Infants how far tenderness of age material to their liability. (c) Intermediate between the two above classes of cases is that of a trespass to land or goods of which the bankrupt has the bare possession, and the trustee has the property; in which case it appears that the bankrupt may sue for the invasion of his possession, and recover damages nominal or substantial according as the trespass was or was not accompanied with matter of aggravation, and the trustee may sue in respect of his property or right of possession, and recover damages for any injury done to the land or any damage to or conversion of the goods. The authorities, indeed, only decide that the bankrupt may sue in respect of his possession; they do not expressly decide that he cannot recover in such action for the injury to the property, but they seem so to suggest (a). The point, however, is not clear. Any property which a bankrupt may acquire after his adjudication and before his discharge is, until the trustee intervenes, to be regarded as the property of the bankrupt (b). For any torts to such property, therefore, the bankrupt, in the absence of any intervention by the trustee, may sue. Infants are liable to be sued for torts of all kinds, and except when the action is founded upon malice or want of care, the tenderness of the infant's age is immaterial (c). Thus a child, however young, will be liable for the consequences of a direct trespass, although his youth may have rendered him unable to foresee those consequences; it will be sufficient to fix him with liability that he intended to do the physical act which constituted the trespass. In Mangan v. Atterton (d), where a child aged four put his fingers between the cogs of a machine while his schoolfellows turned the handle, and then sought to recover damages from the owner of the machine for exposing it unfenced in a public place, Bramwell, B., said: "Suppose this machine had been of very delicate construction and had been injured by the (a) Brewer v. Dew, (1843) 11 M. & W. 625; Rogers v. Spence, (1844) 13 M. & W. 571; 12 Cl. & F. 700. (b) Cohen v. Mitchell, (1890) 25 Q. B. D. 262. (c) As, however, apart from special contract, a parent is not responsible to a third party for the debts or torts of his child, the utility of taking proceedings against a child is, in the majority of cases, problematical. See McQueen, Law of Husband and Wife, 4th ed. p. 82. (d) (1866) L. R. 1 Ex. p. 240. child's fingers, would not the child in spite of his tender years have been liable to an action?" But where the cause of action depends on the malice or the negligence of the defendant, the child's age will be material, and it will be a question for the jury whether he was of such an age that he ought to have foreseen the consequences of his act, and that malice or want of due care could reasonably be predicated of him (a). liable in trover for goods delivered to him under a contract. Where a cause of action is really founded upon contract, the Infant when plaintiff cannot avoid the defence of infancy by framing his action in tort. If goods are delivered to an infant under a contract of sale, and the infant was not guilty of any deception in concealing his infancy from the vendor, the latter cannot in an action of trover recover the goods or their value. This was always the rule at common law, and it is apprehended that the Infants' Relief Act, 1874 (b), makes no difference in this respect; the enactment that all contracts for goods supplied to infants which were theretofore by law voidable should be void, presumably merely meant that they should be incapable of ratification, and not that the party contracting with the infant should be entitled to treat the contract as a nullity. Moreover, in spite of the general rule of law that an infant is not liable, apart from deceit, for a misrepresentation that he was sui juris, whereby a party was induced to contract with him (c), it has been held that if the infant, at the time of obtaining the goods, was actually guilty of fraud in concealing his minority, the vendor may rescind the contract, and as the infant would no longer hold the goods under the contract the vendor may recover them in trover (d). But if before discovery of the fraud the infant has parted with the goods for value, it is then too late to rescind, and the vendor is without remedy; he cannot sue in deceit for damages, for that would be in substance a means of enforcing the contract to pay the price (e). Where goods have been delivered to an infant under a contract (a) See Ch. XV., and cases there cited. (b) 37 & 38 Vict. c. 62. (e) Liverpool Adelphi Loan Associatwn v. Fairhurst and Wife, (1854) 9 Ex. 422. (d) Mills v. Graham, (1804) B. & P. 1 N. R. 140. (e) Johnson v. Pye, (1665) 1 Sid. 258; Price v. Hewett, (1852) 8 Ex. 146. When in trespass. Injury to infant en ventre sa mère. Agreement to settle action voidable. Lunatics. of bailment, the bailor, in the absence of any fraudulent concealment of the infancy, cannot bring trover to recover the goods so long as the agreed term of bailment continues. But as soon as the bailment has ceased (a), either by effluxion of time, or by some act on the part of the infant, so inconsistent with the terms of the bailment as to entitle the bailor to treat it as determined, as, for instance, where the infant pledges the goods, the bailor may sue for the goods or their value. An infant bailee may be sued for any independent trespass committed by him to the goods bailed. Whether in any particular case an improper dealing by the infant with the goods bailed to him is a mere breach of the contract or amounts to an independent tort it is not always