Moore v. Eastman. is bailed to an infant, his infancy is a protection to him for any nonfeasance so long as he keeps within the terms of his bailment ; but when he departs from the object of the bailment it amounts to a conversion of the property; and he is liable, to the same extent as if he had taken the property in the first instance without permission. Towne v. Wiley, 23 Vt. 355. Every intentional act is necessarily a willful one, within the meaning of the law. People v. Brooks, 1 Denio, 457; Commonwealth v. Green, 1 Ashm. 299. T. P. Grosvenor, for respondent. When an injury is done in the exercise of the rights conferred by a contract of bailment, the plea of infancy is a defense. Green v. Greenbank, 2 Marsh. 485. The act must be wholly tortious; and it is well settled that a matter arising on contract cannot be changed into tort, in order to charge an infant by a change in the form of action. Tyler on Infancy, etc., 176; Penrose v. Curren, 3 Rawle, 351; Wilt v. Walsh, 6 Watts, 9. An infant is not liable in any way for a constructive tort or conversion in driving a horse elsewhere than where the contract of bailment allows, or in managing him negligently or unskillfully. Ib. See, also, Campbell v. Stokes, 2 Wend. 137. GILBERT, J. The complaint avers a wrongful taking of the horse by the defendant, and that, in consequence of his malicious, wicked and cruel treatment, the horse died. The defense is infancy, and that, at the time the alleged wrongful acts were committed, the horse was in possession of the defendant by virtue of a contract of bailment for hire; and that said wrongful acts occurred solely through the unskillfulness, indiscretion and want of judgment of the defendant, and not from any intentional or malicious or willful act or wrong on his part. The question is, what proof is requisite to a recovery upon such an issue. Acts, however aggravated, which merely establish a breach of the contract on the part of an infant manifestly are insufficient. The plaintiff cannot convert any thing that arises out of a contract with an infant into a tort, and then seek to enforce the contract through the medium of an action ex delicto. There must be a tort independent of the contract. The authorities all agree upon this principle. In Jennings v. Rundall, 8 T. R. 335, it was held that when a boy hired a horse, and injured it by immoderate driving, this was only a breach of contract for which he was not liable. So in Moore v. Eastman. Green v. Greenbank, 2 Marsh. 485, the court of common pleas, in England, held that an infant was not liable to an action for falsely and fraudulently deceiving the plaintiff in an exchange of horses, because the deceit was practiced in the course of the contract. The principle of these cases was unanimously approved by the late court for the correction of errors in Campbell v. Stokes, 2 Wend. 143, which was an action of trespass for misusing a mare hired by the defendant, who was an infant. It was held, in that case, that a bare neglect to protect the animal from injury and to return it at the time agreed upon, would not subject an infant to an action of trespass; but that the infant must do some willful and positive act which amounts to an election, on his part, to disaffirm the contract; that if the infant willfully and intentionally injured the animal an action of trespass would lie against him for the tort; but that if the injury complained of occurred in the act of driving the animal, through the unskillfulness and want of knowledge, discretion and judgment of the infant, he would not be liable. The rule thus established has not been changed in this State to my knowledge, but, on the contrary, has been repeatedly recognized and approved. People v. Kendall, 25 Wend. 399; Sanders v. Leavey, 38 Barb. 75; Robbins v. Mount, 4 Robt. 461. What then is the willful and positive act which amounts to an election to disaffirm the contract? Certainly such an election cannot be predicated of a use of the animal in the course of the bailment, however excessive, unless the excess was such as to indicate that it was resorted to for a purpose beyond that for which the horse was hired. Nothing of that kind appears in the case. Instances of the kind of wrong that will make an infant liable are not wanting in the adjudged cases. See Burnard v. Haggis, 14 C. B. (N. S.) 45, where an infant hired a mare on the terms that it was to be ridden on the road and not over fences in the fields, and the infant lent it to a friend, who took it off the high road, and in endeavoring to jump the animal over a hedge transfixed it on a stake and killed it. Towne v. Wiley, 23 Vt. 355; Homer v. Thwing, 3 Pick. 492; Lucas v. Trumbull, 15 Gray, 307; Fish v. Ferris, 5 Duer, 49, where the infant drove the horse farther than the stipulated journey, or on a different one; and cases where an infant obtains goods by fraud and then refuses to deliver them up on the demand of the party who has been defrauded; or where he has been intrusted with them for a special purpose, and has perverted them to another purpose, may be taken as examples. They are all con Waid v. Gaylord. sistent with, and, at least, furnish a negative confirmation of the principle before alluded to, that a mere violation of a contract, though attended with tortious results, will not make the infant liable; but that to have that effect the act must be wholly tortious. In the case before us, taking the evidence on the part of the plaintiff alone, the defendant is fairly chargeable with only two or three acts of immoderate driving of the horse while performing the service for which he was hired, and with driving him when he was not in a fit condition to continue that service. There was no other basis for the inference that the injury to the