Parkeb, C. J.
The general principle applicable to this case is, that an infant is liable in actions ex delicto, whether founded on positive wrongs, or constructive torts, or frauds. 2 Kent’s Com. 197 ; 1 Ckitty’s PI. 65.
Thus he is liable in trover, although the goods converted were in his possession by virtue of a previous contract. 6 Cranch’s Rep. 231, Vasse vs. Smith; 3 Pick. 492, Homer vs. Timing. And in detinue, where he received skins to finish, and afterwards withheld them. 4 Bos. Pul. 140, Mills vs. Graham. And assumpsit for money had and received, has been sustained against an infant for money embezzled. 1 Esp. Rep. 172, Bristow vs. Eastman ; Peakes Rep. 222, S. C.
But a matter of contract, or arising ex contractu and prop[444]*444erly belonging to that class, is not to be turned into a tort, in order to charge the infant by a change of the form of action. 2 Kent’s Com. 197. As, for instance, where the plaintiff declared that having agreed to exchange mares with the defendant, the defendant, by falsely warranting his mare to be sound, well knowing her to be unsound, falsely and fraudulently deceived the plaintiff, <fcc. ; held that infancy was a good plea in bar. 2 Marshall’s Rep. 485, Green vs. Greenbank; 4 E. C. L. Rep. 375.
In Jennings vs.Randall the plaintiff declared in case, that, at the request of the defendant, he delivered to him a certain mare, to be moderately ridden, and the defendant wrongfully rode her in an immoderate, excessive and improper manner, and took so little care of her, that by reason thereof she was strained and damaged ; and in a second count alleged that he delivered the mare to the defendant to go and perform a reasonable and moderate journey, and the defendant wrongfully rode and worked her a much longer journey. On a demurrer to a plea of infancy, the court considered the action as founded substantially on the contract, and gave judgment for the defendant. Lord Kenyon said, “ the plaintiff let the mare to ‘ hire ; and in the course of the journey an accident happened, ‘¿the marejbeing strained, and the question is, whether this ‘ action can be maintained ? I am clearly of opinion that ‘ it cannot; it is founded on contract. If it were in the ‘ power of a plaintiff to convert that which arises out of a ' contract into a tort, there would be an end of that protec- ‘ tion which the law affords to infants.” 8 D. E. 336.
It is undoubtedly true, that the substance of all the matter thus alleged in the plaintiff ⅛ declaration, in Jennings vs. Randall, might have been set forth in an action of assumpsit; and regarding it, as Lord Kenyon did, as an injury resulting from an accident, it would seem to be an attempt to convert an action founded on contract into a tort. But the attention of the court does not seem, in the opinion delivered, to have been directed to the question whether part of the matter thus [445]*445alleged might not, upon proper proof, have sustained the count in trover, which was also contained in the declaration, or an action of trespass.
It is apparent, from the cases before cited, that an infant may be charged for a tort arising subsequent to a contract, and so far connected with his contract that but for the latter the tort would not have been committed. In Homer vs.j Thwing the defendant hired a horse to go to a place agreecf on, but went to another place, in a different direction, and hej was held liable in trover for an unlawful conversion.
And in Campbell vs. Stokes, 2 Wendell 137, where an infant took a mare, on hire, and drove her with such violence, and otherwise cruelly used her, that she died, it was held that trespass might be maintained against him, and the judgment of the supreme court was unanimously confirmed by the court of errors. Chancellor Walworth said, “ if the infant 1 does any wilful and positive act, which amounts on his part 1 to an election to disaffirm the contract, the owner is entitled ‘ to the immediate possession. If he wilfully and intention-1 ally injures the animal, an action of trespass lies against ‘ him for the tort. If he should sell the horse, an action of £ trover would lie, and his infancy would not protect him.”
The principle to be deduced from these authorities seems to be, that if the tort or fraud of an infant arises from a breach of contract, although there may have been false representations or concealment respecting the subject matter of it, the infant cannot be charged for this breach of his promise or contract, by a change of the form of action. But if the tort is subsequent to the contract, and not a mere breach of it, but a distinct,wilful and positive wrong of itself, then, although it may be connected with a contract, the infant is liable.
