imputing malice to him or preclude the idea of his indulging it. The case of alleged defamation affords a suitable illustration. The absurdity of a suit against a child three years old would be sufficiently mauifest, but not more so than the granting of immunity to the malicious utterances of a youth of twenty. And while it would be impossible to name any age which should constitute the dividing line between responsibility and irresponsibility in these and all similar cases, there would be no difficulty in reaching the conclusion that for all malicious injuries the wrong doer should be held responsible if he has arrived at an age

and a maturity of mind which should render *him morally [*105] responsible for the consequences of intentional action. All general statements that an infant is responsible like any other person for his torts, are to be received with the qualification that the tort must not be one involving an element which in his particular case must be wanting. If a child less than seven years of age cannot be held responsible for a larceny because of defect of understanding and incapacity to harbor a felonious intent, it would seem preposterous to hold him responsible for a slander, the moral quality of which he would be much less likely to appreciate, and injury from which must be purely imaginary.

But not only is the fact of infancy important in cases in which malice is an ingredient in the tort, but it is not without its influence in other cases. Torts springing from negligence may be instanced. While an infant is liable for these, the question of actual maturity and capacity is important, not only as it may bear upon the question whether negligence actually existed, but also as it may guide in determining whether the plaintiff in the particular transaction was not himself chargeable with fault."

'Neal v. Gillett, 23 Conn. 437. In this case infants from 13 to 18 years of age were sued in case for negligently frightening a horse in playing a game of ball, causing him to run away. SANFORD, J, says, p. 442: "The youngest of these defendants was thirteen years of age, and in the absence of all proof to the contrary, must be presumed to have been emancipated from the dominion of mere childish instincts; and we think it would be mischievous to hold that

persons of the age of thirteen years are, on account of their youth alone, absolved from the obligation to exercise their rights with ordinary care. It may not be easy to fix upon the exact age when childish instinct and thoughtlessness shall cease to be an excuse for conduct which in an adult would be considered and treated as a want of ordinary care; but it is sufficient for the determination of this point that these defendants had clearly passed that age."

Whoever has transactions with a person of immature and slender capacity, or is so brought into relations with such a person that the negligence of the latter may expose him to injury, may reasonably on his own part be charged with a higher degree of care and caution than could be required of him in the like dealings or under similar circumstances with other persons. But, putting aside all question of contributory want of care, on the part of the person injured, the liability of the infant rests on the same ground with that of other persons. If an injury has [*106] been *suffered by another for the want of ordinary care and prudence on his part, he is responsible.'

What shall be deemed to constitute ordinary care and prudence on his part is a question to be considered hereafter.

The fact that an act committed by an infant was advised or commanded by one occupying a position of influence or authority over him is not important when an action of tort is brought against him, as it might be in some cases, were a criminal prosecution to be instituted. The person who has sustained the injury may always look for redress to the person committing it, and he is under no obligation to inquire whether some other person may not have been instrumental in causing it. That fact would be important only in case he should elect to hold such other person responsible. Therefore it is no defense for the infant, that in what he did he was merely obeying his father's command."

An infant, as the owner or occupant of lands, is under the same responsibility with other persons for any nuisance created or continued thereon to the prejudice or annoyance of his neighbors, and for such negligent use or management of the same, by himself or his servants, as would render any other owner or occupant liable to an adjoining proprietor. Here, also, the intent is immaterial. The wrong consists in the fact that enjoyment of one's own property or rights is diminished or destroyed by an improper use or unreasonable use or misuse of the property of another.

"This is necessary, because otherwise there would be no redress for

injuries committed by such persons, and the anomaly might be witnessed of a child, having abundant wealth, depriving another of his property

without compensation." Shearm, & Redf. on Neg, § 57.

2 Humphrey v. Douglass, 10 Vt. 71; Scott v. Watson, 46 Me. 362. See Tifft o. Tifft, 4 Denio, 175; Wilson . Garrard, 59 Ill. 51.

There are some cases, however, in which an infant cannot be held liable as for tort, though on the same state of facts a person of full age and legal capacity might be. The distinction is this: If the wrong grows out of contract relations, and the real injury consists in the non-performance of a contract into which the party wronged has entered with an infant, the law will not permit the former to enforce the contract indirectly by counting on the infant's neglect to perform it, or omission of duty under it as a tort. The reason is obvious: To permit this to

be done *would deprive the infant of that shield of pro- [*107] tection which, in matters of contract, the law has wisely placed before him. Therefore, if case be brought against an infant for the immoderate use and want of care of a horse which has been bailed to him, infancy is a good defense; the gravamen of the complaint being merely a breach of the implied contract of bailment. So infancy is a defense to an action by a ship owner against his supercargo for a breach of his instructions regarding a sale of the cargo, whereby the same was lost or destroyed.'

So if an infant effects a sale by means of deception and fraud, his infancy protects him. The general rule on this subject has been given in a recent case as follows: "An infant is liable in an action ex delicto for an actual and willful fraud only in cases in which the form of action does not suppose that a contract has existed; but where the gravamen of the fraud consists in a transaction which really originated in contract, the plea of infancy is a good defense. For simple deceit on a contract of sale or exchange there is no cause of action, unless some damage or injury results from it; and proof of damage could not be made without referring to and proving the contract. An action on the case for deceit on a sale is an affirmance by the plaintiff of the contract of sale; and the liability of the defendant in such an action could not be established without taking notice of and proving the contract." Lord Chief Justice GIBBS states the

'Jennings . Rundall, 8 T. R. 336. See Manby v. Scott, 1 Sid. 129; Eaton . Hill, 50 N. H. 235; Root v. Stevenson, 24 Ind. 115.

