Homer v. Thwing

Morton J. delivered the opinion of the Court. The defence in this case is infancy. It is contended, that this action is founded in contract, and that the defendant cannot be ousted of this defence by changing the form of action from contract to tort. Infants are liable in actions arising ex delicto, but not in those arising ex contractu. The defendant however contends, that there is a qualification of this rule, and that infants are liable for positive wrongs only, and not for constructive torts. But we know of no such distinction, and in the case of Jennings v. Rundall, so much relied upon by the defendant’s counsel, it is expressly rejected. It is true, that an infant cannot become a trespasser by any prior or subsequent consent. But he may be guilty of torts, as well by omissions of duty, as by the commission of positive wrongs. 1 Chit. Pl. 65; [6th Amer. ed. 87;] Co. Lit. 180 b, Butler’s note 56. He is also liable for frauds, as well as for torts. And his liability is to be determined by the real nature of the transaction, and [494] not by the form of the action. 1 Dane’s Abr. 143; 1 Esp. Rep. 172. Although an infant shall not be charged in trover fcr goods sold to him with a knowledge of his infancy, (Manby v. Scott, 1 Sid. 129,) and although an action will not lie against an infant for affirming himself to be of full age in the execution of a contract, (Johnson v. Pie, 1 Lev. 169, and 1 Keb. 905,) yet detinue will lie against an infant for goods delivered upon a special contract for a specific purpose, after the contract is avoided ; Mills v. Graham, 1 New Rep. 140; and assumpsit will lie against an infant for money embezzled ; for the Court will look through the form of the action into the tortious nature of the transaction. 1 Esp. Rep. 172. It has been liolden, that trover will .not lie against an infant for immoderately using a horse which he had contracted to use moderately, on the ground that the action could only be supported upon the contract. Jennings v. Rundall, before cited. But in the case at bar, the driving of the horse beyond the place to which the defendant had permission to go, was a conversion, and trover is the proper remedy. In the case of Wheelock v. Wheelwright, 5 Mass. R. 104, which in the facts, as well as the principles, is similar to this, it was decided, not only that case for improperly using the horse would not, but that trover was the only action which would lie. Whenever trover is the proper form of action, it will lie against an infant. The defence therefore is insufficient, and judgment must be entered on the verdict.1 Footnotes [1] See Campbell v. Stakes, 2 Wendell, 137; 10 Amer. Jurist, 107. But see Penrose v. Curren, 3 Rawle, 351; Schenck v. Strong, 1 Southard, 87; Curtin v. Patton, 11 Serg. & Rawle, 310