August 5, 1907.]
spirit of the plaintiff's mother is obviously still brooding over the proceedings. The arguments advanced by his learned Counsel were such as a mother might legitimately use on behalf of her infant, bat are quite inappropriate as coming from him, a man of full age, who must appear before the Court standing on his own legs, unsupported by maternal proppings. The arguments which he advances in favour of the relief he prays must be such as are appropriate to a man with moderately clean hands."
At a certain point in the proceedings some highly improper pressure was brought to bear on him by the husband of the defendant to induce him to change his solicitors and disoon. tinue the action, which he did. I shall have presently to consider what cousequences must follow from this. But the matter having been brought before me in Chambers in a proper manner by the solicitors on the record: it was agreed that I should examine the young man, and make such orders or suggestions as the circumstances of the case might seem to require. I did so, and having come to the opinion that the change of the solicitors has been induced by devices on the part of the husband of the de- fendant which i could not countenance. but which were unknown to the solicitor to whom Li Leung had gone, he adopted my suggestion, and very properly abandoned his retainer: the original solicitors reverting to their original position. But a prolong. ed examination of Li Leung induced to come to the conclusion that he did then quite honestly and sincerely desire to repay this money, because he had had it and used it. I was also convinced that however much his feelings might have been played upon by Lai King Chi, he was, naturally perhaps, in mortal terror of his mother. What he said to me obviously however, did not amount to a ratifica. tion of his contracts: but I am clear that a combination of terror of his mother, and a
me
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CHINA OVERLAND TRADE REPORT.
71
propriety have such dealings, is contrary to on the ground that adults only could with principle, is of dangerous consequence, and is different the case has no bearing on the present. not established by authority." The facts being
presentation a little more closely. The Lord "Nelson v. Stooker deals with the case of re- Justices had no doubt that, if the case had really been one of false representation, there would have been no doubt about the matter, and the infant would not have had relief. "Infanta ara по more entitled than adults to gain is different where the person to whom the benefits to themselves by fraud." But the case representation is made knows it to be false; then not to be broken in upon. "If the contracts of the policy of the law in protecting infants is infants with persons who know them to be under age
started. These suggestions, and I am very far I now come back to the point from which I from saying that they are not reasonable suggestions, from this point of view, set up a case of suspicion to the mother, who is obviously in ignorance of the real facts, and Counsel for the mother might rightly have insisted on the matter being proved to the bottom. But the case is the case of Li Leung, an if he will for- give my pointing it out to him, the learned Counsel for this plaintiff pitched the case altogether too high. He now represents his all the frands in which he has participated, has client, and this man, with a full knowledge of
no right to come forward with a case of suspi- what he does not know he must keep silence. cion. What he knows he may prove as to Now as to the law of infants relief. I derive the following principles from the decisions :
In the first place I cannot understand upon the ground that the infants represented are held not to be binding, Lempriève v. Lange' from the report of the themselves to be of age, there will hardly cannot at the same time claim to have the lease be of any avail, and the door will be open case. All that is said is that "the plaintiff be a case in which the plea of infancy will declared void and to make the defendant liable to all frauds against infants from which the for use and occupation", which conveys no Jaw was intended to protect them. referred to the decision in a later Exp. the one hand, it cannot be used by infants reason to any one's mind. But Jessell M.R.privilege of infancy is a legal privilege. On Jones v. Jones." He said "use and occupation for the purposes of fraud. is founded on
On the other an implied contract". How hand, it cannot, I think, be allowed to be against a person who is incapable of contract- can the Court imply
contract as infringed upon by persons who, knowing of the infancy, must be taken also to know of ing ? With the greatest respect for so eminent the legal consequences which attached to it." a Judge I can only say' why not ?' It is at best having logic on its side: but I very much doubt a brilliant repartee which has the appearance of its logical soundness: The contractual implicat- ion was for the technical purpose of action only, and depends on no principle. They are fioti- tions contracts, says one learned author: they are not contracts at all, says another very learned anthor. The law, as stated, implica that a boy himself, walk out without paying, and then may go into a railway refreshment bar and help plead infancy if he is sued in the County Court; which seems to me as opposite example of what the law really is as the "infant orange sellers" referred to during the argument in that case.
could not file a bankruptcy petition against an The decision in "Exp. Jones" was that you infant because, being an infant, there was no debt in respect of which the petition could be filed. That is an intelligible deduction from the law of infancy.
is apparently of fall age-stress is laid in some But this was also admitted, that if a man who cases on the appearance, which is supposed to that he is of full age, the person to whom he put the other party on his gaard-represents makes the representation may well be deceived by it. fraud in equity just as he is capable of com- An infant is capable of committing & mitting a crime, and may be made liable for it. But the authorities show that there must be au
express representation and one which would made. naturally deceive the person to whom it is
The
"Johnson v. Pie" was much relied on by the lent to the defendant, who was plaintiff. The action was to recover £3000 to mortgage certain lands, affirming himself therefore
to be of full age and 80 intending to deceive the plaintiff, being in appearance a man, but alleging himself now to be but 20 and a half. The report is not too clear bat it is thus referred to in Liverpool Loan Association v. Fairburst In the case of an infant it was held that he could not be made
"
liable for a fraudulent representation that he was of full age whereby the plaintiff was in- duced to contract with him, for it was said that, if the action should be maintainable, all the pleas of infancy would be taken away. for such affirmations are in every contract.” shall refer to presently but before adopting The emphasis is on the last comment, which I the decision to the present case we must see what it really decides.
oupidity excited by a prospect of getting his misspent property back again induced him to take up a new position in the witness box.
