mony with the general rule of the liability of an infant for his torts, and is maintained in many of our states.49

The only stumbling block in the way of reasoning out this latter doctrine accurately lies in the fact that a false representation sometimes does enter into the contract, and constitutes the consideration for it. In such cases the infant cannot be held on the contract, and can he by any process of reasoning be held for the fraud? The injured party may rescind the contract, in which case it may be said that there never was a contract, that there was nothing involved but a wrongful act. All the authorities agree, however, that whether or not an action will lie for the deceit in the purchase of goods, replevin will lie where the goods are still in the hands of the infant and may be recovered."

50

The liability of an infant for fraudulent representation that he is of full age, when he is not, is decided in the affirmative by a number of authorities.51

49 Rice v. Boyer, 108 Ind. 472, 58 Am. Rep. 53, 9 N. E. 420; Carpenter v. Carpenter, 45 Ind. 142; Neff v. Landis, 110 Pa. St. 204, 1 Atl. 177; Fitts v. Hall. 9 N. H. 441; Whitcomb v. Joslyn, 51 Vt. 79, 31 Am. Rep. 678; Yeager v. Knight, 60 Miss. 730; Schmitheimer v. Eiseman, 7 Bush (Ky.), 298; Eckstein v. Frank, 1 Daly, 334; Schunemann v. Paradise, 46 How. Pr. 426. But as to New York, see cases in note 42, p. 56, ante; Kilgore v. Jordan, 17 Tex. 341; Hughes v. Gallans, 10 Phila. 618; Hall v. Butterfield, 59 N. H. 354; Harsein v. Cohen (Tex. 1894), 25 S. W. 977; Ferguson v. Bobo, 54 Miss. 121.

50 Eckstein v. Frank, 1 Daly, 334; Burley v. Russell, 10 N. H. 185, 34 Am. Dec. 146; Badger v. Phinney, 15 Mass. 359, 8 Am. Dec. 105; Nolan v. Jones, 53 Iowa, 387, 5 N. W. 572; Kilgore v. Jordan, 17 Tex. 341.

51 Fitts v. Hall, 9 N. H. 441; Yeager v. Knight, 60 Miss. 730; Schmitheimer v. Eiseman, 7 Bush (Ky.), 298; Eckstein v. Frank, 1 Daly, 334; Burley v. Russell, 10 N. H. 185, 34 Am. Dec. 146; Schunemann v. Paradise, 46 How. Pr. 426; Kilgore v. Jordan, 17 Tex. 341; Rice v. Boyer, 108 Ind. 472, 58 Am. Rep. 53, 9 N. E. 420; Hughes v. Gallans, 10 Phila. 618; Carpenter v. Carpenter, 45 Ind. 142; Hall

§ 28. Infant Estopped from Denying Liability. The doctrine of estoppel is applied with equal force to infants as it is to adults. When an infant who has arrived at years of discretion, by direct participation or by silence, has entrapped another, he will be estopped from asserting title to property purchased by another by reason of his fraud.52 The contrary is held by some authority that infants are not bound by estoppels in pais; for example, that any representation of an infant will not estop him to deny his age and disaffirm the contract, such a rule being considered necessary for his protection.53

54

§ 29. Infant's Liability for Money Stolen or Embezzled. An adult is liable on assumpsit upon the implied contract for money stolen, or for the proceeds of stolen property when converted into money. And it seems rather an anomaly to apply this rule equally to a minor as to an adult, as some courts have done, upon the theory that the infant being liable for his torts, it is immaterial to him in what form of action the recompense is sought. This rule is, however, supported to some extent.55

It is justified upon the ground that, while holding the minor liable for positive, substantive torts, and not for violations of contracts merely, by construction, the party claiming redress may be allowed, by

v. Butterfield, 59 N. H. 354, 47 Am. Rep. 209; Harsem v. Cohen (Tex. 1894), 25 S. W. 977; Conrad v. Lane, 26 Minn. 389, 37 Am. Rep. 412, 4 N. W. 695; Merriam v. Cunningham, 11 Cush. 40; Conroe v. Birdsall, 1 Johns. Cas. 127, 1 Am. Dec. 105.

52 Ferguson v. Bobo, 54 Miss. 121; Barham v. Turbeville, 1 Swan (Tenn.), 437, 57 Am. Dec. 782.

53 Sims v. Everhardt, 102 U. S. 300; Tucker v. Moreland, 10 Pet. 58.

54 Howe v. Clancy, 53 Me. 130; Boston etc. R. R. Co. v. Dana,

1 Gray, 83; Shaw v. Coffin, 58 Me. 254, 4 Am. Rep. 290.

55 Shaw v. Coffin, 58 Me. 254, 4 Am. Rep. 290; Walker v. Davis, 1 Gray, 506; Brislow v. Eastman, 1 Esp. 172.

the general rules of pleading, to declare in tort or contract at his election.56

This does violence to the rule that you cannot enforce a contract against an infant. The proper remedy for tort by embezzlement would be by an action on the case.57

