opinion, the application of the principle laid down in this case affords the only true rule for ascertaining with accuracy and certainty the liability of the master and owner of a general ship, viz., that primâ facie he is a common carrier, but that his responsibility may be either enlarged or qualified by the terms of the bill of lading, if there be one, and that the question whether the defendant is liable or not, is to be ascertained by the terms of this document when it exists. There will therefore be no rule.

After this judgment had been pronounced,

POLLOCK, C. B., said—If indeed the rats had made a hole in the ship through which water came in and damaged the cargo, that might very likely be a case of sea damage. And

ALDERSON, B., added-Our judgment does not touch that question. A rat making a hole in a ship may be the same thing as if a sailor made one.

Rule refused.

Notes on Leading Cases.

CIVIL LIABILITY OF INFANTS FOR TORTS.

Grove v. Nevill, 1 Keble, 778. This action was for deceit in sale of goods, which the defendant represented as his own. Non-age was pleaded, and held a good bar, "this being no actual tort, or any thing ex delicto, but only ex contractu, which is voidable by plea, but it is a tort by construction of law." Windham doubted.

This is the leading case on the liability of infants to be sued for torts. It is referred to in Johnson v. Pie, 1 Keble, 913, where it is said that the defendant made a false representation as to the ownership of the goods. In the case of Johnson v. Pie, it was held that an action on the case for deceit would not lie against an infant for falsely representing himself to be of age, and thereby procuring a loan of money. The case is also reported, 1 Siderfin, 258, and is reported, but without a final decision, 1 Levinz, 169.

The liability of infants in actions of tort may best be considered under four different heads. 1. Actual, positive torts, disconnected with any contract. 2. Cases, where property coming by contract into the possession of an infant, is converted to his use. 3. Cases, where the conversion of such goods is not actual but constructive. 4. Cases, where an infant obtains possession of goods by fraudulent representations.

It is clear that infancy is no defence for actual, positive acts of wrong. An infant is liable for trespass, Johnson v. Pie, ubi sup., for slander, Hudsman v. Grissell, Noy, 129; Weaver v. Ward Hob. 134; for permissive waste, 3 Salk. 196. Infants as well as married women are chargeable in trespass for procuring another to commit assault and battery. Sikes v. Johnson, 15 Mass. 389. A bastardy process lies against an infant, and he is liable on a bastardy bond. McCall v. Parker, 13 Met. 372. An infant was held liable for an injury resulting from his gross negligence in using a bow and arrow. But it is said that "where infants are actors, that might probably be consid

ered an unavoidable accident, which would not be so considered where the actors were adults." 3 Wend. 391.

It is no excuse for the trespass of an infant, that he acted by the command of his father. Humphrey v. Douglass, 10 Verm. 71. Whether an infant is liable for bringing a malicious suit, is doubtful; but where he continued to carry out the case after he came of age, he was held liable. Sterling v. Adams, 3 Day, 411.

2 It was early held in Manby v. Scott, 1 Siderfin, 129, that if one deliver goods to an infant, the infant shall not be charged for them in trover and conversion. The reason given for this is the same given for the decision of Johnson v. Pie, 1 Sid. 258, that by a different doctrine, "all the infants in England would be ruined."

The later decisions establish a different doctrine. In Bristow v. Eastman, 1 Esp. 173, Lord Kenyon held that an action for money had and received would lie against an infant to recover money, embezzled by him, while in the plaintiff's employ. The judge said that the action was in substance ex delicto, though in form ex contractu. The propriety of this decision is questioned, so far as the form of action is concerned, in an able article in vol. 20, Am Jurist, pp. 248-262, written by Judge Metcalf. And there seems to be no good reason for allowing assumpsit to be brought in a case, where an action founded in tort was the natural and appropriate remedy.

In Beal v. Hiscox, cited in the last named case, a different decision was made. Mills v. Graham, 1 New Rep. 140, was an action of detinue. The plaintiff had bailed goods to a minor, who set up his minority as an answer to the contract of bailment, and it was held that detinue or trover would lie; but the question was not raised, whether infancy was a defence to the action.

