Sec 53

Trover, not being based on contract, is not barred by a plea of infancy.5 The same rule applies to replevin.6 That an infant cannot be made liable for tort for injuries sustained by a horse hired by him, but driven beyond the limit agreed upon, is asserted in Pennsylvania.1 But the prevalent tendency is to affirm such liability.2 And although an infant cannot be made liable in tort for overriding a hired horse,3 yet if he hurt a horse in doing something for which it was not hired to him (e.g., jumping and not riding, the horse being refused for jumping), he is liable in tort for the injury.4-The question whether an infant is chargeable in an action for fraudulently obtaining goods with intention not to pay for them, is one of much difficulty. On the one hand, it may be argued that when capax doli he is indictable, under such circumstances, for obtaining property by false pretences:5 and if criminally indictable for the fraud, he is civilly responsible in a suit for tort.6 On the other hand, it may be said that as in most cases an infant doing business does not disclose his age, to make him liable in all cases of non-disclosure would do away with the protection of infancy altogether. But this is not so. Criminal prosecutions for false pretences, and civil suits for fraud, could only be sustained in cases where there was nothing in the infant's appearance and surroundings to give notice of his infancy. The cases, therefore, in which such responsibility would attach, are comparatively rare; and the protection given to infancy, as a rule, is not likely to be diminished if a person who, in appearance, is of full age, who is capax doli, and who is permitted by his guardians to do business on his own account, is held responsible for tort. At the same time there is a strong current of authority to the effect, that unless there is some special damage in the way of injury by the infant's false pretence, and unless that false pretence was in the nature of a false token, calculated, under the circumstances, to deceive even the circumspect, he cannot be made liable for a false affirmation of age.1 But for a purely noncontractual tort an infant is liable, supposing he is over fourteen years of age ;2 and between seven and fourteen, he is liable, on proof of malice, the burden of proof being on the plaintiff.3 And even when under seven years, his estate may be liable for negligent injuries sustained through its instrumentality.4

Otherwise as to suits not based on contract.

1 Pollock on Cont. 3d Eng. ed. 74; Johnson v. Pie, 1 Sid. 258 ; 1 Keble, 905; aff. in Adelphia Loan Ass. v. Fairhurst, 9 Ex. 422 ; Stikeman v. Dawson, 1 DeG. & S. 113 ; Brown v. McCune, 5 Sandf. 224; an action, however, on contract. See, contra, Fitts v. Hall, 9 N. H. 441; Ecksteen v. Frank, 1 Daly, 334; Hughes v. Gallans, 10 Phila. 818 ; 31 Leg. Int. 349 ; and criticism in Metcalf on Contracts, 51. In 1 Am. Lead. Cas. (4th ed.) 262, Fitts v. Hall is disapproved on the ground 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 existence of a perfect, legal right on the part of the infant." This was adopted in Benj. on Sales, 3d Am. ed. sec 22, where the question is examined in detail. The question is left open in Merriam v. Cunningham, 11 Cush. 43. See infra, sec 1047.

2 DeRoo v. Foster, 12 C. B. N. S. 272; Prescott v. Norris, 32 N. H. 101; Eaton v. Hill, 50 N. H. 235 ; West v. Moore, 14 Vt. 447 ; People v. Kendall, 25 Wend. 399 ; Heath v. Mahoney, 14 N. Y. Sup. Ct. 100.

3 Burley v. Russell, 10 N. H. 184; Merriam v. Cunningham, 11 Cush. 40; and cases cited infra, sec 74.

4 Leake, 2d ed. 546, citing Bartlett v. Wells, 1 B. & S. 836 ; DeRoo v. Foster, 12 C. B. N. S. 272; Stikeman c. Dawson, 1 D. & Sm. 90 ; Burley v. Russell, 10 N. H. 184; Merriam v. Cunningham, 11 Cush. 40; Stoolfoos v. Jenkins, 12 S. & R. 399. But see Matthews v. Cowin, 59 111. 341 ; Pergin v. Sutcliffe, 4 McCord, 389 ; Kilgrove v. Jordan, 17 Tex. 349. In Stoolfoos v. Jenkins, Tilghman, C. J., said : " If an infant, wishing to engage in .trade or commerce, should purchase goods on credit, representing himself to be of full age, this, though extremely reprehensible, would not make the contract obligatory. So, if, under a similar representation, he should borrow money, and give his bond for it, payment would not be compelled.".

5 Vasse v. Smith, 6 Cranch, 226; Lewis v. Littlefield, 15 Me. 233 ; Wallace v. Moss, 5 Hill (N. Y.), 391 ; Campbell v. Stakes, 2 Wend. 137; Schenck v. Strong, 1 South. 87; Strain v. Wright, 7 Ga. 568 ; though see in Pennsylvania, Wilt v. Welsh, 6 Watts, 9.

6 Badger v. Phinney, 15 Mass. 364 ; Boyden v. Boyden, 9 Met. 521 ; Jefl'ord v. Ringgold, 6 Ala. 544.

1 Wilt v. Welsh, 6 Watts, 9 ; Penrose v. Curran, 3 Rawle, 351.

2 Ray v. Tubbs, 50 Vt. 688; Horner v. Thwing, 3 Pick. 492 ; Campbell v. Stakes, 2 Wend. 137.

3 Jennings v. Rundell, 8 T. R. 335.

4 Burnard v. Haggis, 14 C. B. N. S. 45; Horner v. Thwing, 3 Pick. 492; Eaton v. Hill, 50 N. H. 235 ; Tovvne v.

Wiley, 23 Vt. 355 ; Campbell v. Stakes, 2 Wend. 137.

5 Wh. Cr. L. 8th ed. sec 1149.

6 Fitts v. Hall, 9 N. H. 441; Wallace v.Morse, 5 Hill, 391; Hughes v. Gallans, 10 Phila. 618; Mathews v. Cowan, 59 111. 341; see Shaw v. Coffin, 58 Me. 254.