Taylor v. Van Keuren , 54 How. Pr. 25 ( 1877 )

Westbrook, J.

The point which this motion presents is, can an infant, who makes false statements as to his property when buying goods other than necessaries, be made liable to arrest by bringing the action in fraud ?

The general proposition is not denied, that an infant is liable for torts, nor is it necessary to discuss the question, whether an infant is liable who falsely and fraudulently represents his age. Upon this authority conflicts. The question is, can he be made liable for such an alleged fraud as this case presents ?

When an arrest is ordered in an action brought for goods sold, on the ground that the sale was produced by a false statement, it must be such a statement which, if it had been true, the seller would have sustained no loss. In other words, the statement must injure.

Tested by this obvious rule, this, arrest cannot be upheld. The statement' wrought no injury. The contract of sale cannot, owing to the infancy, he enforced. If every word uttered had been true, the plaintiff could not have recovered. At the option of the defendant the contract could be avoided.

The motion must be granted, but under the circumstances the defendant should have no costs of motion.