Vasse v. Smith, 6 Cranch, 126; S. C. 1 Am. Lead. Cas. 237; S. C. Ew

ell's Lead. Cas. 195. See Studwell o. Shapter, 54 N. Y. 249.

Gilson v. Spear, 38 Vt. 311, per KELLOGG, J. S. C. Ewell's Lead. Cas. 201. See Graves v. Neville, 1 Keb. 778. In Word v. Vance, 1 Nott

same rule more concisely: "Where the substantial ground of action rests on promises, the plaintiff cannot, by changing the form of action, render a person liable who would not have been liable on his promise." 1

And the same rule applies if, in the purchase of property, he is guilty of fraud or deception, by means whereof the owner is induced to make a sale.'

[*108]

*There are cases in which it has been decided that if property is bailed to an infant for a definite purpose, and he does in respect to it some specific wrongful act not warranted by the bailment, and which would have rendered any other person responsible to the bailor in an action as for a conversion, the infant is also liable to a like action. Thus, it has been held that an infant who hires a horse to go to a place agreed upon, but drives him to another, in a different direction, is liable in trover for an unlawful conversion of the horse. Such an action, it is said, is not founded on the contract, and it is not necessary to show the contract in a suit for the conversion.'

It has also been held, that if an infant hires a horse, and is guilty of such violence and cruelty as to cause its death, an action of trespass may be maintained against him, though, had an action been brought on the contract of bailment, infancy would have been a defense. "If the infant does any willful and positive act, which amounts on his part to an election to disaffirm the contract, the owner is entitled to the immediate possession. If

case as having been probably an action of trover to recover the value of goods obtained by false representations, and the title to which consequently did not pass." Campbell . Perkins, 8 N. Y., 430, 440.

Homer v. Thwing, 3 Pick. 492; S. C. Ewell's Lead. Cas. 188. See, also, Fish . Ferris, 5 Duer, 49; Woodman v. Hubbard, 25 N. H. 73; Towne v. Wiley, 23 Vt. 355; Hall v. Corcoran, 107 Mass. 251; Schenk v. Strong, 4 N. J. 87; Freeman v. Boland, 14 R. I. 39.

4 Hall v. Corcoran, 107 Mass. 251, 256. See, on the general subject, Tucker v. Moreland, 10 Pet. 58.

he willfully and intentionally injures the animal, an action of trespass lies against him for the tort. If he should sell the horse, an action of trespass would lie, and his infancy would not protect him." But "if the plaintiff declares in case, he affirms the contract of hiring, and the plea of infancy is a good defense to such an action; for he cannot affirm the contract, and at the same time, by alleging a tortious breach thereof, deprive the defendant of his plea of infancy."1 "From the moment an infant becomes a trespasser," it is said, in another case following this, "his plea of infancy fails him." But as this doctrine rests upon the fact that the plaintiff, who is allowed a choice of remedies in such cases *has elected to pursue that which is in form ex [*109] delicto, instead of that which sounds in contract, it is

manifest that it cannot be adopted as a general principle without taking from infants all legal protection in a large class of contracts. The doctrine has been sharply criticised in Pennsylvania, whose courts refuse to follow it,' adopting, as applicable to such cases, the language of Sir JAMES MANSFIELD, that "the form of

'WALWORTH, Chancellor, Campbell v. Stakes, 2 Wend. 137, 143-4.

Fish . Ferris, 5 Duer, 50. And, see, Moore v. Eastman, 1 Hun, 578; S. C. 4 N. Y. Sup. Ct. (T. & C.) 37; Lewis . Littlefield, 15 Me. 235; 1 Pars on Cont. 264. An infant hired a mare to ride. He was told she was not fit for leaping. He allowed a friend to take her, who undertook to leap her over the fence, and she fell and was killed. BYLES, J: "The rule is plain, both as to married women and infants, that you cannot, by suing ex delicto, change the nature and extent of their liability. Here, however, the mare was let for the specific purpose of a ride along the road, and for the purpose of being ridden only by the defendant. The defendant not only allows his friend to mount, but allows him to put the mare to a fence, for which he was told she was unfit. ✰✰ The defendant is clearly responsible for the wrong done. ✶✶ To use the mare

as he did was an act of tort, just as distinct from the contract as if the defendant had run a knife into her and killed her." Burnard v. Haggis, 14 C. B. (N. 8.) 45, 53, 52.

Wilt v. Welsh, 6 Watts, 9. The ground of this action was, that the defendant, an infant, had hired a horse to go to one place, and had driven him to another and more distant place. Declaration in trover. GIBSON, Ch. J, reviews the New York and Massachusetts cases, and rejects them as unsound, holding the defendant not liable. Penrose v. Cur. ren, 3 Rawle, 351, was a similar case, except that there the horse was killed by hard usage. Says ROGERS, J.: "The foundation of the action is contract, and disguise it as you may, it is an attempt to convert a suit originally in contract into a constructive tort, so as to charge the infant.' Approved in Livingston v. Cox, 6 Penn. St. 360, 363. Compare Root v. Stevenson's Admr., 24 Ind. 115, 120.

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