tion in this particular case was granted on the ground that the club ball in question was a private entertainment, at which the club might lawfully supply the guests with intoxicating liquors. It is evident from the opinion of the General Term that | on this ground the injunction would have been justified, but it appeared that tickets to the ball were sold at the door to the public, and the matter thus came within police cognizance. The opinion clearly recognizes the power of the courts by injunction to stay the attempted enforcement of a criminal law as to the persons and property to which that law does not apply. This decision negatives the contention of the Bar Association that a court of equity has no power to arrest the execution of criminal procedure. Mr. Fullerton has been "interviewed " in respect to our publication of Mr. Beach's opinion of Mr. Beecher's innocence in the Tilton case, repeated by Professor Adler in public in New York. Mr. Fullerton does not, of course, deny the truthfulness of our assertions, for he could not. He simply says that he never heard Mr. Beach say so. We never said he did. The remarks which we quoted were addressed by Mr. Beach to the Hon. Martin I. Townsend and ourselves, and we see in an "interview" with Mr. Townsend, published in a Troy newspaper, that he confirms our recollection of Mr. Beach's assertion that he believed Mr. Beecher innocent. port of Mr. Beach's opinion, says: "It finds confirmation and support from acquaintances of the late Mr. Beach in this locality. A resident of Lansingburgh says: 'Mr. Beach had old friends and companions here. He declared to them his belief in the innocence of Beecher. He said to one of them: 'I had not been four days in the trial before I was confident that he was innocent.' And he adhered years after the trial to the opinion. It seems that it is worth while to record the fact that Beach said so freely and positively, as I am told by one of the men to-day.' A correspondent also writes from Lansingburgh to the Times in the same issue: “It is a fact that Mr. Beach, in the frankness of his intimacy with gentlemen in this village, stated that he formed, and then, when he spoke, long after the trial, held the opinion that Mr. Beecher was an innocent man, and that the trial of Tilton v. Beecher established that conviction in his mind. That Mr. Beach so stated his conviction is attested by the testimony of men in respect to whose veracity no man would for a moment have any doubt." Mr. Fullerton calls us an "imprudent admirer" of Mr. Beecher, but after this corroborative testimony it would be "imprudent" in Mr. Fullerton to try to discredit our statement simply because Mr. Beach did not make a confidant of him. The first number of the Harvard Law Review, a handsome monthly of fifty pages, has come to hand, and is a very dignified and well-considered production, under the charge of the Harvard Law School students. This number has an article by Professor and one on "Tickets," i. e., railway tickets, by Joseph Henry Beale, Jr., an interesting account of the legal status of those contracts or tokens, or whatever they may be called. We wish our new contemporary a longer life than the late lamented Columbia Jurist. Mr. Beach said other things which rendered it impossible that we should be mistaken as to his opinion. Mr. Beach, Mr. Townsend and ourselves were old acquaintances, fellow-townsmen, near neigh-Ames on "Purchase for Value without Notice," bors, and practiced at the Troy bar together for many years. Mr. Fullerton does not say that Mr. Beach ever told him, or intimated to him, that he thought Mr. Beecher guilty. He merely never heard him say any thing inconsistent with the idea that he believed the charge which he prosecuted. As to Mr. Fullerton's own opinion, it is somewhat remarkable that he does not now say that he believes Mr. Beecher guilty. He conveys that impression in a guarded way, as if in great tenderness to Mr. Beecher's memory, but we have been informed that even on the trial he was never heard to say any thing of the sort. We do not see that Mr. Beach's "integrity" is in the least involved. He simply went on after Mr. Beecher's testimony, and made the best he could of a poor case, and even his greatest admirers admitted that his argument was weak, half-hearted, and unequal to his reputation. Did Mr. Beach assert in his argument that he personally believed Mr. Beecher guilty? We do not know. Unless he did there certainly be no implication against his integrity. Mr. Fullerton says that Mr. Beach "is not living." Mr. Beecher is also dead. It is said, and we have good reason to believe, that after the trial they were mutual admirers, and spoke in kind terms of one another. Since writing the above we have seen the Troy Times of April 25th, which, in speaking of our re "That was an odd request which a prisoner in the tombs preferred recently to Justice Patterson, namely, that pending appeal he had spent in the city prison as much time as his sentence would have occupied if he had gone to the penitentiary, and that therefore he should be discharged. Of course the request was denied." Probably it was only put forward to show how far the ingenuity of a lawyer can go."