on a much more satisfactory and clearly defined footing. From the earliest times it has been held that infants will be estopped by a court of chancery from asserting title to property, where, either by their silence or their active interference, they have entrapped third persons into purchasing it from others, or into advancing money upon it.

"It may be stated as a proposition fully borne out by the authorities that whenever an infant who has arrived at years of discretion, by direct participation, or by silence when he was called upon to speak, has entrapped a party, ignorant of his title or of his minority, into purchasing his property from another, he will be estopped in a court of chancery from setting up such title."

This was a case in which a minor daughter had deeded her property to her father to be used by him in obtaining money; the daughter was nineteen years old-a minor. Her father gave a mortgage upon the property. The daughter seeks to disaffirm her deed and recover her property. The court held her estopped from asserting her title, as she participated in the fraud. The cases holding infants liable for frauds and torts connected with contracts are fully discussed: Ferguson v. Bobo, 54 Miss. 121.

A minor who is a party to a fraud stands on no better footing than one of full age: Christian v. Welch, 7 La. Ann. 533. A fraudulent

plained of is an essential part of a contract, it is inequitable to hold the infant for the tort when he cannot be held for the contract. And the rule was very early adopted in England that to hold an infant liable for fraud in any manner connected with contract, whether before or after its execution, would deprive him of the shield which the law gives him. This rule has been recognized in many cases in England,30 and in this country.40

English courts declare that a false representation as to age which induces a contract will not render an infant liable to an action on the case.41

The courts adopting the English doctrine come to the conclusion from all the cases that an infant is liable for willful and actual fraud only in cases in which the form of action does not suppose that a contract existed; but where the gravamen of the fraud consists in a transaction which really originated in contract, the plea of infancy is good. That for simple deceit on a contract of sale or exchange there can be no action, as it cannot be established without rerepresentation in relation to age to induce another to enter into a contract, does not give validity to the contract, and cannot be made the basis of any other action than one in case for the deceit: New York Building etc. Co. v. Fisher, 23 App. Div. 363, 48 N. Y. Supp. 152. See Johnson v. Clark, 51 N. Y. Supp. 232, 23 Misc. Rep. 236; Studwell v. Shapter, 54 N. Y. 249.

39 Johnson v. Pie, 1 Lev. 169; S. C., 1 Sid. 258; Grove v. Nevill, 1 Keb. 778; Price v. Hewett, 8 Ex. 146, 18 Eng. L. & Eq. 522 ("where the tort is incidental to the contract, as the contract is altogether void, the fraud goes for nothing"); Liverpool Adelphi L. Assn. v. Fairhurst, 9 Ex. 422, 26 Eng. L. & Eq. 393; Wright v. Leonard, 103 Eng. Com. L. 258, 11 Com. B., N. S., 258; Bartlett v. Wells, 101 Eng. Com. L. 836; Green v. Greenbank, 2 Marsh. 485, 4 Eng. Com. L. 375.

40 Brown v. Dunham, 1 Root, 272; Wilt v. Welsh, 6 Watts, 9; Brown v. McCune, 5 Sand. 228; West v. Moore, 14 Vt. 447, 39 Am. Dec. 235; Morrill v. Aden, 19 Vt. 505; Gilson v. Spear, 38 Vt. 311, 88 Am. Dec. 659.

41 Johnson v. Pie, 1 Lev. 169; Bartlett v. Wells, 1 Best & S. 836.

ferring to and proving the contract; that such an action is an affirmance of the contract.42

In the states where this doctrine is maintained it is considered that a false representation by an infant that he is of age, whereby he obtains credit in the purchase of goods, enters into and constitutes an element of the contract, which must be proved to au

42 Slayton v. Barry (1900), 175 Mass. 513, 78 Am. St. Rep. 510, 56 N. E. 574; Gilson v. Spear, 38 Vt. 311, 88 Am. Dec. 659; West v. Moore, 14 Vt. 447, 39 Am. Dec. 235; Doran v. Smith, 49 Vt. 353; Prescott v. Norris, 32 N. H. 101; Morrill v. Aden, 19 Vt. 505. See Merriam v. Cunningham, 11 Cush. 40; Brown v. Dunham, 1 Root, 272; Nash v. Jewett, 61 Vt. 501, 15 Am. St. Rep. 931, 18 Atl. 47. Slayton v. Barry, 175 Mass. 513, 78 Am. St. Rep. 510, 56 N. E. 574, decided in 1900, was where an infant, by falsely representing himself to be of full age, induced another to sell him goods. It was held that the seller could not maintain trover against him for the goods. Morton, J., delivering the opinion, expressed the opinion that the weight of authority was against the right to maintain the action, and cited Johnson v. Pie, 1 Lev. 169, 1 Sid. 258, 1 Keb. 905; Jennings v. Rundall, 8 Term Rep. 335; Green v. Greenbank, 2 Marsh. 485, 4 Eng. Com. L. 375; Price v. Hewett, 8 Ex. 146, 18 Eng. L. & Eq. 522; Wright v. Leonard, 11 Com. B., N. S., 258, 103 Eng. Com. L. 258; De Roo v. Foster, 12 Com. B., N. S., 272; Gilson v. Spear, 38 Vt. 311, 88 Am. Dec. 659; Nash v. Jewett, 61 Vt. 501, 15 Am. St. Rep. 931, 18 Atl. 47; Ferguson v. Bobo, 54 Miss. 121; Brown v. Dunham, 1 Root, 272; Geer v. Hovey, 1 Root, 179; Witt v. Welsh, 6 Watts, 9; Burns v. Hill, 19 Ga. 22; Kilgore v. Jordan, 17 Tex. 341. Contra, Fitts v. Hall, 9 N. H. 441; Eaton v. Hall, 50 N. H. 235, 9 Am. Rep. 189; Hall v. Butterfield, 59 N. H. 354, 47 Am. Rep. 209; Rice v. Boyer, 108 Ind. 472, 58 Am. Rep. 53, 9 N. E. 420; Wallace v. Morss, 5 Hill, 391.