Upon this principle the count in trover, in this case, cannot be supported, upon the evidence offered. The goods went into the possession of the defendant by virtue of a contract, which he has avoided by reason of his infancy. The effect [446]*446of that contract was to authorize him to appropriate the goods to his own use as owner, and to dispose of them at his pleasure. If he has done so by using them, or selling them to third persons, so that he cannot re-deliver them, neither his refusal to pay, nor a refusal to deliver the goods, can be considered as any thing more than a breach of contract. A refusal to pay is a breach of the express contract, and a refusal to return the goods, after he had converted them with the assent of the the plaintiff, and when he no longer had it in his power to return them, could be considered as no more than a breach of an implied assumpsit to return the goods, upon request, after he had rescinded the contract by a refusal to pay. Were this otherwise, the law would furnish him no protection against his contract, in such case ; for by a subsequent demand of the goods, which he had not the power to comply with, he would be made liable for their value in trover, although he could not be charged in assumpsit. It does not appear in this case that there was such a demand ; but if one was made, there is no evidence that the defendant, after he denied his liability on the contract, could have complied with it.
Still less is there any ground for charging the defendant in trover, because the plaintiff was induced to make the contract, upon which he received the goods, by his misrepresentations. The goods were, notwithstanding, received upon a contract ; and if the contract had not been rescinded by the defendant, upon the ground of his infancy, there would have been no pretence for an action of trover. His thus rescinding it cannot be held, of itself, to be a conversion.
If after the defendant in this case had interposed his plea of infancy, and refused to perform the contract, the plaintiff had demanded the hats, and the defendant, having them in his possession, had refused to deliver them, that would have been a wilful, positive wrong of itself, disconnected from the contract, and upon such evidence the count in trover might have been maintained. Where goods were sold to an [447]*447infant, on a credit, upon his representation that he was of full age, and a plea of infancy was interposed, an action of re-plevin was sustained against his administrator, after a demand upon him. 15 Mass. Rep.
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Parkeb, C. J.
The general principle applicable to this case is, that an infant is liable in actions ex delicto, whether founded on positive wrongs, or constructive torts, or frauds. 2 Kent’s Com. 197 ; 1 Ckitty’s PI. 65.
Thus he is liable in trover, although the goods converted were in his possession by virtue of a previous contract. 6 Cranch’s Rep. 231, Vasse vs. Smith; 3 Pick. 492, Homer vs. Timing. And in detinue, where he received skins to finish, and afterwards withheld them. 4 Bos. Pul. 140, Mills vs. Graham. And assumpsit for money had and received, has been sustained against an infant for money embezzled. 1 Esp. Rep. 172, Bristow vs. Eastman ; Peakes Rep. 222, S. C.
But a matter of contract, or arising ex contractu and prop[444]*444erly belonging to that class, is not to be turned into a tort, in order to charge the infant by a change of the form of action. 2 Kent’s Com. 197. As, for instance, where the plaintiff declared that having agreed to exchange mares with the defendant, the defendant, by falsely warranting his mare to be sound, well knowing her to be unsound, falsely and fraudulently deceived the plaintiff, <fcc. ; held that infancy was a good plea in bar. 2 Marshall’s Rep. 485, Green vs. Greenbank; 4 E. C. L. Rep. 375.
In Jennings vs.Randall the plaintiff declared in case, that, at the request of the defendant, he delivered to him a certain mare, to be moderately ridden, and the defendant wrongfully rode her in an immoderate, excessive and improper manner, and took so little care of her, that by reason thereof she was strained and damaged ; and in a second count alleged that he delivered the mare to the defendant to go and perform a reasonable and moderate journey, and the defendant wrongfully rode and worked her a much longer journey. On a demurrer to a plea of infancy, the court considered the action as founded substantially on the contract, and gave judgment for the defendant. Lord Kenyon said, “ the plaintiff let the mare to ‘ hire ; and in the course of the journey an accident happened, ‘¿the marejbeing strained, and the question is, whether this ‘ action can be maintained ? I am clearly of opinion that ‘ it cannot; it is founded on contract. If it were in the ‘ power of a plaintiff to convert that which arises out of a ' contract into a tort, there would be an end of that protec- ‘ tion which the law affords to infants.” 8 D. E. 336.
It is undoubtedly true, that the substance of all the matter thus alleged in the plaintiff ⅛ declaration, in Jennings vs. Randall, might have been set forth in an action of assumpsit; and regarding it, as Lord Kenyon did, as an injury resulting from an accident, it would seem to be an attempt to convert an action founded on contract into a tort. But the attention of the court does not seem, in the opinion delivered, to have been directed to the question whether part of the matter thus [445]*445alleged might not, upon proper proof, have sustained the count in trover, which was also contained in the declaration, or an action of trespass.
It is apparent, from the cases before cited, that an infant may be charged for a tort arising subsequent to a contract, and so far connected with his contract that but for the latter the tort would not have been committed. In Homer vs.j Thwing the defendant hired a horse to go to a place agreecf on, but went to another place, in a different direction, and hej was held liable in trover for an unlawful conversion.