-Tribune. This is no new idea. same doctrine was set up in People, ex rel. Stokes, v. Warden of Prison, 66 N. Y. 332, and met with the like decision. The same doctrine was held in Sartain v. State, 18 Tex. Ct. App. 651; S. C., 38 Am. Rep. 649; Ex parte Duckett, 15 S. C. 210; S. C., 40 scoring is no part of the race. Am. Rep. 694. The ground covered by horses in NOTES OF CASES. The 'N Snyder v. Cabell, West Virginia Supreme Court of Appeals, Nov. 13, 1886, it was held that a skating-rink erected within a short distance from a dwelling-house, the noise from the skating and attending it being of such a character as to materially interfere with the comfort and enjoyment of the inmates of such dwellings, was properly enjoined by a court of equity. The court said: "Was a proper case made by the pleadings and proofs for the interposition of a court of equity? Says Mr. Wood, in his excellent work on Nuisances: 'It would be impossible to give all the instances in which courts of equity have interfered, or refused to interfere in cases of nuisances. It is enough to say that when the right is clear, and the nuisance is established, a court of equity will always interfere if the nuisance results from an unlawful act, is continuous in its nature, or if only temporary, if it is not not adequately compensable in damages. Injunctions have been granted to prevent the erection of slaughter-houses in the vicinity of dwellings, even where the neighborhood had been in a measure given up to trades of a noxious character. To prevent the continuance of the business of slaughtering cattle in the vicinity of dwellings, even when the slaughter-house was established before any dwellings were erected in the vicinity. To restrain the erection of glue-works; of works for the preparation of blood as an ingredient for Prussian blue; of melting-houses and fat-boiling establishments, boneboiling establishments; establishments for the preparation of tripe; for the manufacture of gas. To prevent use of cattle-yards; the burning of brick near dwellings; planing mills emitting dense volumes of smoke; potteries; the use of mineral coal as fuel; the burning of lime-kilns; the maintenance of livery stables near dwellings, impairing their comfort by noxious stenches, noise, and drawing flies to the vicinity; a turpentine distillery; the carrying on of noisy trades near a dwelling at unreasonable hours, so as to impair its comfortable enjoyment, or so as by agitating and various sounds and motions to produce actual injury to property; the performance of brass bands in the vicinity of dwellings, collecting crowds and impairing the comfortable enjoyment of property; a regatta near a dwelling, collecting a crowd; running railroad cars near a church on the Sabbath, and letting off steam, blowing the whistle, and ringing the bell so as to disturb divine worship there, and injure the value of the property for church purposes; the pollution of water so as to impair its use for domestic purposes, or manufacturing purposes, or so as to cause the emission of noxious smells, or so as to destroy it for domestic use, or so as to injure the navigability of the stream, or so as to impair the value of wharf property.' Wood Nuis., § 809, and cases cited. In Bishop v. Banks, 33 Conn. 118, it was held that the bleating of calves kept over night at a slaughter-house to be slaughtered in the morning was such a serious annoyance to a family dwelling near as to be a nuisance, and was enjoined. In delivering the opinion, Park, J., said: 'It is difficult to conceive of any noise more destructive to the comfort and happiness of a family than the constan wailing of animals in distress in the immediate vicinity of their residence. Enjoyment under such circumstances would require nerves of brass and a heart of steel;' that the defendant should remember the maxim, sic utere tuo ut alienum non lædas,' and conduct accordingly.' In Dittman v. Repp, 50 Md. 517; S. C., 33 Am. Rep. 325, the court decided that noise alone, if it be of such a character as to be productive of actual physical discomfort and annoyance to a person of ordinary sensibility, may create a nuisance, and be the subject of an action at law, or an injunction from a court of equity, though such noise may result from the carrying on of a trade or business in town or city. In Adams v. Michael, 38 Md. 123, it was held that a court of equity will interfere by injunction to restrain an existing or threatened nuisance to a dwelling-house if the injury be shown to be of such a character as to diminish materially the value of the property as a dwelling, and seriously interfere with the ordinary comfort and enjoyment of it, if it appear to be a case where substantial damages could be recovered at law. In Catlin v. Valentine, 9 Paige, 575, it was decided that to constitute a nuisance it is not necessary that the noxious trade or business should endanger the health of the neighborhood. It is sufficient if it produce that which is offensive to the senses, and which renders life and property uncomfortable. In Rhodes v. Dunbar, 57 Penn. 274, it was held that the courts have power to restrain noises which disturb rest and prevent sleep. In Ross v. Butler, 19 N. J. Eq. 294, it was held that when the prosecution of a business, of itself lawful, in the neighborhood of a dwelling-house, renders the enjoyment of it materially uncomfortable by the smoke and cinders, or noise or offensive odors produced by such business, although not in