the action cannot alter the nature of the transaction," and that, "though the non-performance of that which is originally contract may be made the subject of an action of tort, the foundation of that action must still be in contract."1 But the weight of authority putting out of view any question regarding the proper form of action would seem to be with the New York cases." The question whether an infant is liable in tort for falsely representing himself to be of full age, whereby he [*110] induces *another to contract with him to his prejudice, is one upon which great differences of judicial opinion have been expressed. In England it is thoroughly established that he is not liable. The English cases have often been approved in this country, and the tendency of authority here is with them. But other cases hold the contrary. 'Weall o. King, 12 East, 452. And, see, Studwell v. Shapter, 54 N. Y. 249. Compare Eaton v. Hill, 50 N H. 235, 240. In this last case it is held that case will lie against an infant for a positive wrongful act to property bailed to him, and that it is not necessary, as was held in Campbell v. Stakes, to bring trespass. See, also, Schenk v. Strong, 4 N. J. 87. 2 See, besides the cases referred to in Maine and New Hampshire, Story on Sales, § 28; 1 Pars, on Cont. 316. 3 Johnson v. Pye, 1 Lev. 169; 1 Sid. 258, and 1 Keb. 905; Price v. Hewett, 8 Exch. 146; Liverpool, etc., Association v. Fairhurst, 9 Exch 422; Bartlett v. Wells, 31 L. J. Q. B. 57; S. C. 1 B. & S. 836; Wright v. Leonard, 11 J. Scott (N. s.), 258; De Roo v. Foster, Ib. 272, Where, by false representations, a minor has obtained a lease of furnished premises the lessor is entitled to have the lease declared void and possession given him, but defendant cannot be held for use and occupation. Lemprière v. Lange, L. R. 12 Ch. D. 675. Brown v. Dunham, 1 Root, 272; Geer v. Hovey, Ib. 179; Wilt v. Welsh, 6 Watts, 9; Curtin v. Patton, 11 S. & R. 309; Stoolfodz v. Jenkins, 12 S. & R. 403; Livingston v. Cox, 6 Penn. St. 360; Kean Coleman, 39 Penn. St. 299; Brown v. McCune, 5 Sandf. (S.C.) 224, Homer v. Thwing, 3 Pick. 492; Merriam v. Cunningham, 11 Cush. 40; Carpenter v. Carpenter, 45 Ind. 142; Burns . Hill, 19 Geo. 22; Kilgore v. Jordan, 17 Texas, 341; Tucker v. Moreland, 10 Pet. 59. 5 See Ward v. Vance, 1 N. & McCord, 197; Peigne v. Sutliffe, 4 McCord, 387; Fitz v. Hall, 9 N. H. 441; Norris v. Vance, 3 Rich. 164; Seabrook v. Gregg, 2 S. C. (N. s.) 79. In Fitz v. Hall, supra, PARKER, Ch. J., undertakes to lay down a general rule as follows: "The principle," he says, "seems to be that, if the tort or fraud of an infant arises from a breach of contract, although there may have been false representations or concealment respecting the subject matter of it, the infant cannot be charged for this breach of his promise or contract by a change in the form of action. But if the tort is subsequent to the contract, and not a mere breach of it, but a distinct, willful and positive *The protection against personal responsibility which [*111] the law accords to an infant does not go so far as to vest in him the title to property which he has obtained by fraud, or on a contract which he disaffirms. If he still retains the property when the contract is disaffirmed, he must restore it on demand, and on his failure to do so, the original owner may obtain wrong in itself, then, although it may be connected with a contract, the infant is liable. The representation in Johnson. Pye, and 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 contract, but arising after a 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." This decision is pronounced by the editors of the American Leading Cases, in their notes to Tucker v. Moreland, Vol. I., to be "clearly unsound," and they say that "the representation, by itself, was not actionable, for it was not an injury, and the avoidance of the contract, which alone made it so, was the exercise of a perfect legal right on the part of the infant. The contract in such a case as Fitz v. Hall forms an essential part of the right of action, and no liability growing out of contract can be asserted against an infant. The test of an action against an infant is, whether a liability can be made out without taking notice of the contract." But Mr. Parsons, who approves the case, says the learned editors mistook the real ground of the decision in Fitz v. Hall, which was that a fraudulent representation, whereby money or goods are obtained by an infant, is an actionable injury. 