The substance of the declaration is, that the defendant having hired the plaintiffs’ horse for a short journey, drove him so carelessly and 'immoderately as to cause his death. No promise is alleged to drive him moderately and with due care, but the plaintiffs put their case upon the ground of a breach of duty by the defendant, and the doing of a tortious act; and the question is, whether a minor is liable in such case.
On this point the authorities are not altogether harmonious. In Fitts v. Hall, 9 N. H. 441, the cases were examined, and this principle deduced from them in the opinion by Parker, C. J., 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.” In that case it was decided that an infant was liable for deceit in falsely representing himself to be of age, and thereby inducing the plaintiff to sell him goods on credit, and afterwards avoiding his promise to pay by pleading infancy. The general doctrine of Fitts v. Hall is fully approved in Prescott v. Norris, 32 N. H. 103, per Perley, O. J., and is supported by the reasoning of the court in Woodman v. Hubbard, 25 N. H. 67, 73. Indeed, it would seem to be too clear to admit of controversy, *238that an infant bailee must be liable for the injury or destruction of the thing bailed, by his positive, wilful, and tortious act, even although it was part of the contract, express or implied, that the goods should be safely returned. As if, in the case of the bailment of a horse, he wilfully beat him to death, or wilfully drove him so immoderately as to endanger his life, and knowing that he did so, and actually causing his death. Such acts, indeed, would be wholly unauthorized by the contract of bailment; and in respect to them the infant would stand as if no such contract existed. So that an action of trover might be maintained against him on the. ground that the bailment was theréby determined. Wentworth v. McDuffee, 48 N. H. 402. It does not follow from this that for every case of immoderate driving for which an adult would be liable, an infant bailee would also be liable. The baileein these cases is understood to stipulate for ordinary care and skill in the use of an animal so bailed, and for any injury caused by the want of it, he is liable. In the case of the infant, however, his promise to use due care and skill does not bind him, but he is still liable for positive tortious acts, wilfully committed, whereby the thing bailed is injured or destroyed. If, through want of skill and experience, the . animal is unintentionally injured by the infant, it might well be contended that he would not be liable because be has made no binding promise to exercise such skill. There are cases which hold that an infant, who hires a horse for a journey, is not liable for an injury caused by immoderate driving. The case of Jennings v. Rundall, 8 T. R. 335, is of this character, and .the court held that the cause of action arose out o£ a contract, and that the infant could not be made liable by changing the form of action to tort. This case is criticised and doubted by Parker, C. J., in Fitts v. Hall, upon^the ground that Lord Kenyon seemed to regard the injury as resulting from an accident, without adverting to that part of the declaration which might, with proper proof, have made a case of conversion. It is very true that Lord Kenyon, in his opinion, assumes that the injury to the horse was accidental, although the declaration alleges that the defendant wrongfully drove the mare immoderately, and so caused the injury. The other judges also assume that the cause of action was substantially a breach of contract; and if this were so, the decision was clearly right, and would not conflict with the doctrine of Fitts v. Hall.
There are other authorities that accord with Jennings v. Rundall. See 1 Am. Lead. Cases, 4th ed. 261-263, and cases cited. In Schenk v. Strong, 1 Southard 87, infancy was held to be a good bar to an action on the case alleging that a chair was lent to defendant for a particular journey, to be used carefully and returned at a specified time, yet that he went on a different journey, carelessly broke it, and did not return it at the time agreed, thereby violating .his engagement in every particular. In all respects except the going a different journey, this has the ^character of a mere breach of contract, for which the infant cannot be made liable by changing the form of action. The using the chair for a different journey was not a mere breach of contract, but a positive tortious act for which the infant was liable in some proper form of ac*239tion. Homer v. Thwing, 3 Pick. 492; Towne and al. v. Wiley, 23 Vt. 353. In sucb cases tlie infant stands like an adult, and is liable on tlie ground that using the thing bailed for another purpose is a conversion. In such case an adult is clearly liable, Woodman v. Hubbard, 25 N. H. 72, where it was held by Perley, J.,that driving ahorse to a place beyond the limits for which he was hired was a wrongful invasion of the plaintiff’s right of property, and not a mere breach of contract; and the case Homer v. Thwing is cited and approved. The judge says that this case, and Vasse v. Smith, 6 Cranch 231, Campbell v. Stakes, 2 Wend. 137, and Mills v. Graham, 1 Bos. and P. New 140, are strong authorities to the point that an infant who receives goods on a contract, and disposes of the property without right, is liable in trover.