any degree injurious to health, the carrying on of such business there is a nuisance, and will be restrained by injunctions. In Broder v. Saillard, 2 Ch. Div. 692, it was held, in a suit by the owner and occupier of a house against the occupier of an adjoining house, complaining of noise from the defendant's stable, and damp from an artificial mound on which it stood, that the plaintiff was entitled to an injunction to prevent the defendant from keeping horses in his stable so as to be a nuisance, and that defendant was also liable for not preventing the dump from going through the plaintiff's wall. In Inchbald v. Robinson, L. R., 4 Ch. 388, it appears that a circus which was performing near a dwelling was enjoined on account of the noise. The performance in the evening lasted from about half-past 7 till half-past 10. It was proved that the noise of the music and the shouting in the circus could be distinctly heard all over the plaintiff's house, and was so loud it could be heard above the conversation in the dining-room, though the windows and shutters were closed. In Crump v. Lambert, L. R., 3 Eq. 409, it was held that smoke, unaccompanied with noise or with noxious odors, noise alone, and offensive odors alone, although not injurious to health, may severally constitute a nuisance. The * * * some material question in all cases is whether the annoy- * * ** * * Af sion from personal observation, and in this respect the questions are not analogous. But the defendant did not show, directly or inferentially, that the witness had formed an opinion as to the sanity of the defendant from information acquired while attending him, and the question was not brought within the section. Edington v. Ætna Life Ins. Co., 77 N. Y. 564-571. It will be observed that the witness did not give his opinion founded upon information acquired by him in any manner; but the opinion was founded solely upon a hypothetical question which assumed no facts which occurred subsequent to the day of the homicide. ter the witness had answered the hypothetical quesIn People v. Schuyler, 43 Hun, 88, it was held that tion he said that he did not think it possible for a physician, attending all the patients in a jail, may him to answer it without being influenced by the in answer to a hypothetical question, give his opin-opinion formed while acting as defendant's physiion as to the sanity of one of them, the question cian. Much stress is laid by the defendant upon being based on facts which occurred before his acthis answer. If it had appeared that the actual requaintance with the patient, although he also states lation of physician and patient had at some time that he is influenced in his answer by his opinion existed, and the witness had then expressed a doubt formed while so acting as the patient's physician. about his ability to answer the hypothetical question The court said: "Doctor Babbitt testified that he without being influenced by privileged information, examined and prescribed for the defendant several a debatable question would be presented. In Edtimes while jail physician, and regarded defendant ington v. Ætna Life Ins. Co., supra, a physician who as his patient. The hypothetical question did not attended the insured during 1862, and then ceased call upon the witness to disclose any information to attend him professionally, but frequently saw which he acquired in attending a patient in a prohim from that time until 1871, when he died, was fessional capacity.' The question called for an asked: 1. Was he cured when he left your hands? opinion, not for facts, and the answer disclosed no 2. In the month of May, 1867, in your opinion was facts, nothing but an opinion. The question did Wilbur F. Diefendorf (the insured) a man in good not assume the existence of a fact which related to health and of sound body, and one who usually endefendant's physical or mental condition or conduct while in jail, nor did it assume the existence joyed good health? 3. Excluding any knowledge or information that you obtained while treating of any fact which the witness could have learned Diefendorf, and judging from his appearance from while attending the defendant in a professional cathat time until 1867, what is your opinion as to pacity, but the witness was called upon to give his whether he was a man in good health, of sound opinion, based exclusively on facts which were asbody, and a man who usually enjoyed good health?' sumed to have occurred before defendant was These questions were excluded at the trial, but known to the witness. It seems a work of superewere all held competent by the Court of Appeals. rogation to attempt to demonstrate that the quesThis case arose under the Revised Statutes, which tion is not prohibited by the section quoted, unless are not different from the Code so far as the quesit must be held, as a matter of law, that this wittion under consideration is concerned. The third ness was incapable of excluding from his considertion facts learned or opinions formed while attending the defendant, and giving an opinion founded exclusively upon assumed facts which might be deemed to relate to another person as well as to the defendant. The witness testified that he could exclude from consideration all information acquired in attending the defendant, and form and give an opinion upon the facts assumed, and