
    James L. Peigne vs. John Sutcliffe.
    An infant, at the age of discretion, is liable in an action on the case, for the embezzlement of goods entrusted to his care.
    In the month of September, 1821, the plaintiff delivered to the care and custody of the defendant, John Sut-cliffe, Flour, Groceries and Dry Goods, to the amount of $1000, to be delivered to one John Liglitbourne, at Rio Pongus, on the coast of Africa. The defendant was mate of the schooner Calypso, and received the goods on board the schooner as the agent of the plaintiff for the purposes aforesaid, and proceeded on the voyage and arrived in safety at Siere Leone, but instead of deliveiiug the goods entrusted to his care, to Liglitbourne, he sold them and converted the proceeds to his own use. it was for this breach of trust that the suit, (a special action on the case,) was brought to recover the value of the goods and damages. To this action the defendant pleaded infancy, and the plaintiff demurred generally.
    
      Hunt, ou the part of the defendant argued that although the declaration in this case ivas in the nature oi a tort, yet in substance it was on contract, and an infant was not liable on contract for goods sold and delivered to him. Carthew, 160. If the defendant had been of full age, he would have been liable for the value of the goods delivered to him, and an action for money had and received would bave lain against him. But as lie was an in> fant under age, an assumpsit could not be converted into a tort, so as to make him liable in that form of action. 1 Co myn on Contracts, 143-160. . And that if one deliver goods to an infant upon a contract, he shall not be chargeable in trover dr in any other action for them. • .
    Yeadon, contra.
    This is a ease of tort, and ivas declared on as such. These goods were delivered to the defendant upon a special trust and confidence that he would safely deliver them to Lightbourne, instead of which he betrayed his trust and sold them, and converted the money to his own use. . There then was a gross and manifest fraud or tort; an act not only of omission but one of Commission, which makes him clearly responsible as for a tort. He admitted that an infant ivas not liable on a contract for the sale and delivery of goods (except for necessaries) but in this case, there was no sale and delivery to him. It Was a delivery for a special purpose, and a conversion to his own use, contrary to good faith and the confidence the plaintiff had placed in him. He cited 1 Espinasse, 172. 1 Nott & M'Cord, 197.-.
    Finley, on the same side,
    urged that this was an action ex delicto, and not ex contractu. It was not converting an assumpsit into a tort, as was said on the other side, but for a manifest fraud. Assumpsit could not have been maintained for it. The goodswere not charged to defendant as sold to him, but invoiced as goods shipped on board the' Calypso to Lightbourne under the charge of defendant, and embezzled by him, and therefore, be was clearly chargeable in this form of action.' 6th Cranch, 226; 3d Bacon, 685.
   Bay, J

wbo heard the demurrer, delivered the following judgment. “ I have considered this case, and I am decidedly of opinion that the demurrer to the plea of infancy ought to be sustained. It is a well established rule of law, that all contracts with infants are void or voidable except for necessaries, and tbe reason of tbe law is founded on tbe supposed want of judgment and discretion in their contracts land transactions with others, and it is to ¡jrevent diem from being over-reached by persons of maturer year» and experience. But there are otlmr eases in Law where this indulgence and protection shall not extend to an infant; as in all cases of criminal actions and wrongs done to'the persons or estates of another; Infant’s Lawyer, 34. The reason assigned in such cases, is, that malitia supplet setatem, especially if the infant he of the years of discretion, and it was alleged in this case ■that the'defendant was between 19 and Í0 years of age, (which was not denied,) at tbe time these goods were committed to his custody, and there has been a most evident wrong done to the plaintiff. In the first place there w'as a shameful breach of* confidence in not delivering these goods agreeably to order; and in the second place, an equally shameful and dishonest piece of conduct in converting the proceeds to his own use, both of which are exceptions to the manifest rules of exemption which the law has allowed for the protection of infants from their own imprudent transactions in their dealings with others, as laid down in the authorities quoted. The case quoted from Carthew, 160, by the Counsel for the defendant was one of a mercantile nature,-where it was held that an infant who was a partner in a mercantile house, was not liable on a bill of Exchange drawn by the house and returned protested, although the other partners were. So, in like manner, if goods are sold to an infant, (except for necessaries,) he is not liable, and such sale shall not be convertedinto a tort, so as to charge him in that form of action as laid down m 1 Comyn on Contracts, 149-50, and also as mentioned in 8th Term Rep. 335, which were relied on hy the Counsel for the defendant in bis argument. In the present ease however, there was no contract for the sale of the goods, and the present action is one of a special nature founded on fraud and not on contract, consequently none 6f the authorities urged on the part of the defendant, will apply or bear the defendant out in support of his plea. On the contrary, although the law will not allow an infant to be charged on contract, except for necessaries, yet he shall bo answerable in all cases of a criminal nature and for torts and trespasses, &c. &c. 3rd Inst. 301. 8 Rep. 44. Infant’s Lawyer, 34. Under the circumstances of this case the law will charge an infant in all cases arising ex de-licto or for wrongs done the plaintiff, and in some cases, he is liable even in assumpsit for money had and received; as where money has been embezzled by him; 1 Peake’s Nisi Prius 223. Lord Kenyon said the case was new and had not been decided; bu¿ he was of opinion that this action, though in form arising ex contractu, in fact arose ex delicto, and as defendant could not have defended himself by reason of infancy if an action of foover had been brought for the money, so he ought not to be allowed to defend himself on that ground in this action.— The same doctrine is laid down in 1 Nott & McCord, 197; that an action of deceit will lie against an infant on a warranty for the sale of a horse; and even where the form of the action is ex contractu and the substance is ex delicto, the defence of infancy will not avail. 6th Cranch, 6^1. C. J. Marshall laid it down in a case brought up from Alexandria upon a writ of error, as. the opinion of the Supreme Court, that infancy is no complete bar to an action of trover, although the goods converted be in possession of defendant in virtue of a previous contract. The conversion is still in nature of a tort; it is not an act of omission but of commission, and it is within the class of offences for which infancy can afford no proteotion. The case was that of 70 barrels of Flour shipped at Alexandria under the nare of defendant as supercargo,, tobe sold at No; loll-'.. Instead of obeying the orders of plaintiffj defendant shipped the Flour to the West Indies which was lost at sea and for this the action was 3;>ain-rained, in 3d Bacon, 585, it is said, were an infant being master of a ship at St. Christopher’s beyond sea, by contract with another undertakes to carry goods to England and there deliver them, but does not deliver them agreeably to the contract and wastes and consumes them he may be sued for the goods in a Court of Admiralty, though he be an infant, lor this suit is but in nature of detinue or trover and conversion at Common Law.— From all the authorities and the reason and justice of the case, I am of opinion that the demurrer to the plea should be sustained.

From this decision the defendant appealed, and moved to set aside the judgment, but the Court of Appeals affirmed the judgment for the reasons assigned.

Judgment affirmed.  