
    
      Robert W. Norris vs. John Vance.
    
    To shew a confirmation of an infant's contract, there must he, after he attains maturity, and with a full knowledge of his rights, one of these three things, viz : 1. Acquiescence, from which assent may be fairly inferred. 2. An adequate benefit enjoyed, which has grown directly or indirectly out of the contract 3. Some direct act of express assent.
    If an infant, fraudulently representing himself to be of age, sell, or permit another to sell, his goods, he may, nevertheless, disaffirm the contract, and bring trover against the purchaser for the conversion of the goods.
    
      Before Waedlaw, J. at Abbeville, Spring Term, 1846.
    The report of his Honor, the presiding Judge, is as follows :
    “ This was an action of trover, brought 26th September, 1843, to recover damages for the conversion of a negro man, Bart.
    It appeared clearly, that the plaintiff was born 15th May, 1822 ; that Bart was, in-, 1824, given to him by his grandfather, Robert Robertson ; that on 3d December, 1842, Bart was sold to the defendant for $470, and the price received by Hinson Norris, father of the plaintiff, who made the sale ; that the bill of sale to the defendant, warranting title and soundness, was signed by the plaintiff and his father also ; and that they both then represented to the defendant that the plaintiff was of age.
    Some evidence was offered concerning a bill of sale made by Hinson Norris, in fraud of his other creditors, to the plaintiff and others, by which an attempt to save from the wreck of H. Norris’s property, something for the plaintiff, in satisfaction of some indebtedness by the father to him, was made ; but no assent to this proceeding was giVen by the plaintiff after he became of age, and no advantage resulted to him from it.
    On 7th April, 1843, whilst Hinson Norris was confined in jail at Laurens, under ca. sa. in the absence of plaintiff, and without his request or knowledge, H. Norris made a note and confession of judgment thereupon to plaintiff, of which, a few days afterwards, he informed the plaintiff. The note was as follows: “Due R. J. Norris $486, with interest from 3d December, 1842, for value in a negro belonging to him, sold by me to John Vance. H. Norris.” Upon the confession of judgment, a Ji. fa. was lodged at Laurens, 7th April, 1843, and the same fi. fa. without in-dorsements, was entered in the sheriff’s office at Abbeville, 10th April, 1845. The sheriff of Abbeville has in his hands $680, which has been raised from the sale of a remnant of H. Norris’ property, and which he has not applied, from uncertainty as to the condition of various old executions against H. Norris. How the fi.fa. (R. J. N. v. H. N.) came to the office at Abbeville, the sheriff’s clerk, who was examined, did not know, and there was no other evidence on the subject.
    The defendant.contended,
    1. That there was no gift proved,
    
      2. That plaintiff was of age at the sale to defendant.
    3. That the fraud of the plaintiff’s father, in which the plaintiff had joined or connived, would prevent the recovery.
    4. That there had been a confirmation of the sale by the plaintiff’s accepting, since he came to full age, the security which his father had provided for reimbursement to him of the price of the negro, as appeared from they?, fa. having been transferred to Abbeville, which could only have been done by the plaintiff or his agent.
    I submitted the two first questions to the jury, entertaining, myself, no doubt about them.
    I decided, for reasons not now necessary to be explained, that the fraud alleged, if it had taken place, would not defeat the plaintiff’s recovery here.
    I submitted the fourth question as one of fact — saying that if the plaintiff had, after he became of age, with a full knowledge of his rights, agreed to look to his father, the sale was thereby confirmed ; and it was for the jury to inquire whether the fi. fa. had been transferred to Ab-beville through the plaintiff’s instrumentality, and whether in this, his agreement to look to his father could be found. The burden of shewing confirmation, I said, was upon the defendant.
    The jury found for the defendant.”
    The plaintiff appealed, and now moved this court for a new trial, on the following grounds :
    1st. Because the evidence was clear, that the plaintiff was a minor until the 15th day of May, 1843; that the bill of sale under which the defendant claimed, was executed before that time — and every act of confirmation relied upon anterior to that date.
    2d. Because there was no evidence that the plaintiff ever accepted in satisfaction of the price of Bart, either the Georgia bill of sale or the confession of judgment, even whilst an infant, much less after he was of full age.
    3d. Because the evidence was clear, that the plaintiff never received one cent of benefit, either under the bill of sale of Bart, the Georgia bill of sale, or the confession of judgment.
    4th. Because his Honor charged the jury, that they might find confirmation in the circumstance, that the execution in the case of Robert W. Norris against Hinson Norris, was found in the sheriff’s office of Abbeville district — upon the assumption that the plaintiff lodged it there after he was of full age, when there was no evidence that he ever saw the execution or controlled it in any way.
    5th. Because the verdict was contrary to the law and evidence.
    McGowen, for the motion.
    Jones, contra.
   Curia, per

Wardlaw, J.