And that is the only thing I can now have regard to It is clear that he fell among thieves: but he was not so blind as not to have understood what he was doing. I have no doubt that he was, if not quite a willing, at least not an unwilling tool in their hands. But he now wishes the Court to believe that the defendant was includ. ed in this gang of thieves. I cannot believe this on mere suggestion, it must be brought home convincingly to my mind. There is no doubt that some of his accomplices accompanied him to the solicitor's office, and thereupon I felt bound to stretch the law of evidence very much in his favour. I admitted his statements as to what took place in the solicitor's office, because the defendant was present. She would have been present if she participated as alleged, and therefore the evidence was admissible: even to the extent of what took place in the other room, a man having, as he says, called him out of the room, and there helped himself to part of the proceeds: and even to the extent of introduc- ing the story of the promissory notes. admission of evidence is one thing, deducing But from it the inference that the defendant, though present, participated in, or knew what was going forward is quite another thing. I think I was right in admitting the evidence for what it was worth: and I am now of opinion that it proves nothing. I cannot do otherwise than accept the statement that the money was handed over in full, and with no promis sory notes surreptitiously introduced into the bundle, in the presence of the solicitor, that it was counted by Li Leung, who said it was allright. What other evidence is there or facts from which I might infer what I have been asked to infer ? the haste with which the mortgage was put through: that is entirely the affair of the solicitor, and
There was such a false representation by the am not going to plaintiff in this case that he was of full age, find him mixed up in the frand-the high rate and I have no doubt that it was acted on by the to interest: well that is usury: and usury is defendant. I have therefore to deal only with usary and nothing else, but this was not argued. those cases in which the effect of a false repre- I shall have something to say presently as to sentation has been considered. the examination of the deeds, but this has no
have read the bearing on this part of the case.
very long judgment in "Stikeman v. Dawson," Then there and the kernel of it lies in this sentence. is the subsequent conduct of the defendant's "The notion of charging a man in equity after husband in exerting improper influence on Li his majority, upon a purchase or sale or contract Leung to discontinue the action. I cannot made during his minority merely because with- however much I disapprove of it, give it such aout any false assertion by him, the other party retroactive effect as I am asked to.
believed that he was not a minor, believing so
bankruptcy after the infant has come of full It has been decided that in a subsequent
age, the person who has been defrauded may the fraud. For reasons which he explained prove for the equitable liability resulting from the M. R. said he did not understand how these decisions came ab at, but he expressly said he did not wish to be taken to be over- ruling them. Therefore he agreed with the principle on which they were based.
The only other principle established in the case is that the representation of fall age is not to be inferred from the mere fact of trading, which is germane to the present enquiry in the fact that it emphasizes the importance in law of the representation-"If that were not so it would destroy the whole law to infants.' on the subject and the protection afforded by it
The action in the "Liverpool Association v. Fairhurst " was for a tort against a husband and wife in respect of a false and fraudulent representation by the wife that she was a feme The same principle was therefore involved sole at the time of signing a promissory note.
as in the case of an setion for tort in similar circumstances against an infant-the case of
Johnson v. Pie."
£6
These cases are part of the law of torta, as to which the law is briefly this: infants are liable for torts generally, but they are not liable for fraud inducing contracts. 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 England would be ruined" (Manby v. Scott, them, for in this way all the infants in I sid. at p. 129). Nor in an action for deceit or fraudulent misrepresentation where the fraud as to being of full age had induced the contract (Barllett v. Wells, 1 B. & 8, 836).
But this is an entirely distinct branch of the law and has no connexion with actions such jurisdiction of the Court, except with regard as the present which are based on the quitable to that sentence which have already referred every contract" and it may be that this to in "Johnson v. Pia" such affirmations are in reason should extend to this class of cases, because, if the claim based on were not to prevail, the law for protecting in- infancy fants would be swept precisely this consideration which was present to away. But W&S the minds of the Lords Justices in "Nelson v. Stocker." There would hardly be a case, they said, in which the plea of infancy would be of any avail, unless, not that all the contracts they enter into are set aside, and they be given redress- but unless the law as to their privilege be broken into only upon substantial and sufficient grounds, And the authorities are to the effect that where there has been a false representation by the infant as to his age and the person has honestly and bona fide believed the representation and