INFANT 267 maturity tends to make him irresponsible, or to excuse him, as an equal amount of actual inca- pacity would excuse any one. But, in the case of tort, as before in the case of contract, if he gives his promise or his note as a compensation for the wrongs he inflicts, he would be held not on his promise, but only to the extent of his original liability. The most interesting and the most difficult application of the rule, that an infant is liable for his wrong doings, occurs in relation to his frauds in representing him- self as of full age. Where his tort is merely the breach of his contract, he cannot be sued on the tort, for this would be holding him in- directly to his contract. But if there is a dis- tinct wrong for which he is responsible, he is answerable, although it be connected with the contract ; and this, whether it be before or af- ter the contract. Thus, if he hires a horse for an unnecessary ride, he is not liable for the hire ; but if in the course of the ride he abuses and injures the horse, for this we should hold that he would be liable ; and if he should sell the horse, an action for its value would lie, nor would his infancy be a bar. So if he falsely and fraudulently represents himself as of full age, and on the strength of these representa- tions his note or bond is received in payment for a purchase, he cannot be held on the note or bond, nor as purchaser for the price of the goods ; but the purchaser may have redress in the proper action for his fraud. And it would seem that infancy should not be a bar to an action founded upon a false and fraudulent warranty, although on this point the authori- ties are in conflict. So if goods are sold to an infant on his fraudulent representation that he is of age, we should say that the seller might consider the sale null and void, and reclaim his goods as soon as he discovers the fraud ; but perhaps not until his refusal to pay, or some other indication of his intending injury. We do not think, however, that his mere silence, and his permitting the seller to act on the suppo- sition that he was of full age, would have this effect. When goods are sold to an infant with no fraudulent representation on his part, and with a knowledge of his infancy on the part of the seller, and the infant subsequently refuses to pay for them, and avails himself of his in- fancy, as he certainly may, to refuse payment of the price, some doubt, or at least some con- flict, exists as to the rights of the seller. Some authorities hold that the seller is remediless, because the privilege of the infant protects him altogether. Other authorities hold that this privilege goes no further than to permit him to cancel the sale if he will, for this is quite enough for his protection; and when the sale is cancelled, its effect is wholly de- stroyed, and the thing sold becomes again the property of the seller, who may repossess him- self of it at his pleasure. It seems to be uni- versally admitted that if the infant has re- ceived the goods and paid for them, he may return the goods and recover the money, but cannot recover the money without returning the goods. A very important part of the law of infancy, and that which perhaps gives rise to more disputes and litigation than any other, is that which determines the obligation of the parents in respect to infant children. Unfor- tunately, a part of this law is not quite settled. In some form or other, and in some degree, the obligation of a father to maintain his in- fant child is acknowledged by the law of all civilized communities. For the infant cannot support himself, and therefore some one must do it ; and then the only question is, whether this obligation falls directly on the state, or in the first place on the father. Justice and reason and all the best feelings of human na- ture would seem to answer that it is primarily the duty of the parent. But in England, after some uncertainty, and with some reluctance, and perhaps some tendency to make this moral obligation of the father a legal one also, it seems now to be the prevailing and perhaps established rule, that there is no other founda- tion for the liability of the father for necessa- ries supplied to the child, excepting the princi- ple of agency ; that is, the father is liable only when the child contracts for them, and may be deemed the agent of the father in making the contract. In a number of our states this doc- trine has been very positively asserted. But in England, and in all of the United States which require the father's authority to be proved, this authority is inferred from very slight evidence. Perhaps no case goes so far as to say directly, that if a father sees or knows that goods are supplied to his infant child, and he does not signify his dissent, his assent and responsibility may be inferred ; but some of them go, in fact, to almost this extent. But the question occurs: How would these courts decide where the case was one which made agency or authority impossible? As if an infant of a month old, or an older child reduced to utter incapacity by starvation or illness, were lost in a wood, and found by a person who supplied him with strict necessa- ries; would he have no claim on the father? Perhaps the law on this subject cannot be said to be determined either in England or Amer- ica ; but as prevailing rules, in this country at least, derived from an investigation and com- parison of the authorities, we should say: 1, where goods are supplied to an infant which are not necessaries, the father is not answer- able unless his authority can be proved in the common way; 2, where necessaries are supplied, his authority will be presumed, unless he either supplied them himself, or was ready to supply them ; 3, where an infant lives with the father or under his control, the father's judgment as to what the child should have will be so far respected, that he will be held liable only for those things which were strictly necessary to preserve the child from absolute want and suf- fering ; 4, where the child has voluntarily left the father, and does not live with him, the