1 Pars. on Cont. 5th Ed. 318, note. See Walker v. Davis, 1 Gray, 506. The case was approved by REDFIELD, Ch. J., in Towne . Wiley, 23 Vt. 359, but denied to be sound in Gibson v. Spear, 38 Vt. 311, 315, in which it is said: "We think that the fair result of the American as well as of the English cases is that 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 that where the gravamen of the fraud consists in a transaction which really originated in contract, the plea of infancy is a good defense." The principle thus stated would exclude many cases in which it is admitted an infant is liable. With deference it may be suggested whether, where a party has never intended to rely upon the contract of an infant, or to have any contract dealings at all with one, justice to him and "protection" to the infant does not require that the fraud shall be dealt with in like man it on replevin, or recover its value in an action of trover. And where the property was obtained by fraud the infant has been held liable, though the conversion took place before the time when the price was payable by the terms of the fraudulent contract.' As the doctrine respondeat superior rests upon the relation of master and servant, which depends upon contract, actual [*112] or *implied, it is obvious that it can have no application in the case of an infant employer, and he, therefore, is not responsible for torts of negligence by those in his service. Nor can he be made a trespasser by relation through the ratification of a wrongful act which another has assumed to do on his behalf, but without his knowledge. It seems that if an infant tortiously convert the money of another to his own use, or tortiously dispose of the property of another, receiving money therefor, the tort may be waived and assumpsit maintained. The reasons for this are well set forth in a Vermont case. ner as would any other distinct tortious act. In Eckstein v. Frank, 1 Daly, 334, Judge DALY denies the soundness of Johnson v. Pye, and considers it overruled in New York by Wallace v. Morss, 5 Hill, 392. In Indiana in a late case it is held that an infant is liable in tort for the actual loss resulting from a false and fraudulent representation of his age where by reason of it a contract has been made with him. "Thus an equitable conclusion is reached and one in harmony with his liability in tort." Rice v. Boyer, 108 Ind. 472. All the cases agree that, if an infant is sued on his contract, his fraud will not preclude his relying upon his infancy in a defense in that suit. Burley v. Russell, 10 N. H. 184: Merriam . Cunningham, 11 Cush. 40; Brown. McCune, 5 Sandf. (S. C.) 244; Studwell v. Shafter, 54 N. Y. 249. There are statutes in some States rendering infants responsible for their false assertions of majority. See Schouler, Dom. Rel. 570; Ewell's Lead. Cas. 205, 206. 1 Mills v. Graham, 1 New Rep. 140; Badger . Phinney, 15 Mass. 359; Walker v. Davis, 1 Gray, 506; Kilgore . Johnson, 17 Texas, 341; Pars. on Cont. 5th Ed. 319; Reeve Dom. Rel. 244; Schouler, Dom. Rel. 555. 2 Walker o. Davis, 1 Gray, 506; Schouler, Dom. Rel. 555-6. Robbins v. Mount, 4 Robt, 553; S. C. 33 How. Pr. 34. • Burnham v. Seaverns, 101 Mass. 360. See Armitage v. Widoe, 36 Mich. 124. Nor is he liable as innkeeper upon the custom of the realm. Cross v. Andrews, Carth. 161; Cro. Eliz. 622. 5 Bristow . Eastman, 1 Esp. 172; Shaw . Coffin, 58 Me. 254. See Peigne v. Sutcliffe, 4 McCord, 387; Munger v. Hess, 28 Barb. 75. Elwell v. Martin, 32 Vt. 217, ALDIS, J.: "The defendant, a minor, tortiously, and without the knowledge or consent of the plaintiff, took from him one hundred and ninety dollars in money: is he liable therefor in assumpsit for money had and received? It is admitted that if he were an adult *It has been decided in Illinois, that if an infant [*113] makes a purchase for cash, and pretends to make payment he would be so liable. Where property has been tortiously taken and converted into money, the plaintiff may sue in tort, or he may waive the tort and sue in assumpsit. When it is said that he waives the tort, it is not meant that he does any act or makes any averment in his declaration to that effect. He simply brings assumpsit instead of trespass or trover, and thereby foregoes the advantage he would have if he sued tortwise to claim higher or exemplary damages, and to proceed against the person of the defendant. By bringing assumpsit he pursues a remedy milder and more favorable to the defendant. The defendant cannot be worse and may be better off by being sued ex contractu. Such is the law as applicable to adults. "It is also admitted that the defendant is liable for the tort, and that the damages recoverable in an action ex delicto cannot be less than the money tortiously taken, which would be the measure of damages in assumpsit. But it is claimed that although infancy is no bar to the cause of action in tort, although the infant is fully liable for the tort, still if the plaintiff elects to sue in assumpsit, then the infant, on account of the form of action, can plead his infancy in bar of the suit. "The plea of infancy is allowed to protect the infant from imposition, to shield him against the consequences of his inexperience and ignorance. Hence, his express promises do not bind him. Even for necessaries, which he must have, or otherwise he would starve, he is not liable by vir tue of any express promise; for if he promise to pay an unreasonable price for them, he is not bound by such promise but