There was no dispute that after the car had come into the hands of the New York, New Haven, and Hartford Railroad, and before it had reached the place of accident, it had passed a point at which the cars were inspected. After that point, if not before, we are of opinion that the defendant's responsibility for the defect in the car was at an end.

There is more obscurity than there ought to be, perhaps, upon the limits of liability in general. The fact that the damage complained of would not have happened but for the intervening negligence of a third person has not always been held a bar, although negligent conduct, so far as it is a tort, is unlawful in as full a sense as malicious conduct, and although ordinarily even a wrongdoer would not be bound to anticipate a willful wrong by a third person: See Elmer v. Locke, 135 Mass. 575, 576, and cases cited in Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 48, 4 Am. St. Rep. 279; Engelhart v. Farrant, [1897] 1 Q. B. 240. Compare Hayes v. Hyde Park, 153 Mass. 514-516. But when a person is to be charged because of the construction or ownership of an object which causes damage by some defect, commonly the liability is held to end when the control of the object is changed.

Thus the case of Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 4 Am. St. Rep. 279, just cited, shows that the mere ownership of a house so constructed that its roof would throw snow into the street, and therefore threatening danger as it is without more, whenever snow shall fall, is not enough to impose liability when the control of it has been given up to a lessee who, if he does his duty, will keep it safe. In the case at bar the car did not threaten harm to anyone, unless it was used in a particular way. Whether it should be used in a dangerous way or not depended, not upon the defendant, but upon another road. Even assuming that the car had come straight from the defendant at Harlem river, the defendant did no unlawful act in handing it over. Whatever may be said as to the 512 responsibility for a car dispatched over a connecting road before there has been a reasonable chance to inspect it, after the connecting road has had the chance to inspect the car and has full control over it, the owner's responsibility for a defect which is not secret ceases: See Sawyer v. Minneapolis etc. Ry. Co., 38 Minn. 103, 8 Am. St. Rep. 648; Wright v. Delaware etc. Canal Co., 40 Hun, 343; Mackin v. Boston etc. R. R. Co., 135 Mass. 201, 206, 46 Am. Rep. 456.

Upon the same principle that commonly when a new control comes in the former responsibility is at an end, a vendor who makes no representation is not liable to a remote purchaser of the article sold, for damage done by defects in it: Davidson v. Nichols, 11 Allen, 514, 518; Losee v. Clute, 51 N. Y. 494, 10 Am. Rep. 638; Curtin v. Somerset, 140 Pa. St. 70, 23 Am. St. Rep. 220; Necker v. Harvey, 49 Mich. 517, 519. An extreme case is Collis v. Selden, L. R. 3 Com. P. 495.

It is recognized in Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 4 Am. St. Rep. 279, that the rule is different when the use from which the damage ensued plainly was contemplated by the lease: Jackman v. Arlington Mills, 137 Mass. 277; Harris v. James, L. J. 45 Q. B. 545. See Devlin v. Smith, 89 N. Y. 470, 42 Am. Rep. 311. In Heaven v. Pender, 11 Q. B. 503, 515, it was considered that the use not only was contemplated but was invited: See Blakemore v. Bristol etc. Ry. Co., 8 El. & B. 1035, 1052, 1053. But contemplation means a good deal more than simply recognizing a probability. In Sowell v. Champion, 2 Nev. & P. 627, 634, it was held that an act generally lawful, such as placing a writ for execution in the hands of an officer, was not made unlawful by a full persuasion or even knowledge that the officer was likely to execute it in a place which might and did turn out to be out of his jurisdiction. The officer had an unfettered right of decision, and it was his lookout to see that he kept within the law: See Kahl v. Love, 37 N. J. L. 5; Savings Bank v. Ward, 100 U. S. 195. So here as to the car. There has been a suggestion in some cases of a more severe rule in the case of very dangerous agencies: Loop v. Litchfield, 42 N. Y. 351, 1 Am. Rep. 543; Goodlander Mill Co. v. Standard Oil Co., 63 Fed. Rep. 400. But whether there be any such qualifications or not the present case is not within it. If it had appeared that the use made of the car was contemplated by the defendant, it still would have been a use subject to inspection, and of a car with no secret defect.