In Massachusetts, it was held in Badger v. Phinney, 15 Mass. 359, that replevin will lie against an infant or his administrator, when the infant bought goods, and set up his infancy as a defence to an action for the price thereof. This decision was approved in Hubbard v. Cummings, 1 Greenl. 11, 13. In Lewis v. Littlefield, 15 Maine, 233, it was held that money, deposited in the hands of an infant as a stake-holder in an illegal wager, might be recovered in an action of trover, where the defendant had paid the amount to the winner, after notice from the plaintiff not to do so. Emery, J., dissented in a brief but able opinion, reported 17 Me 40.

In Peigne v. Sutcliffe, 4 Nott & McCord, 387, an infant who was the agent of the plaintiff, and mate of his ship, was held liable in trover, for converting to his own use the goods of his principal. Upon the whole, there can be no doubt that infancy is no defence to an action for actual conversion of goods.

The cases on the third point are conflicting. It was early held, in Crosse v. Androes, that no action will lie against an infant innkeeper for the value of goods, stolen from his guests. 1 Rolle, Action on the Case D. 3. Jennings v. Randall, 8 Term Rep. 335, has been a leading authority on this subject. It was an action on the case for injury done to the plaintiff's mare, which the defendant had injured by riding farther and faster than he had agreed to do. And it was held that the action could not be sustained, being really founded in contract. In this case, Grose, J., says, "In trover an infant is always liable." p. 337.

In this country, Homer v. Thwing, 3 Pick. 493, is a leading case, in which it was held, that trover lies against an infant, who hires a horse and goes farther than the place agreed on, to the injury of the horse. Morton, J., delivering the opinion of the court, says, it has been contended, "That infants are liable for positive wrongs, and not for constructive torts. But we know of no such distinction, and in the case of Jennings v Randall, it is expressly rejected. It is true, that an infant cannot become a trespasser by any prior or subsequent consent. But he may be guilty of tort as well by omission of duty as by commission of positive wrong. 1 Chit. Pl 65; Co. Lit. 180 b; Butler's Note, 56. He is also liable for frauds as well as torts."

It is added that "Whenever trover is the proper form of action, it will be against an infant "

In New York, a similar doctrine was laid down in Campbell v. Stakes, 2 Wend. 137. It was said in this case that tresspass will lie, if an infant hiring a horse does any wilful and positive act, which amounts to an election to disaffirm the contract; but infancy is a good plea to an action on the case, because the case affirms the contract, as was held in Jennings v. Randall.

In the United States Court, Vasse v. Smith, 6 Cranch, 226, is a strong case establishing the liability of infants. An infant defendant was held liable in trover for goods, which came rightfully into his hands under a contract of bailment, and which were not actually converted to his use, but were shipped by him contrary to the plaintiff's instructions, and were thereby lost. But Chief Justice Marshall says, "That infancy might be given in evidence in such a case; for it may have some influence on the question, whether the act be a conversion or not."

On the other hand, it was held in Pennsylvania, that infancy was a good plea in bar to an action on the case for damages, where the defendant had hired a horse to go to one place and went to another more distant, and killed the horse by severe usage. Penrose v. Curren, 3 Rawle, 351. This decision was followed in Welt. v. Welsh, 6 Watts, 1, where Gibson, C. J. notices and overrules Homer v. Thwing, Campbell v. Stakes, Peigne v. Sutcliffe, and Vasse v. Smith.

Schenk v. Strong, 1 Southard, 87, (New Jersey,) was an action on the case for damage to a carriage by an infant, who went on a different journey from the one agreed on, and failed to use due care. It was held that the action would not lie.

