though they be still in the infant's possession. His privilege is said, in such case, to be his defense: Metc. on Con. 47. The learned author admits that this is manifestly inequitable, and that the reasoning by which it is sustained is technical, but he considers that the principles of the law of infancy, as well as the authorities, lead to this result. The only cases cited in support of this view are Cresinger v. Lessee of Welch, 15 Ohio, 156; Pitcher v. Laycock, 7 Ind. 398; and Gibson v. Soper, 6 Gray, 279, none of which seems to us to be authorities for the position here assumed. Judge Reeve, in his work on the Domestic Relations, page 244, strongly combats this doctrine, which he holds to be "wholly destitute of principle, and not supported by the authorities." And in 1 Pars. on Con. 319, that learned author says on this subject: “But it seems unreasonable and unjust to say that the infant may refuse to pay for the goods, without affecting the validity of the sale to him. It should seem enough if the infant has the power of rescinding the sale. This is an adequate protection; and if the goods are out of his possession when the sale is rescinded, the seller may be wholly without remedy. But when the sale is rescinded, the property in the goods should revest in the seller, so far, at least, that if he finds them in the possession of the infant, he may peaceably retake them as his own. And if he demands them, the refusal of the infant to deliver them would seem to be a tort wholly independent of the contract, on which trover might be maintained.”. The views here presented seem eminently just and are, we believe, supported by the greater weight of authority: Badger v. Phinney, 8 Am. Dec. 105; Strain v. Wright, 7 Ga. 568; Jefford's Adm'r v. Ringgold, 6 Ala. 548; Carpenter v. Carpenter, 45 Ind. 142; Goulding v. Davidson, 26 N. Y. 608; Walker v. Davis, 1 Gray, 506; Chandler v. Simmons, 97 Mass. 514; 2 Kent's Com. 241. An infant is held liable for goods intrusted to his care and unlawfully converted by him: Story on Bail., sec. 50; 2 Kent's Com. 241; Baxter v. Bush, 29 Vt. 465. He is liable in detinue for goods delivered to him for a certain purpose which has not been performed: Mills v. Graham, 1 Bos. & Pul. (N. R.) 140. See also Vasse v. Smith, 6 Cranch, 226, where it was decided that, although a shipowner could not sue his supercargo for breach of instructions, he might recover in trover for the goods intrusted to him. And he is liable in assumpsit for money had and received, for money tortiously taken by him, as where he steals or embezzles it: Schoul. Dom. Rel. 566; Elwell v. Martin, 3 Vt. 217; Bristow v. Eastman, 1 Esp. 172; Shaw v. Coffin, 58 Me. 254; S. C., 4 Am. Rep. 290. An infant who fraudulently obtains goods on credit, with an intention not to pay for them, is liable in tort to the party injured: Wallace v. Morss, 5 Hill, 391.

In New Hampshire the rule seems to be, that if false representations are made by an infant at the time of the making of his contract, he may set up infancy as a defense; but if the tort is subsequent to the contract, and not a mere breach of it, but a distinct, willful, and positive wrong of itself, then, though it may be connected with a contract, the infant is liable; Prescott v. Norris, 32 N. H. 103; Fitts v. Hall, 9 Id. 441. But the distinction drawn between the effect of false representations made at the time of the contract, and those made subsequently does not seem to be accepted by the courts elsewhere.

INFANT'S FALSE REPRESENTATIONS AS TO HIS AGE.-Mr. Benjamin, in his work on sales, sec. 22, says: "An action at law will not lie against an infant tor fraudulently representing himself of full age, and thereby inducing the plaintiff to contract with him." This is undoubtedly the rule established in the English courts: Johnson v. Pye, 1 Lev. 169; Price v. Hewett, 8 Exch. 146; Liverpool Adelphi Loan Ass'n v. Fairhurst, 9 Id. 430; Bartlett v. Wells, 1

