I concur in the opinion of the Attorney General, that the judgment of the supreme court pught to be affirmed.
*573The majority of the court being of opinion that the judgment ought to be reversed, it was, thereupon, ordered and adjudged, that the judgment rendered by the supreme court be reversed, &c. (a)
Judgment reversed.
Where the plaintiff grounds his action on deceit or fraud in the sale and not on a breach of contract, the deceit or fraud must he substantially alleged in the declaration ; otherwise no proof of fraud is admissible. The executors of Everston v. Mills, 6 John. Rep. 138. After verdict a declaration may he amended on terms to conform to the proof. Hull v. Turner, 1 Wend. 72.