Towne v. Wiley, 23 Vermont, 355, was a case almost precisely parallel with Homer v. Thwing, and a similar decision was made. In this case, Jennings v. Randall was approved, on the ground that there the defendant was only guilty of an omission of duty, or the breach of an implied contract. The court say that where the defendant departs from the object of the bailment, it amounts to a conversion, but where he keeps within the terms of the bailment, infancy will protect him, although he neglects to take proper care, or overdrives a horse.

4. It was settled in Grove v. Nevill, that an infant is not liable for a false representation, which forms part of a contract, as for a false warranty of property, or of soundness; and this decision has been universally recognised as law, in England and in America, excepting in one case in North Carolina. In Green v. Greenback, 2 Marsh. 485, infancy was held to be a defence to an action on the case for fraudulent representations, that a horse, exchanged by the defendant, was sound.

In People v. Kendall, 25 Wend. 399, an infant was held liable to indictment for obtaining goods by falsely representing himself to be the owner of certain property; but Nelson, C. J. says, that he would not be liable to an action; "for it is well settled, that a matter arising ex contractu, though infected with fraud, cannot be charged with a tort, in order to charge an infant by a change of remedy p. 401. There is a dictum to the same effect in Curtin v. Patton, 11 S. & R. 305; but the only point decided in this case was, that an infant is not rendered liable on his contract by his representations that he was of full age. This point was also held in Conrad v. Birdsall, 1 John. Cas. 127; in Burley v. Russell, 10 N. Hamp. 184, and in many other cases

In West v. Moore, 14 Vermont, 447, it was held that infancy was a bar to an action on the case for fraudulent representations as to the age of a horse, made on a sale. This case is approved in Morrill v. Aden, 19 Vermont, 505 But it is doubted in Towne v. Wiley, 23 Vermont, 355. Brown v. Dunham, 1 Root, 272, is a short case to the same effect. The only case, in which an infant has been held liable for a false affirmation, which formed part of a contract, is the case of Ward v. Vance, 1 Nott & McCord, 197,

which was an action on the case for a fraudulent warranty of a horse. The ground, upon which infancy has been held to be a defence in such cases, is that the false affirmation was of the subject-matter of the contract, and that as an infant could not make a contract, he could not be guilty of fraud in making one. A different rule has sometimes been held, where an infant has procured possession of goods, by representing himself to be of full age. It is said in Comyn's Digest, Action on the Case for Deceit, A. 10, that such an action will lie, and reference is made to 1 Sid. 183. But Chetwin v. Venner, the case referred to, does not sustain the doctrine, the only decision reported being on a motion for special bail. The case was similar to Johnson v. Pie, cited above, a direct authority against the proposition of Comyn, and it was probably dropped after that decision.

In Wallace v. Morse, 5 Hill, 391, an infant was held liable to an action on the case for obtaining goods with intent not to pay for them, by fraudulently representing himself to be of age. But in Brown v. McCune, tried in the Superior Court of New York City, reported in the October number of this Journal, p. 336, an opinion against such an action was expressed by Sandford, J. In Fitts v. Hall, 9 N. Hamp. R. 441, an action was sustained against an infant, who procured goods on credit, by representing himself to be of age, and a learned and able opinion was given by Chief Justice Parker. The court approved Grove v. Nevill, but distinguished the case before them from that, on the ground that there the representation was part of the contract, and that if false, it furnished ground to maintain assumpsit; but here the representation was no part of the contract, and did not result from it. The tort was held to be a distinct and positive wrong. This case is criticised in American Leading Cases, vol. 1, p. 118, where most of the cases cited above, are referred to. It was approved in a recent decision in Vermont, Towne v. Wiley, cited above.