The gift to the plaintiff, and his minority at the time of the sale to the defendant, hav*‘ ing been clearly proved, the jury, under the instructions given to them, must have found that the contract of sale had been confirmed by the plaintiff after he came to full age. This finding seems to this court to have been without evidence. It must rest entirely on the evidence concerning the execution of R. W. Norris vs. Hinson Norris, for, concerning the bill of sale, all the acts of the plaintiff took place before he was of age. The execution came somehow from Laurens to Abbeville, more than two years after this suit was commenced — but there was no direct evidence that the plaintiff ever intermeddled with it; and that he ever received any benefit from it, was disproved. It was urged that the lodgment of it in the office of Abbe-ville, of itself, raised the presumption that the plaintiff must have transferred it from Laurens, and agreed to look to it for his indemnity. The presumption, without other* evidence, is equally strong, that one of the sheriffs, of his own head, did all that was done about the execution ; and-that, with the evidence that H. Norris was insolvent, and§ that the plaintiff was then prosecuting this suit, seems entirely to rebut the presumption urged by the defendant. But giving full force to the defendant’s presumption, it would be only proof that, long after the commencement of the suit, the plaintiff had, in confirmation of his contract, done an act by which his right of action was defeated ; that is, that the plaintiff, who by bringing his suit had dis-affirmed and made void a voidable sale which was made during his minority, had, after the disaffirmance, confirmed the sale. Such matter might, like*any sale made by the plaintiff of the converted chattel, during the penden-cy of his action of trover, mitigate the damages; but (if it could avail at all, of itself, to bar the right of action,) could, for that purpose, be shewn only under a plea of puis darrein continuance, or a plea to the further maintenance of the suit. But if the matter be urged, not as constituting of itself, a bar, but as evidence, arising from acts since the commencement of the suit, of a confirmation before the commencement, we must, to give it effect, be led to the" conclusion that Hhe plaintiff not only transferred the [{execution, but between the time he became of age and the I {commencement of his suit, agreed to accept the execution in place of his negro. This would be to establish one fact by violent presumption, and from this fact to deduce another, by a presumption more violent. According to the decision in the case of Norris vs. Wait, (2 Rich. 148) and other authorities, this court is satisfied, that to shew a confirmation of am.infant’s contract, there must be, after he attains maturity, and with a full knowledge of his rights, one of these three things, viz: 1, acquiescence, from which assent may be fairly inferred; 2, an adequate benefit enjoyed, which has grown directly or indirectly out of the contract; 3, some direct act of express assent. The evidence in this case seems wholly deficient under either of these heads.

The infant’s fraud has been strongly pressed upon the \court. His conduct seems to have amounted to at least a Ifconnivance at his father’s fraud ; but there is no evidence /that gain thence resulted to him. An infant is liable for jhis torts — but his tort neither makes valid his void con-i tract, nor takes away his right of disaffirming avoidable one. If an infant, representing himself to be of age, give a bond for money borrowed, the plea of infancy will avail against the bond: upon proof that the money was in his hands after he was of age, the implied contract to repay might be confirmed, so that such money might be recovered from him. If an infant, under fraudulent representations of his age, take up goods on credit, he may, notwithstanding the fraud^disaffirm action for the price of the the contract, and defeat an price ol tne goods. Possession of the goods after he was of age, might establish a confirmation of the contract, or after it was avoided, subject him to answer in trover for their value. So if an infant, fraudulently representing his age, sell his goods and waste thm'mo-ney, he may, after he is of age, disaffirm the contract and recover his goods ; possession of the money after he was of age might be proof of confirmation, or might, after the contract was avoided, subject him to an action for that money. For damages occasioned bjr his deceit in^ny of these cases, there is authority (not, however, úncontradic-ted,) for,saying that the infant would be liable ;_but no authority for saying that, at law, this liability confirms his contract, so as to form a replication to his plea if he be defendant, or to constitute a plea to his action if he be plaintiff. A court of equity, where an infant is compelled to resort to it, may require that he shall do equity before he shall have relief; but the equity principles cannot be safely applied to the practice and remedies of the law courts. The disability of an infant would be a feeble protection, if it could be altogether removed by proof of misrepresentations made by him at a time when he is not liable, generally for presumed want of discretion to protect his interests. For the injury w h i c h the deceit — b-a-s-o.cc a - sioned, let the infant answer in a proper action ; let the circumstances "of the deceit be considered in weighing the evidence of confirmation ; but we cannot hold that damages occasioned by deceit, shall be set off in an action of trover, or that fraud takes away the disability of infancy concerning contracts, or that when there is no evidence of confirmation, the evidence shall be supplied by presumptions, because there was unfairness.