§ 30. Infant's Liability for Tort Committed Under Command or Duress.-The same general principles of liability of persons sustaining the relations of master and servant, or principal and agent, apply to the relation existing between parent and his infant child, when the latter is acting under the direct command or under compulsion or duress of the parent. Either or both may be held in such case, the infant's responsibility being based upon the rule that the person sustaining the injury is not bound to inquire whether another has caused the injury whom he may also hold responsible. A minor can act as a servant or agent the same as an adult, and the courts have found no valid reason why he should not be held liable for his torts so committed the same as when committed independently of any relation, and it is the universal rule that an infant is liable for tort though committed by the express command of his parent.58 A parent cannot be equally held, of course, under the general rule above stated, where the tort was committed by his infant child without his knowledge or consent, and not in his employ;59

56 Towne v. Wiley, 23 Vt. 359, 56 Am. Dec. 85; Elwell v. Martin, 32 Vt. 217; Shaw v. Coflin, 58 Me. 254, 4 Am. Rep. 290. See Word v. Vance, 1 Nott & McC. 197, 9 Am. Dec. 683.

57 Peigne v. Sutclife, 4 McCord (S. C.), 387, 17 Am. Dec. 756. 58 Scott v. Watson, 46 Me. 362, 74 Am. Dec. 457; Humphrey v. Douglass, 10 Vt. 71, 33 Am. Dec. 177; O'Leary v. Brooks Elevator Co., 7 N. Dak. 554; Smith v. Kron, 96 N. C. 392, 2 S. E. 533.

59 Wilson v. Garrard, 59 Ill. 51.

nor can he be held for the willful act of his minor child.co

§ 31. Infant's Liability for Torts of Agents.-It has been held that an infant is liable for torts committed by his agent in the necessary prosecution of the business of the agency, under the maxim that he who acts for another does it himself. But, upon principle, the correct view of the responsibility of the infant in such case, as has been very clearly expressed by good authority, is that the relation of principal and agent is contractual, the liability of the principal resting upon express or implied authority. This rule, then, cannot be applied to an infant who cannot be bound by contract in this way, so that he could be held for the torts of his agent. Being incapable of appointing an agent or servant, he cannot delegate powers to another, nor can he guarantee or insure the fidelity, care or skill of another.

62

§ 32. Contracts of Infant in Settlement of Torts.Although an infant is held responsible for his torts, it cannot be held that he has any more capacity to contract in settlement of his torts than in making other contracts. The same rule of exemption from responsibility for contracts generally applies to contracts made by way of settlement for his torts.63

§ 33. Liability of Lunatics-General Principles Governing. The same rule of liability of infants is applied to lunatics for torts of nonfeasance and of misfeasance, for acts of trespass and of negligence; upon

60 Tifft v. Tifft, 4 Denio, 175; Paul v. Hummel, 43 Mo. 119, 97 Am. Dec. 381.

61 Smith v. Kron, 96 N. C. 392, 2 S. E. 533; Sikes v. Johnson, 16 Mass. 389.

62 Robbins v. Mount, 4 Rob. (N. Y.) 553, 33 How. Pr. 24.

63 Hanks v. Deal, 3 McCord, 257; Shaw v. Coffin, 58 Me. 254, 4 Am. Rep. 290. Contra, Ray v. Tubbs, 50 Vt. 688, 28 Am. Rep. 519.

this proposition there is no difference of judicial opinion. But upon the question of the liability of lunatics for those torts which involve intent or malice there is not entire uniformity. The foundation principles of this rule of liability are well stated in a recent learned opinion: "The general rule is that an insane person is just as responsible for his torts as a sane person, and the rule applies to all torts, except, perhaps, those in which malice, and therefore intention, actual or imputed, is a necessary ingredient, like libel, slander, or malicious prosecution. In all other torts intention is not an ingredient, and the actor is responsible, although he acted with a good and even laudable purpose, without any malice. The law looks to the person damaged by another, and seeks to make him whole, without reference to the purpose or the condition, mental or physical, of the person causing the damage. The liability of a lunatic for his torts, in the opinions of judges, has been placed upon several grounds. The rule has been invoked that, where one of two innocent persons must bear a loss, he must bear it whose act caused it. It is said that public policy requires the enforcement of the liability that the relatives of a lunatic may be under inducement to restrain him, and that tortfeasors may not simulate or pretend insanity to defend their wrongful acts, causing damage to others. The lunatic must bear the loss occasioned by his torts. as he bears his other misfortunes, and the burden of such loss may not be put upon others." The liability of lunatics for their torts tends to secure a

64 Williams v. Hays, 143 N. Y. 442, 42 Am. St. Rep. 745, 38 N. E. 449, Earl, J. Same reasons are set forth in McIntyre v. Sholty, 121 Ill. 660, 2 Am. St. Rep. 140, 13 N. E. 239, viz: "There is, to be sure, an appearance of hardship in compelling one to respond for that which he is unable to avoid for want of the control of reason. But the question of liability in these cases is one of public policy." "It is a common principle that a lunatic is liable for any tort which