The opinion of the court was delivered by
Bennett J.Though the principle that a minor is liable for his torts is clear, yet this is a case in which the plaintiff seeks to charge the minor in an action, in form ex delicto, for a false and deceitful warranty on the sale of a horse. The exceptions state that to induce the plaintiff to purchase the horse, the defendant represented and expressly promised him that the horse was no more than eight years old, which he then knew to be false.
In cases in which the substantive grounds of action rest in contract, minors cannot be rendered liable by changing the form of action, when they would not be liable on the contract itself. The case of Jennings v. Randall, 8 Term R., 335, in which the minor was held not liable, though the action was. in form ex delicto, for riding the horse immoderately which he had undertaken to use moderately, proceeds upon this principle. So, too, do the cases of Grove v. Newell, 1 Keb. 778, and Johnson v. Pie, 1 Lev. 169, where, in the one case, upon the sale of goods, the minor affirmed that they belonged to the vendor, and, in the other, in obtaining money upon a loan, affirmed himself to be of age, yet he was held not liable for the deceit. In Manby v. Scott, 1 Sid. 129, the distinction is taken that if the action against an infant is founded on a contract, it shall not be converted into a tort. The case of Green v. Greenbank, 4 C. L. R. 375, is the very case of a false warranty in the sale of a horse, and the action in form ex delicto, yet the infant was held not liable. This was a case in the common pleas court, is directly in point, and is, we think, in accordance with the whole course of the English law upon the subject. The South Carolina case to which we have been *450^referred, 1 Nott & M’Cord’s R. 197, being in conflict with the English cases, both ancient and modern, is entitled to no consideration. In the case in 3 Pickering’s R., which was much relied upon by the plaintiffin argument, the cause of action did not arise out of the bailment, but from a subsequent conversion of the property after the bailment was determined. Such was the case also in 6 Cranch, 226. These and similar cases fall within the common principle, which renders minors liable for their torts, as in the case of slander. In the case now before the court, the cause of ac-'i tion, it is clear, arises out of contract. Though an infant is liable for positive wrongs, and constructive torts, or frauds, yet, to charge him, the fraudulent act must be wholly tortious. If the matter arises from contract, though the transaction is infected with fraud, it cannot be turned into a; tort to charge the infant by a change in the form of action. ' This principle has been adopted to protect infants against the effect of their contracts made by improper artifice in the thoughtlessness of youth, and before they suitably appreciate the value of character and the obligations of moral duty. It is for us to declare the law as we find it, and therewith we should be content.
The judgment of the county court must be reversed, and a new trial granted.