Best & Sm. 836. There is, in this country, a decided diversity of opinion on this question. The following cases approve the English rule stated above: Geer v. Honey, 1 Root, 179; Curtin v. Patton, 11 Serg. & R. 309; Homer v. Thring, 3 Pick. 494. See also Cooley on Torts, 110; Schoul. Dom. Rel. 568. But in Fitts v. Hall, 9 N. H. 441, it was decided that an infant was answerable for a fraudulent representation that he was of age, where, by means of such representation, he induced a person to enter into a contract with him, which he afterwards avoided on the ground of infancy. And in Eckstein v. Frank, 1 Daly, 334, it was decided that a minor who obtains property upon representations that he is of full age, is liable in an action of tort, either to recover the property back or to recover damages upon the ground that it was wrongfully obtained. See to the same effect, Schunemann v. Paradise, 46 How. Pr. 426; Tyler on Inf. 182; 1 Pars. Con. 317, note; 1 Story Eq., sec. 385; Bing. Inf. 113; Cooley on Torts, 110, note 3; Schmitheimer v. Eiseman, 7 Bush, 298; Kilgore v. Jordan, 17 Tex. 341.

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.

BEACH V. PACKARD.

[10 VERMONT, 96.]

ACKNOWLEDGMEnt of Receipt of CONSIDERATION IN DEED may be varied or contradicted by parol proof that such consideration was not, in fact, paid. WITNESS, WHEN INCOMPETENT BY REASON OF INTEREST.-Where land is attached and afterwards conveyed to another by deed of warranty, the grantee in such deed is not a competent witness against the attaching creditor in the suit in which the attachment issued.

WHERE BILL OF EXCEPTIONS STATES THAT CERTAIN FACTS APPEARED, this court must take it, that these facts were undisputed or conceded by both parties.

ASSUMPSIT to recover the price of a piece of land conveyed by the plaintiff to the defendant. Plea, the general issue. On the trial the deed was offered in evidence. It was a warranty deed, and acknowledged the receipt of the consideration. The plaintiff also offered parol evidence tending to prove that the land had not been fully paid for. Defendant objected to the introduction of this evidence, but the court received it. Defendant then offered one N. S. Packard as a witness, to prove that the consideration had been paid. Plaintiff objected to the witness on the ground of his interest in the event of the suit. And, it appearing that the plaintiff's writ was served by attaching the land, and that subsequent to the service of the attachment, the defendant conveyed the land to the witness by deed of warranty, the court decided that the witness was interested, and rejected

that

his evidence The defendant then offered evidence to prove the deed in question did not convey all the land for which the defendant had agreed to pay seventy-five dollars, and that by the terms of the original contract the plaintiff was to maintain all the division fences. Plaintiff objected to this evidence, and the court rejected it because it had previously appeared that when the deed was offered by the plaintiff to the defendant, the latter objected because it did not conform to the contract, and that the parties then disagreed as to what the contract was, and the plaintiff put it to the defendant to accept or reject the deed, and the defendant thereupon accepted it. The court charged the jury that the acknowledgment in the deed of the receipt of the consideration money was prima facie evidence of its payment, and imposed upon the plaintiff the burden of proof to show that it had not been paid, but that the acknowledgment was not conclusive. The jury found for the plaintiff, and the defendant excepted to the decisions and charge of the court.

Maeck and Smalley, for the defendant.

A. G. Whittemore, for the plaintiff.

By Court, COLLAMER, J. Parol evidence can not be admitted to vary, contradict, add to, or control a deed or written contract. The deed of bargain and sale, between these parties, had for its object the conveyance of certain land; and the extent of the land conveyed, the parties thereto, the estate conveyed thereby, and the covenants attending it, could not be affected by parol proof; and even that part which relates to the consideration, or the payment thereof, could not be contradicted or varied, by parol, so as in any way to affect the purpose of the deed, that is, its operation as a conveyance. All this is well-settled law, and fully sustained by the authorities cited by the defendant's counsel. But the question still remains, when this acknowledgment of payment, under seal, comes collaterally in question, not for any purpose of affecting the conveyance of the lands, or raising any trust or interest therein, does any such rule of estoppel apply? The expressions from Sheppard's Touchstone, and a large part of the authorities, relied on by the defendant's counsel, are all in relation to the inadmissibility of the parol proof, as to the consideration, to affect the deed, and create thereby a resulting trust, or convert the conveyance into a covenant to stand seised, to the use of the grantor.