In Mills v. Graham, 1 B. and P. New 140, it was held that an infant who had received of the plaintiff skins to be dressed and returned, was liable in trover for refusing to return them on demand. In Parsons on Con. 264, it is laid down that for a tort or fraud which is a mere breach of his contract, an infant is not liable ; but where the tort, though connected by circumstances with the contract, is still distinguishable from it, there he is liable, — as, if he hires a horse for an unnecessary ride, he is not liable for the hire ; but if, in the course of the ride, he wilfully abuses and injures the horse, he is liable for the tort; and if he should sell the horse, trover would lie. In 2 Greenl. Ev., § 368, it is laid down, that an infant bailee of a horse is not liable for treating him negligently or riding him immoderately, but is liable if he goes to a different place, or beats the animal to death. In Campbell v. Stakes, 2 Wend. 37, it was held that if an infant who has hired a horse, wilfully and intentionally injures the animal, trespass will lie against him, or if he does any wilful or positive act which amounts to a disaffirmance of the contract; but if he neglect to use him with ordinary care, or to return him at the time agreed on, he is not liable. This case is cited with approbation in Fitts v. Hall. Campbell v. Stakes was an action of trespass; and the court held that infancy, with an averment that the injury occurred in driving the horse through the unskilfulness and want of knowledge, discretion, and judgment of the defendant, was a good plea.
In Towne and al. v. Wiley, 23 Vt. 359, the doctrine is said to be that infants are held liable for positive and substantial torts, but not for violations of contracts merely, although by the rules of pleading a plaintiff might declare in tort or contract at his election; and in this case Judge Redfield endorses the doctrine of Fitts v. Hall.
We think, then, that the doctrine is well established, that an infant bailee of a horse is liable for any positive and wilful tort done to the animal distinct from a mere breach of contract, — as, by driving to a place other than the one for which he is hired, refusing to return him on demand after the time has expired, wilfully beating him to death, and the like ; so, if he wilfully and intentionally drive him at such an immoderate speed as to seriously endanger Ms life, knowing that it will do so. In Wentworth v. McDuffie, 48 N. H. 402, such driving by an adult was *240held to be a conversion; and for aught we can see, the same principle would apply to the case of an infant.
In all these cases it may be urged that the law implies a promise, on the part of the bailee, to drive the horse only to the appointed place, to return him at the end of the journey, not to abuse him or drive him immoderately, and that a failure in either respect is merely a breach of contract. So it might be said that the law would raise a promise not to kill him; and yet no one would fail to see that to kill him wilfully would be a positive act of trespass, for which an infant should be liable the same as if there were no contract.
Between acts that are to be regarded as mere breaches of the contract of bailment, and positive and wilful torts, a line must be drawn somewhere; and although it must often be difficult to discriminate between them, we think it is safe to hold that the acts we have named, and others of a like character, are positive torts for which an infant is liable, and not mere breaches of contract. When .the infant stipulates for ordinary skill and care in the use of the thing bailed, but fails for want of skill and experience and not from any wrongful intent, it is in accordance with the policy of the law that his privilege; based upon his want of capacity to make and fully understand such contracts, should shield him. A failure in such a case, from mere want of ordinary care or skill, might well be regarded as in substance a breach of contract for which the infant is not liable, even although in ordinary cases an action ex delicto might be sustained. But when, on the other hand, the infant wholly departs from his character of bailee, and by some positive act wilfully destroys or injures the thing bailed, the act is in its nature essentially a tort, the same as if there had been no bailment, even if assumpsit might be maintained in the case of an adult, or a promise to return the thing safely.
