
    John Word ads. David Vance.
    An action of deceit will lie against an infant on a warranty for tlie sale of a horse: and even wliere the form of an action is ex contractu, and the substance ex delicto, the defence of infancy will not avail, 
    
    This was an action of deceit, brought under the summary jurisdiction of the Court, tried before Mr. Justice Cheves, at Laurens.
    The process stated that the plaintiff and defendant exchanged horses. That the defendant warranted the horse which he gave to the plaintiff to be sound, knowing him to be unsound.
    *The plaintiff demanded a jury, and the case was accordingly submitted to one.
    The plaintiff called three witnesses, who severally swore that the defendant warranted the horse to be sound; they all, however, admitted that there was some exception made as to a lump under the horse’s throat. One of them declared that the defendant stated, at the time of the exchange, to the plaintiff, that he had never seen the lump till the day before, although the witness said he had himself pointed' it out to the defendant five or six days before. The plaintiff proved by several witnesses, .that soon after the exchange the horse became severely diseased, and appeared to have the glanders, and that he soon became perfectly worthless. One witness swore that, in a conversation between the plaintiff and the defendant, the former charged the latter with having exchanged the horse, knowing him to have the glanders. The defendant replied, “ yes, he would be d- — d if he did not know it, and the plaintiff might sue him if he chose;” or like words. The value of the horse was proved.
    The defendant called four witnesses, who severally swore that they heard the plaintiff acknowledge that the lump on the horse’s neck was excepted from the warranty. That the defendant said he did not know the cause of it. It appeared from the testimony of one of them, that the horse not long before had the distemper, but had recovered from it, and at the time of the exchange was thriving fast. Three of the defendant’s witnesses severally proved that the plaintiff acknowledged, a fortnight after the exchange, that he was well satisfied with the exchange. He said the horse had lost his appetite, and he had given him physic, and expected that he would do well.
    This is the substance of the testimony on both'sides, regarding the merits 'of the question.
    It further appeared that, at the time of the exchange and at the time of the trial, the defendant was a minor.
    
    The presiding judge charged the jury that they ought to be satisfied that the horse was unsound at *the time of the exchange, and that the defendant knew him to be unsound, and concealed the fact, to authoi’ize them to find for the plaintiff. That if they were satisfied of these facts, although an infant is not answerable for ordinary contracts, he would be liable in this action on the ground of fraud; for which an infant is bound. But he indicated to the jury his own impression, that the proof did not show that the defendant knew the horse to be unsound.
    The jury, however, found a verdict for the plaintiff.
    This was a motion for a new trial, on the following grounds :
    1. Because it was not proved that the defendant knew and concealed the fact of the unsoundness of the horse.
    2. That the defendant, being a minor, was not liable to an action found on a contract.
    
    
      O'Neall and Irby, for the motion. Downs, contra.
    
      
      
         Vide Jennings v. Rundall, 8 T. R. 335. R.
      See 3 McC. 258; 2 Rich. 151; 3 Rich. 168; 4 McC. 387.
    
   The opinion of the Court was delivered by

Cheves, J.

On the trial, I was of opinion the evidence was not sufficient to prove the scienter; but the jury thought otherwise, and on reviewing the testimony, I cannot say they were not authorized to do so. One fact of concealment and misrepresentation was proved; and although I am not disposed to take the acknowledgment, which one of the witnesses puts into the mouth of the defendant, literally, (because I think it was rather in the nature of a defiance than an admission,) yet, it may have been entitled to some weight. The unsoundness of the horse, at the time of the exchange, from his rapid decay afterwards, seems hardly disputable, and furnishes additional evidence, from its early manifestation, that the defendant was not ignorant of the incipiency of the disease. It was a very fit question for the jury, and I think it will be best not to disturb their verdict.

On the question of infancy, there is no well founded objection. This is an action, as well in form as substance, ex delicto, and when such is the cause of action,* even where the form is ex contractu, the defence of infancy will not avail. Bristow v. Eastman, 1 Esp. N. P. Ca., 172; 1 Selwyn, 145-6.

The motion for a new trial must therefore be refused.

G-rimke, Coecock, Nott, Johnson and Gantt, JJ., concurred.  