And in Campbell vs. Stokes, 2 Wendell 137, where an infant took a mare, on hire, and drove her with such violence, and otherwise cruelly used her, that she died, it was held that trespass might be maintained against him, and the judgment of the supreme court was unanimously confirmed by the court of errors. Chancellor Walworth said, “ if the infant 1 does any wilful and positive act, which amounts on his part 1 to an election to disaffirm the contract, the owner is entitled ‘ to the immediate possession. If he wilfully and intention-1 ally injures the animal, an action of trespass lies against ‘ him for the tort. If he should sell the horse, an action of £ trover would lie, and his infancy would not protect him.”
The principle to be deduced from these authorities seems to be, that if the tort or fraud of an infant arises from a breach of contract, although there may have been false representations or concealment respecting the subject matter of it, the infant cannot be charged for this breach of his promise or contract, by a change of the form of action. But if the tort is subsequent to the contract, and not a mere breach of it, but a distinct,wilful and positive wrong of itself, then, although it may be connected with a contract, the infant is liable.
Upon this principle the count in trover, in this case, cannot be supported, upon the evidence offered. The goods went into the possession of the defendant by virtue of a contract, which he has avoided by reason of his infancy. The effect [446]*446of that contract was to authorize him to appropriate the goods to his own use as owner, and to dispose of them at his pleasure. If he has done so by using them, or selling them to third persons, so that he cannot re-deliver them, neither his refusal to pay, nor a refusal to deliver the goods, can be considered as any thing more than a breach of contract. A refusal to pay is a breach of the express contract, and a refusal to return the goods, after he had converted them with the assent of the the plaintiff, and when he no longer had it in his power to return them, could be considered as no more than a breach of an implied assumpsit to return the goods, upon request, after he had rescinded the contract by a refusal to pay. Were this otherwise, the law would furnish him no protection against his contract, in such case ; for by a subsequent demand of the goods, which he had not the power to comply with, he would be made liable for their value in trover, although he could not be charged in assumpsit. It does not appear in this case that there was such a demand ; but if one was made, there is no evidence that the defendant, after he denied his liability on the contract, could have complied with it.
Still less is there any ground for charging the defendant in trover, because the plaintiff was induced to make the contract, upon which he received the goods, by his misrepresentations. The goods were, notwithstanding, received upon a contract ; and if the contract had not been rescinded by the defendant, upon the ground of his infancy, there would have been no pretence for an action of trover. His thus rescinding it cannot be held, of itself, to be a conversion.
If after the defendant in this case had interposed his plea of infancy, and refused to perform the contract, the plaintiff had demanded the hats, and the defendant, having them in his possession, had refused to deliver them, that would have been a wilful, positive wrong of itself, disconnected from the contract, and upon such evidence the count in trover might have been maintained. Where goods were sold to an [447]*447infant, on a credit, upon his representation that he was of full age, and a plea of infancy was interposed, an action of re-plevin was sustained against his administrator, after a demand upon him. 15 Mass. Rep. 359, Badger vs. Phinney. In this latter case, the defence of infancy was made by the administrator of the infant; the demand of the goods was made upon him, and the action sustained against him ; but the court said, “ the basis of this contract has failed, from the fault, if not the fraud of the infant; and on that ground the property may be considered as never having passed from, or as having revested in, the plaintiff.” And upon this ground, if the infant, having rescinded his contract, withholds the goods purchased, after a demand which he had. power to comply with, there seems to be no good reason why he should not answer in trover, the same as for any other conversion of property lawfully in his possession. 6 Crunch 231 ; 4 B. Sp Pul. 140, before cited.
The next question is, whether this action can be maintained against the defendant, for the fraudulent representation that he was of age, by reason of which the plaintiff was induced to sell him the hats, on a credit, and to take his note.
An action may be maintained for false and fraudulent representations, in order to induce a party to sell, and whereby he was induced to sell, goods to one of the defendants, on a credit. 3 Pick. R. 33, 36, Livermore vs. Herschcll.
But Johnson vs. Pie, 1 Lev. 169, was “case, for that the defendant, being an infant, affirmed himself to be of full age, and by means thereof the plaintiff lent him 100/., and so he had cheated the plaintiff by this false affirmation.” After verdict for the plaintiff, it was moved in arrest of judgment that the action would not lie for this false affirmation, but the plaintiff ought to have informed himself by others.—“ Kelynge and Wyndham held, that th’e action did not lie, because the affirmation, being by an infant, was void; and it is not like to trespass, felony, &e., for there is a fact [448]*448done. Twysden doubted, for that infants are chargeable for trespasses. Dyer 105; and so, if he cheat with false dice, &c.” —The report in Levinz states that the case was adjourned ; but in a note, referring to 1 Keb. 905, 913, it is stated that judgment was arrested.