only to pay a reasonable price which is implied. "As infancy does not protect him from the consequences of and liability for his tortious acts, why should it furnish him with defense against them when sued ex contractu instead of ex delicto? The right to elect the form of action belongs to the plaintiff. The infant cannot be injured, but may be benefited by being sued in assumpsit. Why may not an infant be allowed to have a milder remedy brought against him as well as adult tort feasors? "The promise upon which he is made liable is not an express one. The law implies it from the wrongful act. It is not a contract in which he may have been cheated, and against which infancy shields him, but a willful wrong which he has committed against another, and in which the law implies the obligation to make the restitution. Here the necessity is to protect, not the infant, but society. The plea should cease when the reason for it ceases. Although the action is assumpsit, yet the substance is in tort, and when the substance has been made to appear by proof, we see no reason why the form of action which is favorable to the infant may not be maintained. In the substance of the proceedings there is no anomaly and none as to the form which is not fully answered by allowing such suits to stand against adults. "The action, we think, is fully sus tained by authority. Bristow v. Eastman, reported in 1 Esp. 172, and in Peake, 223, is an authority to show that an infant who has embezzled money may be sued for it in assumpsit. "As reported in Espinasse, it is a [*114] by delivery of a *check on a bank where he has no funds, direct decision on the point. In Peake it is said that the plaintiff proved that the defendant acknowledged the fraud and promised to pay after he came of age, so that the point was not determined. In this view it is but the doctrine of Lord Kenyon. We notice, however, that the case is more fully reported in Espinasse, and seems to bear upon its face the marks of greater accuracy and a more thorough knowledge of the case. "The doctrine there held by Lord Kenyon, that an infant is liable in assumpsit for money he has embezzled, has been recognized and adopted by several elementary writers on the subject of infancy; by Judge Reeve, in his Domestic Relations, 246: by Prof. Greenleaf, 2 Greenleaf's Ev. Sec. 368, and by Story on Contracts, p. 64. It is questioned upon what seems to us insufficient ground in an article in the American Jurist, January, 1839. See, also, Bing. on Infancy, p. 111, and 1 Am. Leading Cases, 261. "The defendant has cited several cases to show that to sue in assumpsit the plaintiff must waive the tort, and that then the case must proceed as if the money was received without wrong, and the defendant only liable for a breach of contract. Such is, unquestionably, the theory of the law, and the principle is recognized in the cases cited. Conant . Raymond, 2 Aik., 243; Fisher . Jail Commissioners, 3 Vt. 328; Young v. Marshall & Poland, 21 E. C. L. 437 (8 Bing. 43.) "But this does not settle the question here at issue, whether an infant tortiously taking money can plead infancy in bar when sued in assumpsit, for the validity of a plea as a defense may, and ordinarily should turn, not upon the form of the action, but its substantial merit. Indeed, the language of Ch. J. Tindall, in the case last cited, shows upon what grounds and why a party may waive the tort, and the reasons assigned show that it may as well be waived in the case of an infant as of an adult. He speaks of it as a general rule, that no party is bound to sue in tort, where, by converting the action into an action of contract, he does not prejudice the defendant, and, generally speaking, it is more favorable to the defendant to be sued in contract.' "In the same case, Bosanquet and Alderson, Judges, say that by waiving the tort the plaintiff does not affirm the wrongful acts of the defendant, but merely waives his claim to damages for the wrong, and is content to sue for the proceeds of the wrongful act. "Our attention has been called to the principle generally recognized and established in this State in West v. Moore, 14 Vt. 449, that where the liability really arises by breach of a contract, though accompanied by fraud or tort, the plaintiff shall not be allowed to change the form of action and hold the infant liable ez delicto for the tort. The reason of the decisions stands upon the plain ground of protecting the infant against his liabilities really arising upon contract. In tort the infant might be liable for greater damages than upon contract, and when the substantive cause of action is upon a contract, he ought not to be liable at all. The cases under this head are numerous. Sometimes it is difficult to tell which most preponderates, the contract or the tort, and the rule which has been sometimes applied as a tort, that the conversion must be willful, and not constructive by breach of the contract, seems just in theory, though very difficult in prac |