It has long been holden in England, and in this country, and

even in this state, that receipts may be varied or contradicted by parol, as they are not contracts. If it may be so done as to a written receipt, we do not see why the same may not, as consistently, be done with one under seal. The evidence does not vary, control, or affect the contract as a conveyance, and it was only so far as the consideration was essential to give effect to the deed, as an absolute conveyance, in fee, that what is said on that subject is any part of the deed. For all that purpose, it remains unaffected when the evidence is offered, only to prove that the consideration money has not actually passed to the grantor, merely to enable him to recover the same.

When a man conveys land, he generally receives his pay, in part at least, in promises or assurances. He executes and delivers the deed, and so far as to induce him to make the conveyance, he has "received the pay, to his full satisfaction;" and he must abide by his conveyance, whether he ever actually realizes the money on such assurances or not. But when he attempts to enforce such promises, whether they be by writing, such as notes of hand, or by parol, as in the present case, to hold that the acknowledgment of payment in his deed, is conclusive against him, and settles, not only that he was satisfied to make the conveyance, but that he received his pay; and if, in promises or contracts, that they too must have been paid, is giving to this acknowledgment an artificial effect, far beyond its design. This parol evidence was, therefore, correctly admitted. This view of the case is fully sustained by the cases of Bullard v. Briggs, 7 Pick. 537 [19 Am. Dec. 292]; Wilkinson v. Scott, 17 Mass. 249; Shephard v. Little, 14 Johns. 210, which we think not overbalanced by the case of Steel v. Adams, 1 Greenl. 1.

In relation to the rejection of Packard, as a witness, that point is fully sustained by the case of Lapham v. Curtis, 5 Vt. 381 [26 Am. Dec. 310].

The receipt in the deed, like any other receipt, changes the burden of proof, and requires the grantor, not only to prove the sale of the land, but to prove the same was still unpaid for; and so the judge correctly charged the jury in this case. It is complained, that he did not give the jury more particular instructions as to the weight of the evidence, and how explicit or express it should be. That is mere matter of judicial discretion, the neglect or performance of which can not be assigned for

error.

The only question which remains, relates to the rejection of the testimony offered by the defendant. It is not questioned

that this testimony was rightly rejected, provided the facts were settled on which the rejection was made; but it is insisted that the court was not competent to settle these facts. If those facts, or the evidence to support them, were disputed, the evidence of the defendant should have been admitted, and the whole then put, under proper instructions, to the jury. If the court refused so to do, but rejected the defendant's testimony, the bill of exceptions should state, not that these preliminary facts appeared, but merely that there was testimony tending to prove them. In this case, the record states, that such facts appeared. Now, we must take this as here stated, that is, that of these facts there was no dispute, or that it was so conceded. If so, then the course taken by the court was unexceptionable. Judgment affirmed.

RECITAL IN DEEd of Payment OF CONSIDERATION IN DEED is only prima facie evidence of payment, and may be varied by parol proof: Lazell v. Lazell, 12 Vt. 450; Ayres v. McConnel, 15 Ill. 232; White v. Miller, 22 Vt. 384; Harwood v. Harwood's estate, Id. 510; Holbrook v. Holbrook, 30 Id. 435; Harrison v. Castner, 11 Ohio St. 346; Morrall v. Waterson, 7 Kan. 206; Vaugine v. Taylor, 18 Ark. 78; Harwell v. Fitts, 20 Ga. 725; all citing the principal case. See also McCrea v. Purmort, 30 Am. Dec. 103, and note 116, where this subject is fully discussed

BANK OF ST. ALBANS V. FARMERS' AND MECHANICS'

BANK.

[10 VERMONT, 141.]

BANKE WHO RECEIVES FORGED CHECK IN PAYMENT and keeps it for two months without giving to the bona fide holder from whom he received it notice that it was forged, must bear the loss.

ASSUMPSIT for money had and received, and for money lent. Plea, non assumpsit. On the trial the plaintiffs gave in evidence a check dated February 18, 1836, drawn on them, and in favor of James Wilson, or bearer, for seven hundred dollars, purporting to have been signed by N. W. Kingman, and indorsed: "Pay to T. Hockley, cash'r, or order. James Wilson." "Credit Farmers' and Mechanics' Bank. T. Hockley, cash'r." It appeared from the testimony of the teller of the bank of St. Albans, that this check was received at the bank on the twentythird or twenty-fourth of February, 1836, in a letter from the cashier of the defendant; that an open account then existed between the two banks named, and that the amount of the check was, on its receipt, credited to the defendants on the plaintiff's