A RAILROAD USING THE CARS OF A CONNECTING LINE is liable to the same extent as if they were its own, if such cars, when received and used, are in a condition dangerous to its employés: Reynolds v. Boston etc. R. R. Co., 64 Vt. 66, 33 Am. St. Rep. 908; Ruppel v. Allegheny Valley Ry., 167 Pa. St. 166, 46 Am. St. Rep. 666. If a railroad company transfers a defective car to another company, without making a proper inspection thereof, either or both companies may be held liable for an injury resulting from the condition of such car: Pennsylvania R. R. Co. v. Snyder, 55 Ohio St. 342, 60 Am. St. Rep. 700.

SLAYTON v. BARRY.

[175 Massachusetts, 513.]

INFANTS TORT LIABILITY-FRAUD INDUCING CONTRACT.-An infant cannot be held liable for fraud or conversion, where to maintain the action the plaintiff must show that there was a contract, which was part and parcel of the fraudulent transaction.

J. F. Wiggin, for the plaintiff.

W. F. Kimball, for the defendant.

313 MORTON, J. The declaration in this case is in two counts. The first count alleges in substance that the defendant, intending to defraud the plaintiff, deceitfully and fraudulently represented to him that he was of full age, and thereby induced the plaintiff 514 to sell and deliver to him the goods described, and though often requested had refused to pay for or return the goods but had delivered them to persons unknown to the plaintiff. The second count is in tort for the conversion of the goods described in the first count. The case is here on exceptions to the refusal of the presiding judge to give certain instructions requested by the plaintiff, and to his ruling ordering a verdict for the defendant. The question is whether the plaintiff can maintain his action. He could not bring an action of contract, and so has brought an action of tort. The precise question presented has never been passed upon by this court: Merriam v. Cunningham, 11 Cush. 40, 43. In other jurisdictions it has been decided differently by different courts. We think that the weight of authority is against the right to maintain the action: Johnson v. Pie, 1 Lev. 169; 1 Sid. 258; 1 Keb. 905; Grove v. Nevill, 1 Keb. 778; Jennings v. Rundall, 8 Term Rep. 335; Green v. Greenbank, 2 Marsh. 485; Price v. Hewett, 8 Ex. 146; Wright v. Leonard, 11 Com. B., N. S., 258; De Roo v. Foster, 12 Com. B., N. S., 272; Gilson v. Spear, 38 Vt. 311, 88 Am. Dec. 659; Nash v. Jewett, 61 Vt. 501, 15 Am. St. Rep. 931; Ferguson v. Bobo, 54 Miss. 121; Brown v. Dunham, 1 Root, 272; Geer v. Hovy, 1 Root, 179; Wilt v. Welsh, 6 Watts, 9; Burns v. Hill, 19 Ga. 22; Kilgore v. Jordan, 17 Tex. 341; Benjamin on Sales, 6th ed., sec. 23; Cooley on Torts, 2d ed., 126; Addison on Torts, Wood's ed., sec. 1314. See contra, Fitts v. Hall, 9 N. H. 441; Eaton v. Hill, 50 N. H. 235, 9 Am. Rep. 189; Hall v. Butterfield, 59 N. H.

354, 47 Am. Rep. 209; Rice v. Boyer, 108 Ind. 472, 58 Am. Rep. 53; Wallace v. Morss, 5 Hill, 391.