easy to determine. It has been held that if an infant hire a horse, the riding of the horse for an improper distance is a mere excess of the hirer's rights under the contract, and if the horse be thereby injured he will not be liable (b); but if he jump the horse knowing it to be in an unfit condition to be jumped and being expressly prohibited from jumping it, that is an independent tort for which he will be liable (c). The question whether in such cases the wrongful act is a mere excess or outside the contract altogether, is one of degree. An action for personal injuries will not lie at the suit of an infant which was en ventre sa mère at the time of the accident (d). But an acceptance by an infant of a lump sum down as settlement in full of an action already commenced by the infant's guardian ad litem constitutes no bar to the proceedings (e). There is no reported instance of an action of tort ever having been brought in this country against a lunatic, but it is apprehended that lunatics are liable for torts to the same extent as sane persons, provided that the torts are committed by them while in that condition of mind which is essential to liability in sane persons. If a lunatic commit a trespass while in a state of frenzy he will not be liable any more than a sane person who (a) See per Cave, J., in Reg. v. (c) Burnard v. Haggis, (1863) 14 C. B. N. S. 45. (d) Walker v. Great Northern R. C of Ireland, (1890-1) 28 L. R. Ir. 69. (e) Mattei V. Vautro, (1898) 7 L. T. 682. does a similar act while under the influence of sudden terror which deprives him of all power of deliberate choice; but subject to that exception the defendant's lunacy will be no answer to an action of trespass, for he is capable of intending the physical act which he does (a). Whether a lunatic can be sued for a libel would seem to depend upon the question whether he was insane upon the subject to which the libel related; if he was, then presumably he would not be liable, for liability in libel depends upon a consciousness that the matter published is defamatory; but if he was sane on that subject, then, although insane on other subjects, he ought to be held answerable in damages (b). But there is no authority on the point to be found in the books. The liability of a lunatic in an action for negligence seems to stand on the same footing as the liability of a young child in a similar action, that is to say, it is a question for the jury whether he was sufficiently self-possessed to be capable of taking care. By the common law a married woman could not either sue or be sued unless her husband were joined with her as plaintiff or defendant, but now by the Married Women's Property Acts, 1882 and 1893, she may both sue and be sued in tort in all respects as if she were a feme sole, and any damages or costs recovered by her in any such action shall be her separate property, and any damages or costs recovered against her shall be payable out of her separate property (c). For torts committed by a woman before her marriage her husband was formerly liable to the full extent of the damages recovered, but now by the above Act his liability is limited to the extent of the property acquired by him through his wife (d). But for the wife's torts committed Husband when liable for wife's torts. during coverture the husband's liability continues to be unlimited (a). And as the old common law action against the husband and wife jointly in respect of the torts of the wife still exists, there cannot be separate judgments with regard to the husband and wife. Consequently a payment into Court by the husband in satisfaction of the claim, coupled with a denial of liability by the wife, is not an admissible method of pleading (b). The reason why a husband was liable at common law for his wife's antenuptial and postnuptial torts was simply that during coverture she could not be sued without him (c). Therefore, as soon as the coverture comes to an end by divorce (d), or by the wife's death (e), the husband's liability ceases, even though an action to establish it may have already been commenced. It has also been expressly provided by statute that for torts committed by a wife while separated from her husband under a judicial separation he shall not be liable (f), but whether a decree of judicial separation has, like a divorce, the effect of causing a vested right of action to abate does not seem clear. A husband remains liable for his wife's torts committed during coverture although living apart from him under a voluntary separation (g), and probably also during the currency of a decree nisi (h). It is, however, submitted, though there is apparently no direct authority to support the proposition, that the commission of a marital offence by a wife living, by agreement, apart from her husband should avoid the husband's liability for a tort committed by her, subsequently to the adultery. In Wainford v. Heyl (i), Jessel, M.R., took a different view as to the ground of a husband's common law liability for his wife's torts; he said, "Strictly speaking, she cannot commit torts; they are the torts of her husband, and therefore she creates as against her husband a liability;" but this view seems irre (a) Seroka v. Kattenburg, (1886) 17 Q. B. D. 177; and see Earle v. Kingscote, (1900) 1 Ch. 203. (b) Beaumont v. Kaye, (1904) 1 K. B. 292, C. A. (c) Per Erle, C.J., (1864) 17 C. B. N. S. P. 748. (d) Capel v. Powell, (1864) 17 C. B. N. S. p. 743. (e) Per Willes, J., Wright v. Leonard, (1861) 11 C. B. N. S. p. 266. (ƒ) 20 & 21 Vict. c. 85, s. 26. (g) Head v. Briscoe, (1833) 5 C. & P. 484. (h) Norman v. Villars, (1877) 2 Ex. D. 359. () (1875) L. R. 20 Eq. p. 324. |