¶1The opinion of the Court was delivered by
¶2On 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.
¶3On 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.
¶4The motion for a new trial must therefore be refused.