The facts show clearly that on the day when the cow was taken, there was no valid contract between the parties. The defendant obtained the possession of her by fraud, a fraud to which infancy would constitute no defence. Supposing no contract to have been made, the plaintiff then had the election to bring his action for the tort, or, as the cow had been sold before the note became due, to waive the tort and bring assumpsit.

In this case, however, there was a voidable contract made. But the contract had this peculiarity. It might be avoided by either party; by the plaintiff on the ground of drunkenness, and by the defendant on the ground of infancy.

*509Ordinarily, in the case of torts, it is in the election of the owner of the property wrongfully taken, to bring his action for the tort, or, waiving that, to bring assumpsit, and when he brings the latter, the defendant is estopped to say there was no promise and that he took the property wrongfully, or to set up his own fraud or wrong in defence of the suit.

In the case at bar, the contract needed a double affirmation to conclude the parties. The fraud or tort was merged in the contract, only when the contract had become complete. The plaintiff, by bringing his action upon the note, declared his willingness to affirm the contract. The defendant, on the other hand, still elected, as he had a right to do, to avoid the contract. This want of assent of the defendant is fatal, and the contract never becomes complete. The title to the cow did not pass. The tort was not waived.

If the defence to the action upon the contract had been one, which admitted its validity, and then sought to discharge it, as a discharge in insolvency of the defendant, payment, set off, or the statute of limitations, the judgment in the case would have concluded the parties. The contract being once complete, the plaintiff could not return to his remedy for the tort.

What was the effect of the new demand, it is not material to consider, as the facts show a conversion by the defendant before the demand was made, and the demand was therefore wholly unnecessary. Exceptions overruled.