Infants are liable for torts, unless the action is really based on con tract. § I. INFANTS. In general, as we have said, the plea of infancy constitutes no defence to an action of tort: If an infant," said Lord 8 T. R. 335. Kenyon, C.J., in Jennings v. Rundall, "commit an assault or utter slander, God forbid that he should not be answerable for it in a Court of Justice." A difficulty must inevitably arise, however, from what we have already hinted, as to the very great difficulty of distinguishing accurately between torts and contracts. For many breaches of contract an action in form ex delicto could be brought: but it was laid down in the case just cited, that if the action were really ex contractu it should not be turned into one ex delicto for the purpose of avoiding by a technicality the efficacy of the plea of infancy. The plaintiff in the case declared that at the defendant's request he had delivered a mare to him to be moderately ridden, and that the defendant maliciously intending, &c., wrongfully and injuriously rode the mare so that she was damaged. The Court held it was clearly a case of contract, and that the words "wrongfully injuriously and maliciously " in the declaration could make no difference. But where an undergraduate contracted with the plaintiff for the hire of a mare, he being told at the time that it was not let for jumping because the charge would be different, and he lent it to a friend who staked it, it was held that a wrong had been committed quite independent of the question of necessaries which would arise on the plea of infancy, and that it was a trespass not within the object and purpose of the hiring. Therefore, notwithstanding the general principle which was noticed by the judges that by suing ex delicto the plaintiff could not change the nature and extent of an infant's liability, the plaintiff recovered the 14 C. B: N. S. value of the mare: Burnard v. Haggis. On the same principle, if an infant enters into a contract with respect to goods, and they are delivered to him, he will not be held liable in trover and conversion for them: Manby v. Scott. "For in this way all the infants in England would be ruined." 45. I Sid: at p. 129. Not liable for fraud inducing contract. I B. & S. 836. Sid: 258. Where therefore the contract has been induced by fraud, as in Bartlett v. Wells, more especially if the fraud be the representation that the contracting party was of full age, an action for deceit or fraudulent misrepresentation will not lie. This principle has been acted on in several cases. As in Johnson v. Pye, and Price v. Hewett, where a loan was obtained 8 Ex: 146. by an infant in this manner: Green v. Greenbank, where 2 Marsh: 485. an infant sold a horse warranting it sound: and Grove v. 1 Keb: 778. Nevill, where the sale was of another's goods, the infant representing them as his own:-" The defendant pleads nonage at the time of sale. To which the plaintiff demurred: and by Crofts, this being a tort as waste or escape, nonage is no plea. Sed curia contrà. This being no actual tort, or anything ex delicto, but only ex contractu which is voidable by plea. But it's a tort by construction of law. Windham doubted." This rule may be put in another form: "Where the substantial ground of action rests on promises, the plaintiff cannot by changing the form of action render a person liable who would not have been liable on his promise." 1 B. & P: N. R. 140. A distinction was, however, taken in Mills v. Graham. The plaintiff sent some skins to the defendant to be finished at a certain price. The defendant refused to re-deliver them, alleging infancy. Lord Mansfield held that as there could be no bailment on this account, the goods had been wrongfully in the defendant's hands from the beginning, and that an action for detinue could be brought. It must be confessed that the distinction is not very clear, because the fact that the transaction had been induced by fraud was expressly recognised. In Bristow v. Eastman an infant had embezzled 1 Esp: 172. money, and Lord Kenyon held (apparently on a principle, the converse of that laid down in Grove v. Nevill), that an action for money had and received would lie to recover it: because although the action was in point of form ex contractu yet in substance it was ex delicto. In this case too it was said that "if an action of trover had been brought for any part of the but liable in action of con tract if it is in substance for a tort. Married woman's liability for her torts. Husband's liability considered. [Tit. Baron and Feme (L).] 321. property embezzled, or an action grounded on the fraud, infancy would have been no defence." § 2. MARRIED WOMEN. By the Married Women's Property Act, 1882, sect. I (2), a married woman may be sued for her torts in all respects as if she were a feme sole, her separate property being answerable for damages recovered against her; and her husband need not be joined with her as defendant, or be made a party to any action or other legal proceeding taken against her. But it is said that the old common law right of suing both husband and wife in respect of the wife's torts is not taken away; this right must therefore be considered. The rule is thus stated in Bacon's Abridgment: "The husband is at common law answerable for all the wife's torts and trespasses during coverture: but the action must be against them both jointly: for, if she alone were sued, it might be a means of making the husband liable without giving him an opportunity of defending himself." It has been said by no less an authority than Sir George Jessel, M.R., that the wife, "strictly speaking, cannot