If this case be sound, the present action cannot be sustained on the first count. From a reference in the margin, it seems that the same case is reported, 1 Sid. 258. Chief Baron Comyns, however, who is himself regarded as high authority, seems to have taken no notice of this case in his Digest, “Action on the case for Deceit,” but lays down the rule that “ If a man affirms himself of full age when he is an infant, and thereby procures money to be lent to him upon mortgage,” he is liable for the deceit; for which he cites, 1 Sid. 183. Com. Dig., Action, &c. A. 10.
We are of opinion that this is the true principle. If infancy is not permitted to protect fraudulent acts, and infants are liable in actions ex delicto, whether founded on positive wrongs, or constructive torts, or frauds, (2 Kent 197) as for slander, (Noy’s Hep. 129, Hodsman vs. Grissel,) and goods converted, (auth. ante) there is no sound reason that occurs to us why an infant should not be chargeable in damages, for a fraudulent misrepresentation, whereby another has received damage.
In the argument of Johnson vs. Pie, Grove and Nevill’s case was cited, “ where, in case against an infant, for selling a false jewel, affirming it to be a true one, ’twas adjudged the action did not lie,” and the case seems to have been considered as if the affirmation that he was of age was to be regarded as part of the contract. But there is a wide difference between the two cases. In Grove & Nevill’s case the subject matter of the contract was the jewel which was sold. The affirmation that it was a true one was a false warranty of the article sold.' If the defendant had been of age, assumpsit might have been maintained. The infant was not to be charged, by adopting a different form of action. [449]*449But the representation in Johnson vs. Pie, and in the present ease, that the defendant was of full age, was not part of the contract, nor did it grow out of the contract, or in any way result from it. It is not any part of its terms, nor was it the consideration upon which the contract was founded. No contract was made about the defendant’s age. The sale of the goods was not a consideration for this affirmation or representation. The representation was not a foundation for an action of assumpsit. The matter arises purely ex delicto. The fraud was intended to induce, and did induce, the plaintiff to make a contract for the sale of the hats, but that by no means makes it part and parcel of the contract. It was antecedent to the contract; and if an infant is liable for a positive wrong connected with a contract, but arising after the contract has been made, he may well be answerable for one committed before the contract was entered into, although it may have led to the contract.
It has been said that “ all the infants in England might be ruined,” if infants were bound by acts that sound in deceit. But this cannot be a reason why the action should not be maintained for fraudulent wrongs done, for the same reason would seem to apply equally well in cases of slander, trover, and trespass. The latter are as much the results of indiscretion as the former, and quite as likely to be committed.
In Bac. Abr., Infancy, I, 3, it is said—“ Also, it seems, ‘ that if an infant, being above the age of discretion, be ‘ guilty of any fraud in affirming himself to be of full age, ‘ or if by combination with his guardian, &c., he make any ‘contract or agreement, with an intent afterwards to elude it ‘ by reason of his privilege of infancy, that a court of equity ‘ will deem it good against him according to the circumstan- ‘ ces of the fraud.” 3 Gwillim’s Bac. 604. The authorities cited do not seem to state, specifically, the first branch of the proposition in the text; but there are several cases sustaining the general proposition that an infant may be [450]*450bound, in equity, by a contract which the other party has Peen induced to enter into by his fraudulent representation or concealment. 2 Ves., sen. 212, Lord Teynham vs. Webb; 2 Eq. Cas. Abr. 489, Evroy vs. Nicholas, and case cited ; 1 Brown’s Ch. Rep. 358, Beckett vs. Cordley; Fonblanque’s Eq. (4 Am. ed.) 80, note z. At law, he is not bound by.the contract, although it was procured by his fraudulent representation that he was of full age. 1 Johns. Cas. 127, Con-roe vs. Birdsall. If, in equity, the infant may be bound by the contract, because of his fraud in procuring it, he may well, at law, be answerable for the previous deceit through which it was procured, if he has thereby obtained the property of another and refuses performance oil his part.
Our conclusion is that the action may be sustained on the first count.
But we are of opinion that the plaintiff is not entitled to recover, in damages, the costs of the action he commenced on the note, or those which he was obliged to pay in that suit. For aught which appears, he knew, when he commenced that action, that the defendant was an infant, and would avail himself of his infancy. If he chose to try an experiment, he must abide the consequences. For this reason the verdict must be set aside, and a
New trial granted.