The general rule is, of course, that infants are liable for their 515 torts: Sikes v. Johnson, 16 Mass. 389; Homer v. Thwing, 3 Pick. 492; Shaw v. Coffin, 58 Me. 254, 4 Am. Rep. 290; Vasse v. Smith, 6 Cranch, 226. But the rule is not an unlimited one, but is to be applied with due regard to the other equally well-settled rule that, with certain exceptions, they are not liable on their contracts; and the dominant consideration is not that of liability for their torts, but of protection from their contracts. The true rule seems to us to be as stated in Liverpool Adelphi Loan Assn. v. Fairhurst, 9 Ex. 422, 429, where it was sought to hold a married woman for a fraudulent misrepresentation, namely, if the fraud "is directly connected with the contract. . . . and is the means of effecting it, and parcel of the same transaction," then the infant will not be liable in tort. The rule is stated in 2 Kent's Commentaries, 241, as follows: "The fraudulent act, to charge him [the infant], must be wholly tortious; and a matter arising ex contractu, though infected with fraud, cannot be changed into a tort in order to charge the infant in trover or case by a change in the form of the action." In the present case it seems to us that the fraud on which the plaintiff relies was part and parcel of the contract and directly connected with it. The plaintiff cannot maintain his action without showing that there was a contract, which he was induced to enter into by the defendant's fraudulent representations in regard to his capacity to contract, and that pursuant to that contract there was a sale and delivery of the goods. in question. Whether as an original proposition it would be better if the rule were as laid down in Fitts v. Hall, 9 N. H. 441, and Hall v. Butterfield, 59 N. H. 354, 47 Am. Rep. 209, in New Hampshire, and Rice v. Boyer, 108 Ind. 472, 58 Am. Rep. 53, in Indiana, we need not consider. The plaintiff relies on Homer v. Thwing, 3 Pick. 492, Badger v. Phinney, 15 Mass. 359, 8 Am. Dec. 105, and Walker v. Davis, 1 Gray, 506. In Walker v. Davis, 1 Gray, 506, there was no completed contract and the title did not pass. The sale of the cow by the defendant operated, therefore, clearly as a conversion. Badger v. Phinney, 15 Mass. 359, 8 Am. Dec. 105, was an action of replevin, and it was held that the property had not passed, or if it had that it had revested in the plaintiff in consequence of the defendant's fraud. The plaintiff maintained his action independently of the contract. In Homer v. Thwing, 3 Pick. 492,

the tort was only incidentally connected with the contract of hiring.

We think that the exceptions should be overruled.
So ordered.

AN INFANT IS LIABLE FOR HIS TORTS, notwithstanding they may have arisen out of, or in some way may have been connected with, a contract: Churchill v. White, 58 Neb. 22, 76 Am. St. Rep. 64. See, further, the monographic note to Craig v. Van Bebber, 18 Am. St. Rep. 720-724, on torts of infants connected with contracts.

ROSENTHAL v. NOVE.

[175 Massachusetts, 559.]

BANKRUPTCY PROCEEDINGS-EFFECT ON PENDING SUIT-SPECIAL JUDGMENT.-A court in which a suit against a bankrupt is pending is not, after the adjudication of bankruptcy, bound to stay further proceedings therein, though it may do so if justice so requires: the action is not absolutely barred, and the court has power to proceed to judgment. Hence, if after verdict and before judgment, the defendants are adjudicated bankrupts under the United States bankruptcy act, and thereafter they file a sug gestion of that fact and move that all proceedings be stayed, the court has power to deny such motion and to direct the entry of a special judgment to enable the plaintiff to proceed against the sureties upon a bond to dissolve an attachment, given more than four months before the bankruptcy.

BANKRUPTCY COURT - EXAMINING DEFENDANT'S LIABILITY IN, AFTER VERDICT.-If, before the commencement of bankruptcy proceedings, in which the defendants are adjudged bankrupts, the right of a plaintiff to recover of the defendants a definite amount of damages has been fixed by the verdict of a jury, such right and liability cannot be re-examined in the bankruptcy court.

Tort for personal injuries.

W. S. B. Hopkins and R. Hoar, for the defendants.

J. R. Thayer and A. P. Rugg, for the plaintiff.

859 BARKER, J. After verdict and before judgment the defendants were adjudicated bankrupts, and thereafter they filed a suggestion of that fact and moved that all proceedings be stayed. This motion was denied and a special judgment entered to enable the plaintiff to proceed against the sureties upon a bond, given more than four months before the bankruptcy, to dissolve an attachment. The exceptions raise the question