The motion for new trial is granted.

O’Neall, Evans and Frost, JJ. concurred.

Richardson, J.

dissenting. I object to a new trial of this action to recover the price of the negro, when it has been already paid. It is unjust, and the verdict for the defendant may be well supported both by law and equity. First, because the jury had evidence, from the declaration of both the plaintiff and his father, that he, the plaintiff, was of full age when the negro was sold to the defendant by the plaintiff and his father, for a full price paid; and because it is probable the jury gave the verdict on that ground, inasmuch as the fraud of the plaintiff was decided at the trial not to constitute a legal defence. Judicially speaking, the jury must have decided upon the ground of lawful age; and that is sufficient to support so just a ■verdict. I object, secondly, because the fraud of the plaintiff was perpetrated when the plaintiff was, in any view, of mature age — he was scarcely under, if not over, twenty-one years of age. And his wilful fraud upon the defendant was committed in order to induce him to buy the negro. And in that case, the law is, that where one man induces another, by a wilful misrepresentation, to enter into a contract, the fraudulent party cannot plead that his own perversion of the truth was itself false, in order to set aside the contract, thus induced by his own misconduct. He is estopped in law. It is like a man who represents a woman to be his wife, and thereby gives her a credit, upon his own responsibility. Such a man cannot get rid of his own liability, by proving, although the very truth, that she was not his wife — he is estopped by his own fraud. And any man of mature age, (doli capaz) although something short of twenty-one years, is, in like manner, estopped by his own fraud — nominal, infancy cannot save him. As it has been expressed, “ the shield of legal infancy” must not be thus converted into a sword, to wound mankind at pleasure, and without responsibility. The fraudulent party must abide by his own election to cozen, and bear its recoil upon himself. In such a case, the questions are, was there a wilful fraud ? Was the supposed infant intellectually capable of the fraud? Did it induce the contract, without the fault of the opposite party? But in any view of this rule of preventive law, it confirms the ground of fact just taken, by affirming the verdict to be just — and this is a strict judicial view recognized again and again. The admission that the defendant might recover in equity, yields the question, because fraud is as cognizable at law as in equity, where there is no discovery required. In such a case, equity could relieve, only on the ground that the infant was divested of his privilege by his own moral fraud. Again, it has been argued that the defendant may recover the money back, when he shall have paid it twice. If so, the recovery by the plaintiff would not be res judicata, which means not to be opened to a second investigation; and the defendant would make for himself a new trial, which cannot be, in virtue of the same doctrine of res ad-judicata. But this supposition again yields the question : For if he can recover back, it must be on the ground of the fraud, which he now sets up as a defence. And if it cannot be good for a defence, a fortiori, it cannot be available for an action. It would be trifling with legal justice, to say, the defendant must be first made to pay, in order that he may be qualified to recover back the same money. Upon such inconsistency in law, see Judge Harper’s conclusive reasoning, in the case of Guphill vs. Is-bel, 2 Bail. 353. Once admit such action lay, now is the only time for justice, that is, before the money is taken from defendant; and the jury having said so, by their instinct of right judgment, I would not dissent from the verdict, upon so bare and technical and unrighteous an infancy. I would suppose any thing, says Lord Mansfield, after the verdict, in order to support justice against a hard action. But in the case before us, we have only to take the word of the father, with that of the plaintiff, for the fact of his full age, and to uphold the verdict — because it arrests the fraud, stops a hard action, and saves circuity. And thus fulfils the very end of law, moral equity. And the verdict does this upon sufficient evidence, which makes it legal, judicial and perfect.

ButleR, J. absent.  