"In the present case it seems to us that the fraud on which the plaintiff relies was part and parcel of the contract, and directly connected with it. The plaintiff cannot maintain his action without showing that there was a contract, which he was induced to enter into by the defendant's fraudulent representations in regard to his capacity to contract, and that pursuant to that contract there was a sale and delivery of the goods in question. Whether, as an original proposition, it would be better if the rule was as laid down in Fitts v. Hall, supra, and Hall v. Butterfield, supra, in New Hampshire, and in Rice v. Boyer, supra, in Indiana, we need not now consider": Slayton v. Barry (decided March 3, 1900), 175 Mass. 513, 78 Am. St. Rep. 510, 56 N. E. 574.

thorize recovery, and therefore infancy is a good defense.43

The rule has been applied to cases of deceit in the sale of a horse for false warranty, to false and fraudulent representations as to ownership of property sold or pledged,45 and as to financial responsibility.4

46

The courts arriving at the foregoing conclusions as to the liability of infants for fraud where it has induced or entered into contracts cannot be held to disagree with the general doctrine heretofore stated1 as properly deducible from the bulk of authorities, to the effect that even though there may have been a contract involved, as an incident, or but for the existence of which the tort would not have been committed, yet a tort may arise therefrom which constitutes a disaffirmance of the contract, or is willful, or precedes or follows the same, the infant being liable. But it is considered by the authorities last discussed that in all such cases the fraud becomes a

43 Nash v. Jewett, 61 Vt. 501, 15 Am. St. Rep. 931, 18 Atl. 47; Doran v. Smith, 49 Vt. 353; Slayton v. Barry, 175 Mass. 513, 78 Am. St. Rep. 510, 56 N. E. 574, where the court expresses opinion that the weight of authority is against maintaining such an action. See cases there cited. Rule adopted in New York in Studwell v. Shapter, 54 N. Y. 249; New York Building etc. Co. v. Fisher, 23 App. Div. 363, 48 N. Y. Supp. 152; Johnson v. Clark, 23 Misc. Rep. 346, 51 N. Y. Supp. 238. Compare Wallace v. Morss, 5 Hill, 391, explained in Campbell v. Perkins, 8 N. Y. 430; Nolan v. Jones, 53 Iowa, 387, 5 N. W. 572. The old English rule is to the effect that an infant cannot be held in an action in case for deceit for making a false representation as to age: Johnson v. Pie, 1 Lev. 169, 1 Keb. 905, 1 Sid. 258.

44 Green v. Greenbank, 2 Marsh. 485, 4 Eng. Com. L. 375; West v. Moore, 14 Vt. 447, 39 Am. Dec. 235; Gilson v. Spear, 38 Vt. 311, 88 Am. Dec. 659; Prescott v. Norris, 32 N. H. 101; Morrill v. Aden, 19 Vt. 505.

45 Doran v. Smith, 49 Vt. 353.

46 Studwell v. Shapter, 54 N. Y. 249. See note, 49, post, cases. 47 Ante, sec. 24.

constituent element of the contract, and cannot be proven without reference thereto.

There is, however, stubborn conflict in authority upon this point, there being a line of very well-considered cases by courts of equal standing which maintain an essentially different doctrine that fraud on the part of an infant which precedes or superinduces a contract, or follows or is subsequent to a contract, will render the infant liable, even though it be so far connected with the contract that but for the latter the tort would not have been committed. The reasoning of the courts adopting this rule appears very much more sound than that underlying the cases supporting the contrary doctrine already stated; and it may be urged that there is greater reason why an infant should be held liable for fraud which induces a contract, than he should be for willful conduct while in possession of property under contract of bailment, because of the unquestioned rule that fraud vitiates anything into which it enters, and therefore fraud in connection with a contract vitiates it; there is no contract, nothing but the fraudulent acts of the infant remain.48 Such representations are not necessarily part of the contract; they add nothing thereto. Holding the infant liable for fraud does no violence to the principle of nonliability for his contracts, and it does not indirectly enforce a contract, as the recovery is not upon the contract, for by suing in tort for deceit the injured party does as he may do-rescinds the contract; nor is he made to pay the contract price of goods which he may have purchased, but is merely held for the actual loss caused by his fraud. This is the reasoning of the courts supporting the doctrine just stated, which is strictly in har

48 Kilgore v. Jordan, 17 Tex. 341; Campbell v. Perkins, 8 N. Y. 430; Ashlock v. Vivell, 29 Ill. App. 388.