I concur in the opinion, that thejudgment must be arrested. The action is not founded upon a warranty or breach of contract. There is no warranty alleged in the declaration, either in the ancient form of 'loar rant izando vendidit, or in the modern manner of declaring in assumpsit. Nor could any parol warranty have been shown, if the suit had been brought upon one, for the contract being reduced to writing, excluded all anterior verbal negotiations and promises, as being resolved into the writing, which is the consummation, and only evidence of the agreement of the parties.
We must therefore considerthe declaration as grounded entirely upon deceit or fraud in the sale, and it must be tested by the rales which apply to, and govern that species of action. As fraud is the gist of the action, it must be *468a substantive allegation. The declaration must state that the defendants deceitfully, or fraudulently, or knowingly, made the false affirmation. The averment merely of an affirmation which was not true(, is not sufficient. The defendants must be charged expressly with the fraud because it is the fraud only which makes them responsible. 1 he case of Harvey v. Young, (Yelv. 21.) is very analogous to the one before us. s he defendant was charged with having affirmed, in a discourse with the plaintiff, that a certain term for years was worth £150; upon which the plaintiff purchased it for that sum, and it turned out not tobe worth _£lOO, upon which the plaintiff sued the vendor, in pn action on the case for the deceit, and alleged that he gave faith to fhe assertion, and made the purchase, and that the bargain turned out in fraud and deceit of him. After verdict, the defendant moved in arrest of judgment, because the matter precedent did not prove any fraud, for it was but the defendant’s bare assertion. The event of the motion is not stated in Yelverton, but from the notice taken of the cáse, in i Lev. 102. 1 Sid. 146. and in 1 Viner, 563. pl. 19. note, it is evident thatthe motion is considered as having beengranted. The case of Chandelor v. Lopus, (Cro. J. .) is also to this effect. There is some little variation in the books in respect to this case, but they all seem to concur in considering it as having established this position, that in an action for selling a precious stone, as a bezoarstone, when it was not such a stone, the declaration must state either that the defendant warranted it tobe a bezoarstone, or that he knew it was not, and that stating simply that the defendant affirmed it to be a bezoar-stone is not sufficient. (Cro. J. 469. The marginal note to Dyer, 75. a. 2 Rob. Rep. 5.) The case of Ekins v. Tresham, (1 Lev. 102. 1 Sid. 146. 1 Keb. 510. 518. 522. S. C.) goes in confirmation of the same doctrine. It was an action on the case in the nature of deceit, for that the defendant, in a discourse between him and the plaintiff, falsely and fraudulently affirmed the rent of a house to be worth £43 a *469year, and that the plaintiff giving faith thereto, purchased, while in fact the rent was but a year. After verdict the defendant moved in arrest of judgment, and that motion was denied, on the ground which Twisden took, thatfraud'lienter was, at least after verdict, equivalent with sciens, and Jones said, u the fraudulenter intendens to deceive the plaintiff was insignificant, but. it was further fraudulenter asseruit." It would be easy to multiply authorities to the same point, as the doctrine which these cases establish is supported by the whole current of precedents and decisions. (Cro. J. 196. 3 Lord Raym. 31. Buller's N. P. 30. Dougl. 20. 2 East, 446. 448. note, and 450. note. Plac. Gen. 18. Clifton's Ent. 935, 936, 7, 8. Brownlow, 80. J I have not been able to meet with a case or precedent in an action for deceit, where the affirmation of the defendant is not directly or expressly charged to have been made fraudulently or scienter. There are cases, indeed, in which the plaintiff goes upon the implied warranty of ownership upon the sale of a chattel, when'the fraud need not be alleged, but all these cases of implied warrranty are those in which the title of the vendor proved defective according to the distinction stated in the case o: Defreeze v. Trumper.* and in these cases the simple affirmation of the defendant is sufficient, as was observed by the court, in Medina v. Stoughton,† and again in Crosses. Gardner;‡ yet even in these actions for failure of title and brought upon the implie i warranty, the pleader has sometimes added the allegation of fraud or deceit, as was done n the case last cited, by the words falso et malitiose ajfrmabat; and by thus confounding the action on the implied warranty with the action for the deceit, some confusion- has been introduced into the precedents on this subject. (Stiles 310. Book of Assises 42. plf. 8. Clift. 933.)
I conclude, from this review of the cases, that the rule of pleading is clearly and firmly established, that where the gravamen is laid upon the deceit, that deceit must be expressly averred, and that there is no such averment in the present case. The declaration states a colloquium, and *470^le defendants did affirm, and that the plaintiff gave faith to the affirmation, and made, the contract ; and then follows the averment that the facts were not true, as they 1 had been affirmed, and that the plaintiff, by reason thereof, had been falsely and fraudulently deceived. The fraudulent deception is laid merely as inference from the affirmation. It forms no part of the premises. It was not requisite to have been proved upon the trial, and according to the observation in one of the cases already cited, it was insignificant matter, and cannot, therefore, supply the want of a charge that the defendant fraudulenier, or deceptive, or scienter, affirmed. The only remaining question, then, as it appears to me, is whether this defect in the declaration be cured by verdict, and here the general rule is, that a verdict will not cure matter which forms the substance of the action. It will aid a title defectively set out, but not a total defect of title. This is an elementary rule, and acknowledged throughout the books. (2 Salk. 662. Cowp. 826. Dougl. 683. 1 Term 145. 4 Term 472.) Serjeant Williams (3 Saund. 228. n. c.) has industriously collected and arranged the cases on this subject and he draws this general conclusion, that “ if the plaintiff states “ a defective title, or totally omits to state any title, or “ cause of action, a verdict will not cure the defect, for the “ plaintiff need not prove more than what is expressly sta- “ ted in the declaration, or is necessarily implied from the t6 facts which are'stated.” In the present case, the fraud was not a necessary inference from the premises. The affirmation may have been untrue, and yet innocently made. The scienter was not requisite to have been proved upon the trial, because not charged, and, therefore, we are not to presume it to have been proved. This presumption is only extended to matter which must, of necessity, have been given in evidence to the jury. (T. Raym. 91. 487. 1 Lord Raym. 392. Salk. 211.) The deceit was the foundation of the action ; it ought to have been averred, and the verdict will not cure the omission of it. This was so ruled in *471Buxentine v. Sharp; (2 Salk. 662.) and is agreeable to the opinion of Lord Mansfield, in Rushton v. Aspinall. (Drug. 683.) To dispense with the rule, would be a dangerous relaxation, and might lead to the loss of certainty and precision in pleading. General rules will sometimes appear harsh and rigorous, in their application to particular cases; but I entertain a decided opinion, that the established principles of pleading, which compose what is called its science, are rational, concise, luminous, and admirably adapted to the investigation of truth, and ought, consequently, to be very cautiously touched by the hand of innovation.
Judgment arrested.
2 Cro. 630. Doug. 20. 2 East, 451, 2.
5 Viner, 517. pl. 26. 2 Caines, 161.
Ante, 274.
1 Ld. Raym. 593.
Carthew, 90.