If infancy is not permitted to protect fraudulent acts, and infants are liable ex delicto,

there is no sound reason that occurs to us why an infant should not be liable in damages for a fraudulent representation whereby another has received damage. * The representation was not part of

Question 34: (1) State the facts in the above case, the specific question involved and the court's decision.

(2) A sells goods to B, a minor, who is 20 years of age, but looks to be 25. Nothing is said about B's age. Is B guilty of fraud in not disclosing his age?

(Note to Case 34: There are some authorities that hold a contrary view to the above decision. Thus, the minor is not held in the English cases: Johnson v. Pye, 1 Keble, 913. Also, see Slayton v. Barry, 175 Mass. 513. "An unfortunate reversion to the old rule."-Note in 57 L. R. A., p. 678. See the cases collected in that note, beginning page 675.

Effect of representation by minor that he was of age upon his right to disaffirm the contract. By the weight of authority a minor is liable for damages caused by his misrepresentation that he was a minor. It is another question whether his deceit in that respect prevents him from setting up that he was a minor in a suit by him to avoid a contract, or in a defense by him when sued on a contract, the contract being in its nature voidable by him.

In the case of La Rosa v. Nichols, 92 N. J. L. 375, 105 Atl. 201, the court said: "As applied to the facts of the case at bar, the law as I view it is that if a youth under 21 years of age, by falsely representing himself to be an adult, which he appears to be, for the purpose of inducing another to enter into a contract. with him, and thereby through such representation and appearance the other party is led to believe that such infant is an adult and makes a contract with him, the benefit of which he obtains and retains, then in a suit on that contract the minor will not be permitted to set up the privilege of infancy, because by his fraudulent conduct, he has estopped himself from so pleading, and this in a court of law as well as in a court of equity." In a note to this case in 6 American Lawyers Reports 416, the annotator says "the courts are not agreed on this subject."

The reviewer divides the cases according to the following headings:

1. When infant is sued at law on the contract. The conclusion is, the minor is not estopped, there being a Kentucky and a Texas case to the contrary.

When infant suing at law. The conclusion is that the infant is not estopped, there being a Georgia case, and the case above quoted from, to the contrary.

3. When infant is sued in equity. In some cases the minor is held to be estopped to set up his defense (Ga., Minn., Miss., N. J.) while in others not estopped (Conn., Md., N. Y., N. C.).

4. When infant suing in equity. Weight of authority he cannot come into equity for relief when he has been guilty of deceit as to his age whereby he procured the contract, but there is important authority to the contrary.)

Case 35. Towne v. Wiley, 33 Vt. 355.

Facts: The facts are given in the opinion.

Point Involved: Is a minor liable for wilful injury to the property of another, procured by him under his voidable contract with that other?

REDFIELD, J.: "This is an action on the case, in trover, for the conversion of a certain horse. The facts which appeared on the trial were that the defendant, being an infant of twenty years, hired of the plaintiffs, who were livery stable keepers at Bellows Falls, the horse in question, to go to Brattleboro' and back the same day. He went to Brattleboro' and returned by a circuitous route, nearly doubling the distance, which, in a direct course, is twenty-three miles, at about eight o'clock in the evening went to a house in Westminster, and remained until four o'clock the next morning, the night being cold and windy, and the horse exposed, during the whole night, without shelter or covering of any kind. This was on the thirteenth of July, and the horse, when returned to the plaintiffs, the next morning, was sick, ate nothing, and died in five or six days, from the over-driving and exposure. The court charged the jury, that these facts constituted a conversion by the defendant, and that his infancy was no bar to the action, and that the plaintiffs were entitled to recover the value of the horse, at the time of the con

version, which would be when the defendant departed from the use for which he hired the beast.

