W. Comer Petheram, C.J.
1. These facts, in my opinion, show beyond all question that the defendant was one of the four younger sons of Sumbo Nath, whose births were registered, and consequently that he must have been a minor when he signed the deed. But besides all this the plaint in the suit of 1879 was put in; that plaint was signed by Nursing Chunder Bose, the maternal grandfather of the defendant, a person who is since dead, and it is contended on behalf of the defendant that statements in it, as to the order in which Sumbo Nath's sons were born, and as to the dates of their births, are evidence under Section 32, Sub-section (5) of the Evidence Act, and that, if so, they are conclusive. It was contended on the part of the plaintiff on the authority of the English cases that, as the question at issue in this case did not relate to the existence of any relationship by blood, marriage, or adoption, the section did not apply, and the statements were excluded by the ordinary rules of evidence. I think that on this point the law in India under the Evidence Act is different from the law of England, and that the effect of the section is to make a statement, made by such a person, relating to the existence of such relationship, admissible to prove the facts contained in the statement on any issue, and that the plaint was admissible hereto prove the order in which the sons of Sumbo Nath were born, and their ages, and when admitted, it to my mind satisfactorily proves that the defendant was the son who was born on the 6tb June 1868.
2. The remaining questions are, whether the advance was obtained by a fraudulent misrepresentation by the defendant as to his age, and, if so, what is its effect on his liability? There can, I think, be no doubt that the advance was obtained by an elaborate and cleverly concocted fraud. The defendant applied to the plaintiff to make him an advance, which the plaintiff agreed to do if he were satisfied that the defendant was of age. The defendant assured him that he was, gave him the date of his birth, and referred him to Mr. Pittar, who, he said, had the documents necessary to prove the truth of his statements. The plaintiff' saw Mr. Pittar, who showed him some documents, and in effect told him that he was himself satisfied by them that the defendant was of age, and that the plaintiff might safely advance the money. The statement as to the defendant's age was untrue, and some at least of the documents must have been forgeries, and this the defendant must have known.
3. The fact is that the plaintiff was induced to part with his money by fraud to which the defendant was a party, and the question which now arises is whether such fraud prevents the defendant from successfully setting up the plea of infancy as a defence to the present action. In my opinion it does not. No case has been cited before us, nor are we aware of the existence of any, in which a person has been held personally liable to pay a debt contracted by him during his infancy, on the ground that he obtained the credit by fraudulent misrepresentations as to his age. The case which was most pressed upon us is that of Ex parte Unity Joint Stock Mutual Banking Association (3 De G. & J., 63). The head note correctly sums up the decision in that case as follows: Where an infant had obtained a loan, on a representation which he knew to be false that he was of age, held, that a proof for the loan was properly admitted in bankruptcy. The Lords Justices Knight Bruce and TURNER refused to expunge the proof, but except that they said that they were bound by authority they gave no reasons for their decision.
4. This was a proof in bankruptcy, and I am not aware of any case in which an action at law or suit in equity against the borrower has been held to be maintainable. On the other hand, there are numerous cases by which it appears that there is no obligation binding on the infant which can be enforced by action upon the contract either at law or in equity. Johnson v. Pie 1 Sid. 258: 1 Keb. 905, 913: 1 Lev. 169 Wright v. Leonard 11 C. B. (N. S.) 258. Bartlett v. Wells 1 B. & S. 836 Ex parte Jones L.R. 18 Ch. D. 109 (120).
5. There appears then to be no authority for the proposition contended for by the plaintiff, and I agree with the learned Judge that on principle the suit must be dismissed. Inasmuch, however, as the loan was obtained by a misrepresentation by the defendant as to his age, I think the plaintiff was entitled to test the truth of his present assertion by suit and by this appeal, and that the decree should be so far varied that, although the suit will be dismissed, the defendant will not get costs in either Court.
6. I am of the same opinion.
7. I fully agree with the conclusion at which the Chief Justice has arrived. I think it clearly established that the defendant was under age when he entered into this contract; that the evidence referred to by him was admissible on that point; and that the plaintiff was induced to enter into the contract with him by misrepresentation as to his age, deliberately and skilfully made by the defendant, with the aid of persons as skilful and unscrupulous as himself.
8. I think the suit must fail, quite apart from anything in the exact form of the plaint, and allowing it the most liberal construction. Assuming it to be framed in tort, 'an infant,' as Sir F. Pollock accurately says, 'could not be' made liable for what was in truth a breach of contract by framing the action ex delicto. You cannot convert a contract into a tort to enable you to sue an infant'' (Pollock on Torts pp. 47, 48). Stikeman v. Dawson 1 De G. & Sm. 110 (113) was very fully cited before us: what the Vice-Chancellor says there, p. 113, is no doubt in condemnation of the proposition, that a minor is, without any misrepresentation, in equity, answerable after his majority to a person who has contracted with him, having no notice that at the time of the contract he was a minor. But in dealing with this, he cites with complete approval the case of Johnson v. Pie 1 Sid. 258: 1 Keb. 905, 913: 1 Lev. 169. In that case 'Winnington prayed judgment in an action upon the case on communication of lending (sic)300, and that the defendant was therefore to mortgage certain lands; and the defendant affirmed himself to be of full age, and so intending to deceive the plaintiff, and being in appearance a man, and avers he was twenty-and-a-half; the defendant pleads not guilty, and there is a verdict for the plaintiff, Pasch, 16 Car., 2, Rot., 401. * * * * Keeling said, such torts that must punish an infant must be vi et armis, or notoriously against the public; but here the plaintiff's own credulity hath betrayed him; also by Windham, the commands of an infant are void; and for such he shall never be attainted a disseisor, much less shall be be punished for a bare affirmation, which Twisden agreed, and that there must be a fact joined to it, as cheating with false dice, &c.; Also by this means all the pleas of infancy would be taken away, for such affirmations are in every contract. The Court awarded on the plaintiff's prayer a Nil capit par Billam.' 1 Keble, p, 913, as well as Siderfin.
9. I do not think that any of the equity cases cited apply to the present case, which is, in the most favourable view of it that can be taken for the plaintiff, an action of deceit; precisely in truth the same case as Johnson v. Pie 1 Sid. 258: 1 Keb. 905, 913: 1 Lev. 169. No doubt an infant will not be allowed to take advantage of his own fraud, and may be compelled to make specific restitution, when that is possible, of anything he has obtained by deceit. But this case does not come within either principle. If we as a Court of Equity, as well as of law, were to allow the plaintiff to recover in this suit, it would amount to restraining a defendant from setting up the plea of infancy in an action on a contract by reason of his having made a fraudulent misrepresentation dans locum contractui; and in no case has this ever been done.