The defendant, while a minor, having stolen money and other property of the intestate, which he converted into money, settled with him for the sums thus tortiously obtained, by giving his promissory note therefor.
This action is for the moneys stolen, and for the note given on settlement of the same.
The note given by the defendant, when a minor, has not been ratified. The note of an infant, given on the adjustment of an account against him, is voidable. It is equally voidable, though given on a settlement for damages arising from his torts. The defendant, having avoided his note by the plea of infancy, the plaintiff is remitted to his original cause of action, as existing before the settlement by the defendant.
It is well settled that an infant is liable in the appropriate foi’m of action for his torts. He would, therefore, be held in an action of trover for money stolen.
Is an infant liable on assumpsit for money stolen, or for the proceeds of stolen property when converted into money ? The thief of full age is so liable. The owner of property stolen, and converted into money by the thief, may maintain assumpsit against him for money had and received. Howe v. Clancey, 53 Maine, 130; B. & W. R. R. Co. v. Dana, 1 Gray, 83. The reasons upon which these decisions rest apply equally to the minor as to the adult. If the minor is liable for his torts, it is immaterial to him in what form of action recompense is sought. If for the purposes of justice the tort may be waived in the case of the adult, and assumpsit maintained, it can, to accomplish the same great purpose, be equally well waived as to the minor. It would be a reproach to the law, if a minor, when arrived to years of manhood, were to be allowed to escape from the payment of what is due, by the plea that he had stolen the money demanded of him when under age. In Walker *257v. Davis, 1 Gray, 506, Thomas, J., says, “ The defendant obtained the possession of her (the cow), by fraud, a fraud to which infancy would constitute'no defense. Supposing no contract to have been made, the plaintiff then had the election to bring his action for the tort, or, as the cow had been sold before the note became due, to waive the tort and bring assumpsit.” In Towne v. Willey, 23 Verm. 359, referring to the liability of infants for torts, Redfield, J., in delivering the opinion of the court, says: “ In all the cases, then, upon this subject, it will be found that the courts profess to hold infants liable for positive, substantial torts, but not for violations of contracts merely, although by construction the party claiming redress may be allowed, by the general rules of pleading, to declare in tort or contract at his election.” The precise question here presented arose in Elwell v. Martin, 32 Verm. 217, and the court there held that the defendant was liable in assumpsit for money tortiously taken by him during liis infancy.
The plaintiff proves a demand on 30th Dec., 1847, from which time the defendant is liable to pay interest.
Judgment for the plaintiff for $400, and interest from Dee. SO, 1847.
Cutting, Kent, Dickerson, Barrows, and Tapley, JJ., concurred.