
    David Homer versus Ebenezer W. Thwing et al.
    
    An infant, who hires a horse to go to a place agreed on, but goes to another place in a different direction, is liable in tremer, for an unlawful conversion of the horse.
    Trover for a horse. One of the defendants was defaulted. Thwing, who was an infant, defended by guardian.
    The plaintiff offered evidence, that the horse was let by him to the defendants to drive in a chaise to the Punch Bowl in Brookline, and that they went to Fresh Pond in Cambridge without leave, and afterwards to the Punch Bowl; and that the horse was returned much injured.
    The counsel for Thwing contended, that as this was a transaction arising originally on contract, in which the infancy of Thwing would have been a good defence, the plaintiff should not recover upon the same facts by changing the form of his action to tort.
    But the jury were instructed, for the purposes of this trial, that the action would lie against Thwing, notwithstanding hii infancy ; and a verdict was found for the' plaintiff.
    If the Court should be of opinion, that the instruction tc the jury was wrong, the plaintiff was to be nonsuited ; bu otherwise, judgment was to be entered according to the ver diet.
    
      Dunlap
    
    now insisted upon the objection made at the trial Jennings v. Rundall, 8 T. R. 335, is decisive of this case The wrong here arises out of a contract, belonging to the thirc class of bailments in Coggs v. Bernard, 2 Ld. Raym. 913, but the wrongs for which infants are responsible must arise wholly ex delicto. Johnson v. Pie, 1 Lev. 169, and 1 Keb. 905, 913. If the facts here would furnish a good defence to an action on the contract, they will to an action of tort; for the Court will look at the substance, rather than the form of the action. Bristow v. Eastman, 1 Esp. R. 172; S. C. Peake’s Cas. 222; Manby v. Scott, 1 Sid. 129. In Jennings v. Rundall it is said, that trover will lie against an infant; but that must be where his conduct is wholly tortious. That was an action against an infant for riding immoderately a mare which had been delivered to him to be moderately ridden, and the declaration contained a count in trover, and yet the action could not be sustained. See also 1 Dane’s Abr. 143; 1 Chit. Pl. 65; 1 Pothier on Obligations, 71. The only case which seems to have a contrary bearing, is that of Wheelock v. Wheelwright, 5 Mass. R. 104. That case was decided without any allusion to the distinction now taken in respect to an infant, that his acts must be wholly tortious to sustain an action. In the case at bar there was only a constructive tort, for which an infant is not liable.
    S. D. Parker, for the plaintiff,
    relied on the case last cited of Wheelock v. Wheelwright.
    
   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 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. 
      
       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
     