this court cannot declare, as a question of law, that he could not. Persons who have opinions in respect to the guilt or innocence of a defendant, formed from reading or hearing accounts of the alleged crime, are competent to sit as jurors if it be established to the satisfaction of the court that they are capable of divesting themselves of the opinion so formed, and of rendering an impartial verdict on the evidence. In the case of a juryman his opinions are not formed from personal observation, while in the case at hand the witness may have derived an opinion or impres question above quoted calls for an opinion based upon information personally acquired by the witness, while the hypothetical question asked in this case removes the opinion asked for much further from the statute." In Sharpley v. Brown, 43 Hun, 375, an action under the civil damage act for damages by the death of the plaintiff's husband, it was held that evidence of the plaintiff's remarriage was competent on the 66 means of support." The question of injury to her court said, by Learned, P. J.: "In Volans v. Owen, 74 N. Y. 526; S. C., 30 Am. Rep. 337, which was an action for injury to means of support,' the court say that the accustomed means of maintenance must have been cut off or curtailed, and that 'diminution of income or loss of property does not constitute an injury to means of support within the fair intendment of the statute if the plaintiff, not 6 CONVERSION against infant. The complaint al leged that defendant, with intent to defraud plaintiff, had falsely represented himself to be of age, and relying upon this representation plaintiff was induced to sell and deliver to defendant a buggy and a set of harness, taking in payment defendant's note and bis mortgage on the property sold; that defendant was not of age, and therefore these obligations cannot be enforced, and that he now repudiates his contract; and that plaintiff brings the note and mortgage into demands judgment for the value of the property. The court, and tenders them to defendant, whereupon he action was brought before the maturity of the note. Defendant's demurrer was sustained and plaintiff appealed. F. F. Moore, for appellant. rial and controlling question in the case is this: Will ELLIOTT, C. J. [Omitting minor points.] The matean action to recover the actual loss sustained by a plaintiff lie against an infant who has obtained property on the faith of a false and fraudulent representation that he is of full age? Infants are, in many cases, liable for torts committed by them, but they are not liable where the wrong is connected with a contract, and the result of the judgment is to indirectly enforce the contract. Judge Cooley says: "If the wrong grows out of contract relations, and the real injury consists in the non-performance of the contract into which the party wronged has entered with an infant, the law will not permit the former to enforce the contract indirectly by counting on the infant's neglect to perform it, or omission of duty under it as a tort." Cooley Torts, 116. In another place the same author says: "So if an infant effects a sale by means of deTorts, 107. Addison, following the English cases, says an infant is not liable "if the cause of action is withstanding, has adequate means of maintenance from accumulated capital or property, or his remaining income is sufficient for his support.' This remark shows that actions, under the so-called civil damage act, are different from those of which a large number are cited by the plaintiff's counsel, as for instance, Terry v. Jewett, 78 N. Y. 338; Kellogg v. N. Y. C. & H. R. R. Co., 79 id. 72, and the like. In actions for common-law injuries to the person the damages would not be diminished by the possession of 'accumulated capital or property' by the injured person. But in this class of actions the court say that such possession not merely might diminish the damages, but might altogether defeat the action. Stevens v. Cheney, 36 Hun, 1. Now the possession of another husband might be as useful to this plaintiff as the possession of 'accumulated capital or property,' so far as the means of support were concerned. It is true that she could not have been in possession of another husband at her first husband's death. But if, shortly after her first husband's death, she had come into the possession of such property as gave her an ample support, it seems to us, under the decision above cited, that this might have been shown upon the trial. Evidently the possession of such property at the husband's death may be shown, notwithstanding the possibility that the property might afterward be lost or become worthless. So it seems to us, as the court have said that the primary purpose was the protection of the dependent and helpless, that it is material to show to what extent the plaintiff is de-ception and fraud, his infancy protects him." Cooley pendent and helpless. This cause of action was unknown to the common law, and cannot be made analogous to other actions. The plaintiff evidently thought the evidence of the second marriage was proper, because she made no objection to it when given. It was subsequently stricken out by the court, the plaintiff saying that she did not ask to have it stricken out, and an offer of similar evidence was afterward made, and the evidence was excluded. To