"The cases upon the subject of the liability of infants, for torts, when viewed with reference to their facts, may not seem altogether consistent; but when the principle, upon which the courts profess to proceed, is examined, they will all be found to be placed upon the same ground; and no case is to be regarded as authority, except for the principle, upon which the courts professed to proceed in deciding it. In all the cases, then, upon this subject, it will be found that the courts profess to hold infants liable for positive substantial torts, not for violations of contract merely, although, by construction, the party claiming redress may be allowed, by the general rules of pleading, to declare in tort, or contract, at his election. Jennings v. Rundall, 8 T. R. 335, was entirely of this character. The form of the action was trespass on the case, for immoderately driving a mare, let to hire by the plaintiff to the defendant, and trover for conversion. The defendant pleaded infancy to the counts for immoderately driving, and the plaintiff demurred, and Lord Kenyon, in giving judgment, speaks of the defendant as a lad. But in every view of the case, the defendant was guilty of a mere omission, a nonfeasance, or breach of the implied contract, to use the beast discreetly and carefully, and he had judgment.

66

66

*

'Applying these general principles to the case before us, it seems to us that the distinction taken in the court below is the true one. So long as the defendant kept within the terms of the bailment, his infancy was a protection to him, whether he neglected to take proper care of the horse, or to drive him moderately. But when he departs from the object of the bailment, it amounts to a conversion of the property, and he is liable as much as if he had taken the horse in the first instance without permission."

Question 35: (1) State the facts in the above case, the specific question presented and the court's decision.

(2) A minor hires a horse to drive from Chicago to Evanston, but drives it from Chicago to Wheaton (another direction) and injures it on the way. Can the owner recover damages?

(3) A, a minor, hires a horse to drive from Chicago to Evanston, and drives it immoderately. Can the owner recover damages?

(4) A, a minor, made a contract with B, an adult, that he would thresh his grain for him. A was negligent in the performance of his contract and the grain was thereby destroyed by fire. Is A liable to B? (Lowery v. Cate [Tenn.] 57 L. R. A. 673.)

C. Other Parties Under Disability.

§ 44. Married women.

§ 45. Insane persons.

§ 46. Drunken persons. § 47. Aliens.

§ 48. Corporations.

§ 44. (Contracts, Sec. 12.) Married women.

Case 36. Snell v. Snell, 123 Ill. 403.

Facts: Ellen J.. Snell, wife of Philip Snell, joined with him in a deed of mortgage to Jane Snell, to waive and release her right of homestead and dower. The mortgage misdescribed the land. Later the mortgagee, Jane Snell, filed a bill to correct and foreclose the mortgage. The present suit is by Ellen J. Snell as widow of Philip Snell, and her two minor children, for assignment of homestead, claiming that no interest therein passed by the deed of mortgage.

Point Involved: Generally, what was the effect of a married woman's contract at common law? by the statutes of Illinois?

merits of the case, it may somewhat aid us to advert hastily, and in a general way, to the legal disabilities of married women, as they existed here and in England before the commencement of the reform legislation which

has resulted in so radical a change in the present law on the subject. Their contracts, by the common law, as it existed in England, and in this State prior to the comparatively recent legislation on the subject, commencing in 1861, were absolutely void at law, and were equally so in equity, so far as imposing any personal obligation is concerned. They might, however, by such contracts, subject to certain limitations, bind their separate estate, but they imposed no personal obligation whatever. The right of a married woman to have a separate estate in personal property was purely a creature of equity, and the power to bind it [the estate, not herself], by a contract fairly entered into in respect to the estate, and on her own account, was regarded as a mere incident of such ownership. As her contract imposed on her no personal obligation, either at law or in equity, it therefore followed, as a logical result and legal sequence, that a bill would not lie to reform a contract or conveyance alleged to have been made by a married woman. As a conveyance of land by deed was a species of contract, it followed that an instrument executed by a married woman, purporting to convey real property, was absolutely void, both at law and in equity, and consequently could not be enforced or reformed. While at common law a married woman could not convey her own real estate, or release her inchoate right of dower or other interest in the lands of her husband, yet she might, through the instrumentality of a fictitious suit, called a fine or fine and recovery, permit another to recover whatever right she had in the land proposed to be conveyed, and thus, by a species of estoppel, bar her rights. At common law this was the only mode by which a married woman could dispose of her own lands, or any interest she might have in those of her husband. This cumbrous and expensive mode of conveying her interests in real property was abolished by an act of the British Parliament (3 and 4 William IV, chap. 74), under the provisions of which the wife was enabled to accomplish the same ends as she has been able to do here from a very