The reasoning of the court in Fitts v. Hall seemed to be sound. There was truly no contract in this case. The defendant was not bound, because of his infancy, and the plaintiff was free from any obligation, on account of the defendant's fraud. The question is, whether infancy shall protect a party, who obtains possession of another's goods by false and fraudulent representations. The general rule is, that where wrong and injury concur, a foundation is laid for an action. Here the wrong was an actual, positive one, and an infant is as much liable for fraud as for violence It follows that he would be liable as soon as he received the goods, before he had set up his infancy as a defence to an action of assumpsit, and before any demand had been made upon him. In general, an action lies as soon as one party has obtained possession of another's goods by fraud. Furnis v. Leicester, Cro Jac. 474; Year Book, 9 H. 7, 21 b. There seems to be no good reason for holding an infant criminally liable for an act, for the consequences of of which he is not liable civilly. The question is somewhat less difficult, where the misrepresentation formed no part of the contract, as in Fitts v. Hall; but it is hard to distinguish such cases from those, where a fraudulent warranty was made.

Abstracts of Recent American Decisions.

Supreme Judicial Court of Massachusetts. - Worcester, October Term, 1852.

Action for Money had and received· Sale of an Interest in Real Estate. Plaintiff's in estate was widow of one Carter, and as such entitled to dower out of his estate, though the same had never been set off to her. Previous to 13th May, defendant was heir at law of the husband, and as guardian of

a minor heir obtained license to sell the minor's interest in the estate. It being thought best to sell it all together, the widow, and all the heirs except one, who was absent, made a bond to defendant that if he would proceed to sell the entire estate at the same time that he sold the share of the minor, they would execute deeds, &c. of their interests. He accordingly advertised the estate to be sold on the 13th May, and stated at the foot of the advertisement that the remaining heirs of the deceased would at the same time sell their respective rights, and the widow would relinquish her right of dower, so that a full and perfect title would be given.

On the 13th the estate was put up at auction, and a certain sum bid for the same. On the 17th, plaintiff's intestate committed suicide. On the 9th June, the purchaser received deeds from the heirs, and defendant as guardian, bearing date the 13th of May, and paid the full amount bid for the estate. The defendant received two shares of this amount, and this action was to recover the portion of the widow's share of the sum originally bid for her and the heirs' interest, though not paid till after her decease.

The court held, that plaintiff had no right of action, that his intestate never consummated any agreement by the delivery of any deed, or by parting with any estate; that no sale in fact took place till after her death, nor was there any binding contract for sale, and consequently she never acquired any right to claim any of the purchase-money. Fletcher,

Administrator v. Carter.

Husband and Wife - Payment by Husband of Wife's Debt. Plaintiff's wife, while sole, was indebted to one Flagg, who commenced an action against husband and wife after marriage to recover the same. The wife died, and the husband allowed himself to be defaulted, and paid the debt His wife having left property, defendant was appointed her administrator, and this action was to recover of her estate the amount so paid.

The court held, that the husband being liable for his wife's debt only during coverture, his allowing himself to be defaulted and paying the debt after her decease, made it a voluntary payment on his part, and he could no more recover than if he had volunteered to pay the debt of a third person. Judgment for defendant. Warren v. Williams, Adminis

trator.

Insolvent Debtors - Suit by Assignee - Set-off. This was an action brought for the benefit of one Holbrook, upon a note made payable to him. He became insolvent, and this note with other property was sold by his assignee, the present plaintiff, and purchased by Holbrook.

It was held, that under the stat. 1838, c. 163, the action was properly brought in the name of the assignee, and that it was competent for Holbrook to purchase and prosecute a suit to recover the note in the assignee's name. An unliquidated claim for damages for flowing defendant's land by plaintiff for mill purposes, is not a matter of set-off in an action of assumpsit for the recovery of moneys due. - Pitts v. Holmes. Mortgage Trespass Mortgagor may not cut Timber Trespass Quare Clausum. Plaintiff claimed title to the locus in quo as mortgagee; the defendant claimed as mortgagor. The alleged trespass was for cutting trees. Plaintiff had commenced a writ of entry against defendant to foreclose mortgage, and obtained conditional judgment at the time of the cutting, but no writ of possession had been issued.

Defendant contended that this suit was an abandonment of a previous possession which plaintiff had taken of the premises in pais for the purpose of foreclosing the mortgage. But query as to this, for a mortgagee may