commit torts; they are the torts of her husband, and L. R. 20 Eq: therefore she creates as against her husband a liability": Wainford v. Heyl. This dictum, however, is hardly accurate. The torts are in reality the torts of the wife, and coverture is no defence: but under the law as it stood before 1882 (and which we have assumed to be still in force if the plaintiff choose to avail himself of it), it was impossible for the wife during coverture to be either sole plaintiff or sole defendant; and by reason of this rule the husband was joined for conformity. There seems some doubt whether he was joined because he was liable, or whether this joinder made him liable to pay damages and costs of suit; but in either case it did not make him a tortfeasor, either sole or joint, nor give any cause of action against him alone; if the wife died the action abated; and if the action was brought after sentence of divorce had Erle, C.J. [cf: note on page 45.] been pronounced, the husband could not be joined: Capell v. 17C. B: N. S. Powell (1). 743. liable where husband and feasors. Where the husband and wife are joint tortfeasors of course Husband no difficulty arises, and the ordinary rules as to joint tortfeasors apply. So also where the wife is the agent of the wife joint torthusband the rules as to the liability of the principal for his agent's torts apply: for example, on the sale of a business the wife represented the daily takings as greatly in excess of what they really were; it was clear that she was the husband's agent, and that the representation was within the scope of her authority; the husband as principal was held personally liable: Taylor v. Green. § 3. CORPORATIONS. 8 C. & P. 316. may be a tort feasor, Speaking generally, an action for tort will lie against a corporation. The rule was broadly laid down in Yarborough v. 16 East 6. Bank of England in answer to the query, Can a corporation A corporation be guilty of a tort? Wherever they can competently do or order any act to be done, which as by their common seal they may do, they are liable for the consequences of such act, if it be of a tortious nature, and to the prejudice of others. Some difficulty arises, however, when the tort involves a even if the peculiar state of mind, as fraud or malice. With regard to (1) It must be confessed that this question as to the alternative course which may be adopted by the plaintiff is open to some question. It is assumed in Macqueen's Law of Husband and Wife [3rd ed., p. 92]. If the husband is joined because he is liable, as may be inferred from Bacon, then the liability is left untouched by the Act, it merely gives an additional remedy to the injured party; but then it is difficult to see why, if the wife's separate estate is insufficient, the husband's liability should not still remain, since they are not joint tortfeasors. On the other hand if the husband was joined for conformity, simply because the wife could not be sole plaintiff or defendant, then it would seem that his liability arose because he was made a party to the action, for he could not be a party and not be liable to pay damages found against him. The fact that liability ceased when it was no longer necessary to make him a party supports this view. Now therefore it would seem that as the necessity for joining him no longer exists, the husband's liability is impliedly destroyed. tort be malicious. 13. II Q. B. D. 440. As to fraud some doubt exists. L. R. I Sc: malice the law is now settled that an action will lie against the company. The opposite doctrine was formerly maintained; 29 L. J: C. P. but in Green v. London General Omnibus Co., the Court refused to entertain the argument that a company could not be said to commit a malicious act: and numerous instances are now to be found of actions for malicious prosecution being brought against companies, the most recent being Abrath v. North Eastern Ry. Co. But as to the action for deceit, some doubt may still be said to exist. The question arises when a person has been induced by fraudulent representation in the prospectus to take shares in a company. The law was thus laid down in the Western Bank of Scotland v. Addie: "Where a person has been drawn into a contract to purchase shares belonging to a company by fraudulent misrepresentations of the directors, and the directors, in the name of the company, seek to enforce that contract, or the person who has been deceived institutes a suit against the company to rescind the contract on the ground of fraud, the misrepresentations are imputable to the company, and the purchaser cannot be held to his contract, because a company cannot retain any benefit which they have obtained through the fraud of their agent. But if the person who has been induced to purchase shares by the fraud of the directors, instead of seeking to set aside the contract, prefers to bring an action for damages for the deceit, such an action cannot be maintained against the company, but only against the directors personally." The last sentence was not necessary to the decision, and was strongly L. R. 5 P. C. criticised by the Privy Council in Mackay v. Bank of New Brunswick. It was suggested in the argument that an action for money had and received might be brought, but not one of deceit; but, as was pointed out, the time has passed when much importance was attached to such forms of action, and whatever the action might be called, the question to be tried would in substance be the same, and the evidence as to fraud would also be the same. It was then held that the action for deceit would lie, wherein the fraud of the agent would be 394. |