illustrate, let us suppose that the husband had not died, but had only been disabled from working by his intoxication, and that plaintiff had sued for loss of means of support. Would it | not be material, on the question of damages, to show that she had left her husband, and was living with and supported by another man? So in the present case, she is (but lawfully) living with, and entitled to the support of another man, her present husband. Does not this condition affect the extent of injury to means of support which she suffers by the former husband's death?" INFANCY-LIABILITY FOR FRAUDULENT REPRESENTATION. SUPREME COURT OF INDIANA, DEC. 16, 1886. RICE V. BOYER. An infant is liable, as for deceit, for an injury resulting by reason of a fraudulent representation that he was of full age. grounded on a matter of contract with the infant, and constitutes a breach of contract as well as a tort.' Add. Torts, par. 1314. Upon this principle it has been held in some of the cases that an infant is not liable for the value of property obtained by means of false representations. Howlett v. Haswett, 4 Camp. 118; Green v. Greenbank, 2 Marsh. 485; Vasse v. Smith, 6 Cranch, 226; S. C., Am. Lead. Cas. 237; Studwell v. Shapter, 54 N. Y. 249. It is also generally held that an infant is not estopped by a false representation as to his age; but this doctrine rests upon the principle that one under the disability of coverture or infancy has no power to remove the disability by a representation. Carpenter v. Carpenter, 45 Ind. 142; Sims v. Everhardt, 102 U. S. 300; Whitcomb v. Joslyn, 51 Vt. 79; S. C., 31 Am. Rep. 678; Conrad v. Lane, 26 Minn. 389; S. C., 37 Am. Rep. 412; Wieland v. Kobick, 110 Ill. 16; S. C., 51 Am. Rep. 676; Ward v. Berkshire Life Ins. Co., MS. It is evident, from this brief reference to the authorities, that it is not easy to extract a principle that will supply satisfactory reasons for the solution of the difficulty here presented. It is to be expected that we should find, as we do, stubborn conflict in the authorities as to the question here directly presented, namely, whether an action will lie against an infant for falsely 1 Sid. 258; Price v. Hewett, 8 Exch. 146; Liverpool, representing himself to be of full age. Johnson v. Pye, etc., Ass'n v. Fairhurst, 9 id. 422; Brown v. Dunham, 1 Root, 272; Curtin v. Patton, 11 Serg. & R. 309; Homer v. Thwing, 3 Pick. 492; Word v. Vance, 1 Nott & M. 197; Fitts v. Hall, 9 N. H. 441; Norris v. Vance, 3 Rich. 164; Gilson v. Spear, 38 Vt. 311. Our judgment however is that where the infant does fraudulently and falsely represent that he is of full age, he is liable in an action ex delicto for the injury resulting from his tort. This result does not involve a violation of the principle that an infant is not liable where the consequence would be an indirect enforcement of his contract; for the recovery is not upon the contract, as that is treated as of no effect, nor is he made to pay the contract price of the article purchased by him, as he is only held to answer for the actual loss caused by his fraud. In holding him responsible for the consequences of his wrong, an equitable conclusion is reached, and one which strictly harmonizes with the general doctrine that an infant is liable for his torts. Nor does our conclusion invalidate the doctrine that an infant has no power to deny his disability; for it concedes this, but affirms that he must answer for his positive fraud. Our conclusion that an infant is liable in tort for the actual loss resulting from a false and fraudulent representation of his age is well sustained by authority, although, as we have said, there is a fierce conflict, and it is strongly entrenched in principle. It has been sanctioned by this court, although perhaps not in a strictly authoritative way; for it was said by Worden, J., speaking for the court, in Carpenter v. Carpenter, supra, that "the false representation by the plaintiff, as alleged, does not make the contract valid, nor does it estop the plaintiff to set up his infancy, although it may furnish ground of an action against him for tort. See 1 Pars. Cont. 317; 2 Kent Com. (12th ed.) 241." The reasoning of the court in the case of Pittsburgh, etc., Co. v. Adams, 105 Ind. 151, tends strongly in the same direction. In Neff v. Landis, 1 Atl. Rep. 177, it was said: "It cannot be doubted that a minor who, under such circumstances, obtains the property of another by pretending to be of full age and legally responsible, when in fact he is not, is guilty of a false pretense, for which he is answerable under the criminal law. 2 Whart. Crim. Law, 2099." If it be true, as asserted in the case from which we have quoted, that an infant who falsely and fraudulently represents himself to be of full age is amenable to the criminal law, it must be true that he is responsible in an action of tort to the person whom he has wronged. The earlier English cases were undoubtedly against our couclusion, but the later cases seems to take a different view of the question. Thus in Ex parte Unity, etc., Ass'n, 3 De Gex & J. 63, it was held that in equity, an infant, who falsely and fraudulently represented himself to be of full age, was bound to pay the obligation entered into on the faith of his representation. In the note to the case of Humphrey v. Douglass, 33 Am. Dec. 177, Mr. Freeman says, in speaking of the decision in Kilgore v. Jordan, 17 Tex. 341, that "aside from any question of authority, the rule given in the case last cited by Hemphill, C. J., as the rule of the Spanish, derived from the civil law, that if a minor represents himself to be of age, and from his person he appears to be so, he will be bound by any contract made with him, seems to be most consonant with reason and justice." Mr. Pomeroy pushes the doctrine much further than we are required to do here, for he says: "If an infant procures an agreement to be made through false and fraudulent representations that he is of age, a court of equity will enforce his liability as though he were an adult, and may cancel a conveyance or executed contract obtained by fraud. 