horse was positive or willful. The question whether the injury was of that character, or was the result of indiscretion or want of skill and judgment on the part of defendant, was fairly submitted to the jury, and we think their verdict was correct. Several requests were made to the judge to modify his charge. One of them was that if the jury should find the horse was overdriven, and in a cruel and unusual manner, they might infer the intent from such cruel driving. This was properly refused, because there was no evidence of such cruelty. The other requests, though variant in form, presented merely the converse of the propositions embraced in the judge's charge, and, of course, were properly refused. The judgment must be affirmed. Judgment affirmed. WAID V. GAYLORD, appellant. Replevin - what is a sufficient levy to sustain. A levy upon the "right, title and interest" of the judgment debtor in goods is in law equivalent to a levy upon the things, and is sufficient to sustain an action of replevin in the cepit by the owner. APPEAL from a judgment entered on the report of a referee in favor of the plaintiff. The action was brought by Isaac Waid against Lewis Gaylord, sheriff, and Thomas Waid, to recover the possession of personal property. The defendant was sheriff of Oneida county. On the 18th of December, 1871, an execution issued upon a judgment VOL. IV, N. Y. REP.-6 Waid v. Gaylord. in favor of Clark Stewart against Thomas Waid, was placed in the hands of W. A. Matthewson, a deputy sheriff. He went to the residence of the said Thomas Waid (which was with his father, Isaac Waid, the plaintiff in this action), and inquired of said Thomas in regard to the ownership of the property in question. Being unable to ascertain whether Thomas in fact owned the property, he levied upon the right, title and interest of said Thomas in the property, and indorsed the levy in those terms on the back of the execution, and did nothing else. He left every thing just as it was, and did not then or afterward attempt to take possession of or remove any part of the property. He merely notified the said Thomas of what he had done. Subsequently Matthewson advertised the right, title and interest of Thomas Waid for sale. This action was brought by Isaac Waid, claiming to be the owner of the property so levied on, to recover the possession thereof, and the same was delivered to him and remained in his possession. The action was referred to a referee, who found that the property levied on all belonged to the plaintiff, and that Thomas Waid had no right, title or interest therein whatever. The defendant moved for a nonsuit on these grounds: 1. That the deputy only levied on the interest of Thomas Waid in the property. was never seized or taken by the defendant. demand of the property before suit brought. 2. That the property 3. That there was no The referee denied the motion, and found and decided as matter of law, that the plaintiff was entitled to judgment against the defendant, for the possession and retention of said property with costs. Judgment was entered accordingly. Southworth & Parks, for appellant. The action under the Code is a possessory action. The object of the proceeding is the recovery of the property in specie, and if at the time the action is brought the plaintiff has the actual possession, he cannot claim to have the property taken from the possession of the defendant and delivered to him. Code, § 208. The officer cannot take property which he finds in the actual possession and control of the plaintiff from the possession of the defendant who never had it. The action is based on the wrongful detention of the property, and such detention must exist at the commencement of the action. Savage v. Perkins, 11 How. 17; Roberts v. Randell, 5 id. 327; Elwood v. Smith, 9 id. 528; Brockway v. Burnap, 12 Barb. 347. To enable the plaintiff to Ray v. Rowley. obtain the possession of the property, pendente lite, he is required to make an affidavit, setting forth in the present tense, that the property is wrongfully detained by the defendant. Code, § 207. R. Carroll, for respondent. GILBERT, J. A levy upon the right, title and interest of the judgment debtor in the goods is in law equivalent to a levy upon the things. It amounts to a seizure of the goods for the purpose of selling the whole or a qualified interest therein. Such an act is sufficient to sustain an action of replevin in the cepit by the owner. Knapp v. Smith, 27 N. Y. 281; Latimer v. Wheeler, 1 Keyes, 475. The judgment must be affirmed. Judgment affirmed. RAY, appellant, v. ROWLEY. Jurisdiction of supreme court presumed. Evidence—judgment. Where a judgment, recovered in the supreme court, is offered in evidence, jurisdiction is presumed, and no proof is necessary. If such judgment is irregular, it can be set aside only on motion. It cannot be attacked collaterally, when offered in evidence in another suit. APPEAL from a judgment dismissing the complaint, entered upon the findings of the judge before whom the action was tried, without a jury. The action was brought in Niagara county by Joseph M. Ray against Salmon B. Rowley and others, and was in the nature of a creditor's bill. From 1868 to November 17, 1871, Annie E. Smith was the owner of a lot in the city of Lockport. During that time, the plaintiff advanced her money and materials and labor, in and about building a house on the lot, for which he obtained a judgment against her, in the supreme court, on the 6th of September, 1872, for $596.93, damages and costs. On the 17th of November, 1871, the said Annie E. Smith conveyed the lot, with the house thereon, to the defendant Rowley. The other defendants, Pomroy and Smith, are judgment creditors of Rowley. This action was commenced on or about the |