reasoning stated in the last paragraph the general rule is, that infants are responsible equally with adults for all wrongs and trespasses committed by them, which are independent of contract relations between them and the person injured, and except in cases where malice enters as a necessary ingredient in the wrong, in such cases they may or may not be liable, according to the circumstances which show whether or not the infant has attained sufficient age to justify the imputation of malice.10 So where a boy of six broke and entered the plaintiff's premises and damaged his shrubbery and flowers, he was held liable, as there was no question of intent.1

"All general statements that an infant is responsible like any other person for his torts are to be received with the qualification that the tort must not become involving an element which in his particular case must be wanting. If a child of less than seven years of age cannot be held responsible for a larceny because of defect of understanding and incapacity to harbor a felonious intent, it would seem preposterous to hold him responsible for a slander, the moral quality of which he would be much less likely to appreciate, and injury from which must be purely imaginary." So in torts

10 Neal v. Gillett, 23 Conn. 437; Burnard v. Haggis, 14 C. B. (N. S.) 45; Hartfield v. Roper, 21 Wend. 620; Fry v. Leslie, 87 Va. 269.

1 Huchting v. Engel, 17 Wis. 230, 84 Am. Dec. 741; School Dist. v. Bragdon, 23 N. H. 507; Baxter v. Bush, 29 Vt. 465; Marshall v. Wing, 50 Me. 62.

2 Cooley on Torts, 121.

springing from negligence, the infant's capacity and maturity are important as regards the degree of care he would be obliged to use, and as respects the contributory negligence of the party injured by him.

An infant is not to be excused from answering for his torts to the party injured, by the fact that the act was commanded or advised by one in a position of influence or authority over him, though this would excuse him in some cases from criminal prosecution. Neither is a parent liable for the acts of his child because of the relation, and in order to charge a father or other person having authority over an infant with the latter's torts, or wilful or malicious acts, it is necessary to show that the parent directed or ratified the act, or took the benefit of the same as the act of a servant. And there is no general presumption that the child is acting as the servant of the father, though such a presumption may arise where the child is living with the father and using his team."

Generally, where the wrong or injury is the result of negligence or active wrongdoing, or even wilful fraud, the infant is not liable if the form of the action presupposes a contract, or it grew out of a contract. So where the substantial ground of the action rests on promises, the plaintiff cannot, by changing the form of the action, 3 Scott v. Watson, 46 Me. 362; Wilson v. Garrard, 59 Ill. 51; Humphrey v. Douglass, 10 Vt. 71.

* Cooley on Torts, 122; Shockley v. Shephere, 9 Houst. 271; Smith v. Davenport, 45 Kan. 423.

5 Schoefer v. Osterbrink, 67 Wis. 495; Kumber v. Gilham, 103 Wis. 312.

render a person liable who would not have been liable on his promise on account of infancy. For negligence in the performance of a contract the infant is not liable, the test of an action ex-delicto is whether it can be made out without taking notice of the contract."

There is a conflict of authority as to whether an infant is liable in tort for falsely representing himself of full age, and thereby securing another to contract with him to his prejudice. In England the rule is that he is not liable, and this is followed by some cases in this country. But many other cases hold to the contrary that the infant is liable under such conditions.9

6 Green v. Greenbank, 2 Marsh, 485; Gilson v. Spear, 38 Vt. 311.

7 Lowery v. Cate, 108 Tenn. 54, 57 L. R. A. 673; Caswell v. Parker, 96 Me. 39. In the last case the court says; "It is a general rule that when the substantial ground of action is contract, a party cannot, by declaring in tort, make the infant liable when he would not have been in an action of contract. The form of the action does not determine their liability, and they cannot be made liable when the cause of action arises from a contract, although the form is ex delicto." But in several cases infants have been held liable for departing from the bailment contract, as where a horse was hired to go to one place, and then wrongfully driven to another and thereby injured. These actions are claimed to be founded on the conversion and not on the contract. Hall v. Corcoran, 107 Mass. 251; Churchill v. White, 58 Neb. 22; Homer v. Thwing, 3 Pick. 492. Contra, Wilt v. Welsh, 6 Watts (Pa.) 9.

8 Johnson v. Pye, 1 Lev. 169; Livingston v. Cox, 6 Pa. St. 360; Carpenter v. Carpenter, 45 Ind. 142; Slayton v. Barry, 175 Mass. 513; Nash v. Jewett, 61 Vt. 501; N. Y. B. & L. Co. v. Fisher, 23 App. Div. 363, 48 N. Y. S. 152.

9 Frits v. Hall, 9 N. H. 441; Rice v. Boyer, 108 Ind. 472; 54 N. Y. 249.

An infant is not liable to an action for the negligent acts of those employed by him, as the doctrine of respondeat superior rests upon the relation of master and servant, which is a contract relation express or implied, and for such matters he is not liable.10

Sec. 401-26. SAME SUBJECT- LIABILITY OF PERSONS NON-COMPOS MENTIS FOR TORTS.-By a parity of reasoning as in the case of infants, persons suffering from mental incompetency are yet held liable for their positive wrongs whereby injury is suffered by another. The principle being that as damage has been done, it should properly fall upon the estate of him who caused it rather than upon one who was entirely innocent, and the question of intent is not important, the matter being simply a question of proper redress for an injury suffered. Of course, the intent being absent in wrongs by persons of unsound mind, they could not be held to answer criminally, or be subject to exemplary damages. In one case it is thus reasoned:

"There is to be seen an appearance of hardship in compelling one to respond for that which he is unable to avoid for want of the control of reason. But the question of liability in these cases is one of public policy. If an insane person is not held liable for his torts, those interested in his estate, as

10 Cooley on Torts, 128; Robbins v. Mount, 4 Robt. 553, 33 How. Pr. 34; Burnham v. Seaverns, 101 Mass. 260. See also the subject of "Infancy," in Vol. 3, Chadman's Cyclopedia of Law.

relatives or otherwise, might not have a sufficient motive to so take care of him as to deprive him of opportunities for inflicting injuries upon others. There is more injustice in denying to the injured party the recovery of damages for the wrong suffered by him than there is in calling upon the relatives or friends of the lunatic to pay the expenses of his confinement, if he has an estate ample enough for that purpose.

But the rule of liability in such cases is limited in cases where malice is an express or necessary part of the wrong done, as here the mental incompetency of the defendant will negative the actual or implied existence of malice.2

Akin to mental incompetency is the condition of intoxication, and for acts of negligence or actual wrongdoing while in this condition a person is not to be excused. And this is true, even though the tortious action includes the element of malice.3

1

So one cannot excuse his active wrongdoing or torts

McIntyre v. Sholty, 121 Ill. 660, 665; Cross v. Kent, 32 Md. 581; Williams v. Hays, 143 N. Y. 442; Morain v. Devlin, 132 Mass. 87.

2 Krom v. Schoonmaker, 3 Barb. 650; Gates v. Meredith, 7 Ind. 440; Irvine v. Gibson, 117 Ky. 306. In the last two cases it is held that an action will not lie against an insane person for slander, as this action sounds in malice, and the lunatic could not be guilty of malice.

3 Reed v. Harper, 25 Ia. 87; St. Ores v. McGlashen, 74 Cal. 148. But see, Gates v. Meredith, 7 Ind. 440, where insanity caused by drunkenness was held to be an excuse for slander.