In the case before us the declaration embraces a charge of immoderate driving whereby the plaintiffs’ horse was killed, and, as we have seen, the proof might be such, under a proper declaration, as to charge the infant; and it might be such as to show that the immoderate driving was unintentional and wholly owing to want of experience and discretion, in which case he would not be liable. The question then is, whether an action on the case, as this is, can be maintained for any cause of action that may be proved under this declaration. If it can be, the demurrer must be sustained.
In some cases it is held that by a positive and wilful tort the bailment is determined, and th.e remedy must be by action of trespass or trover, and that case will not lie. Such is the doctrine of Campbell v. Stakes, before cited; and the court put it upon the ground that the action on the case necessarily supposes the defendant to have a right to the possession of the property, under the contract of hiring, at the time the injury was committed, and that by declaring in case the plaintiff affirms the existence of such contract, and the plea of infancy would be a good defence to such -action — citing Jennings v. Rundall, 8 T. R. 335, and Green v. Greenbank, 2 Marshall 485, 4 Eng. Com. Law 375.
*241To the correctness of this view we are unable to subscribe. If a wrong has been done to the property bailed of such a nature that an action on the case would ordinarily be an appropriate remedy, and at the same time an infant would be liable for it in any form of action, we perceive no reason for holding that case would not lie against him.
If the declaration sets out a cause of action which is good against an infant bailee, by reason of its being a positive and wilful wrong and not a mere breach of contract, and at the same time, according to the rules of pleading, an action on the case appears to be the appropriate remedy, we- think it clear that such an action would be maintained.
If it were necessary that the bailment should be determined in order to maintain the action, the facts stated would show it the same as it would be shown by stating a conversion in trover.
In many cases trespass or trover will lie for injuries done by bailees, and to maintain those suits the bailment must have been determined ; and this is shown by proof of tortious acts inconsistent with the bailment — and from the bringing of these suits it may fairly be inferred that the plaintiff elects to consider the bailment at an end. In bringing an. action on the case setting out such a positive and wilful tort as is wholly inconsistent with the contract of bailment, and amounts to a disaffirmance of it, the same inference may be made. In all these cases th°e actions are based upon acts which disaffirm the contract of bailment, and the bringing the suits is an election by the bailor to consider the bailment terminated; and this applies to an action on the case for a tort which disaffirms the contract, the same as to trespass or trover: the latter is indeed but a subdivision of actions upon the case.
We are brought then to the conclusion, that case will lie against an infant bailee for a positive and wilful tort of such a nature that, upon general principles of pleading, case is a proper remedy.
„ Whether such a cause of action exists here remains to be seen. The declaration does not state such a cause. It states a bailment of the horse to defendant, and that he drove him so carelessly and immoderately as to cause his death. This we think does not go far enough to charge an infant bailee. It indeed goes no further than to charge him with what is in substance a breach of contract, and to that the plea of infancy is a good defence. In this respect it comes within the principle of Jennings v. Rundall, 8 T. R. 335, before cited. It is true that the immoderate driving may have been a positive and wilful act so as to make the infant liable; but we think that unless it is so stated, the plea of infancy is a good defence.
If the facts will justify it, the plaintiffs may have leave to amend their declaration upon terms, which will be the costs of demurrer. Whether the facts will justify such an amendment of the count in case as will support it, remains to be seen. That a count in case might under some circumstances be the appropriate remedy, may be inferred from the case of Gilson v. Fisk, 8 N. H. 404, and the cases cited, as well as the case of Waterman v. Hall, 17 Vt. 128, and numerous cases where it is held *242that a party may, at his election,* sue in trespass, or waive the trespass and sue in case.
Under some circumstances trover would lie as we have seen, and as case and trover may be joined, there would seem to be no objection to adding a count in trover by way of amendment if the identity of the cause of action would be preserved.
As it now stands, the conclusion is, the
Demurrer must be overruled.
See Woodbury v. Woodbury, 47 N H. 22, 23. Reporter.