2 Pom. Eq. Jur. 465. In addition to cases cited which sustain our view, may be cited the following authorities: Fitts v. Hall, 9 N. H. 441; Eckstein v. Frank, 1 Daly, 334; Schunermann v. Paradise, 46 How. Pr. 426; Tyler Inf. 182; 1 Pars. Cont. 317, note; 1 Story Eq. Jur. 385. The English cases recognize a distinction between suits of equitable cognizance and actions at law, and declare that a representation as to age, when falsely and fraudulently made, will bind an infant in equity. Ex parte Unity, etc.,supra, and authorities cited. Under our system, we can recognize no such distinc tion, a distinction which is, as we think, a shadowy one under any system, for in our system the rules of law and equity are merged and mingled. Under such a system as ours, courts should pursue such a course as will render justice to suitors under the rules of equity, which after all, are but the embodiment of the principles of natural justice. It cannot be the duty of any court of Indiana to deny substantial justice because the complaint states a cause of action in a peculiar form; for uuder our system, courts must render such judgments as yield justice to those who invoke their aid, irrespective of mere forms, in all cases where the substantial facts are stated, and are such as entitle the party to the general relief sought. They will not inquire whether the proceeding which asks their aid is at law or in equity, but they will render justice, to those who ask it, in the method prescribed by our Code of Civil Procedure. It is laid down as a general rule by all the text-writers that infants are liable for their torts; but many of these writers, when they come to consider such a question as we have here, are sorely perplexed by the early English decisions, and by subtle refinement attempt to discriminate between pure torts and torts connected with contracts, and to create an artificial class of actions. Their reasoning is not satisfactory. Aside from mere personal torts, it is scarcely possible to conceive a tort not in some way connected with a contract, and yet all the authorities agree that the liability of infants is not confined to mere personal torts. There is a connection between a contract and a tort in every case of bailment, of the bargain and sale of personal property, and of the purchase and sale of real estate; and if an infant is not responsible for his fraudulent representation of his age in connection with such transaction, there is not within the whole range of business transactions any case in which he could be made liable for his fraud. There are many cases, far too numerous for citation, where there is some connection between the contract and the tort, and yet it is unhesitatingly held that the infant is liable for his tort. Cooley Torts, 112, authorities cited in notes. The cases certainly do agree - it is indeed difficult, if uot impossible, to perceive how it could be otherwise that although there may be some connection between the contract and the wrong, the infant may be liable for his tort. It seems to us that the only logical and defensible conclusion is that he is liable, to the extent of the loss actually sustained for his tort, where a recovery can be had without giving effect to his contract. The test, and the only satisfactory test, is supplied by the answer to the question: Can the infant be held liable without directly or indirectly enforcing his promise? There is no enforcement of a promise where an infant, who has been guilty of a positive fraud, is made to answer for the actual loss his wrong has caused to one who has dealt with him in good faith, and has exercised due dili. gence; nor does such a rule open the way for designing men to take advantage of an infant, for it holds one who contracts with an infant to the exercise of good faith and reasonable diligence, and does not enable him to make any profit out of the transaction with the infant, for it allows him only compensation for the actual loss sustained. It does not permit him to make any profit out of an executory contract, but it simply makes good his actual loss. It is worthy of observation, that in the cases which hold that an infant's representation will not estop him to deny his disability, it is generally declared that he may nevertheless be held liable for his tort. It may often happen that the age and appearance of the infant will be such as to preclude a recovery for a fraud, because reasonable diligence, which is exacted in all cases, would warn the plaintiff of the nonage of the defendant. On the other hand, the infaut may be in years almost of full |