The decision of the court below was correct. The declaration was agreeable to the precedent in Stuart v. Wilkins ; (Doug. 10.) and that applies when ■the plaintiff sues for a breach of a warranty ; and it is the modern mode of declaring on a warranty, instead of the ancient form of warrantizando vendidit. But when the plaintiff does not go for a breach of contract, but grounds his action on deceit and fraud in the sale, the fraud must be averred and charged, as a substantive allegation. To *142admit the proof of it, without such averment, would be going wide of the issue, and taking the party by surprise. To justify the proof offered, it ought to have been charged, that the defendant falsely and fraudulently represented the horse to be gentle, &c. and that he knew him to be vitious, &c. There is no case which permits a plaintiff to establish deceit and fraud, when he declares only in assumpsit, on a warranty, express or implied. There are indeed actions of assumpsit, which are founded upon a breach of duty, and partake of the nature of counts upon a tort. (5 Bos. and Pull. 366. 370.) The case of Hallock v. Powell, (2 Caines’s Rep. 216.) was an instance. The two counts in that case (and which I have since particularly examined) were for deceit. The one in warranting a distempered horse to be sound, and the other for a like deceit, in promising that he was sound. The gist of the action, then, was the deceit, and not the contract. Here it is otherwise. It is plain that a breach of contract, and not fraud, is the gravamen complained •of and, consequently, the evidence of fraud, which was offered at the trial, was properly overruled, and the judgment must be affirmed.
Kent, Ch. J. Thompson, J. and Yates, J. were of the same opinion.
Spencer, J.The court below considered the declaration as on an express warranty, and rejected the proof which went to show, that the defendant had been guilty •of fraud in the sale of the horse. The case of Stuart v. Wilkins (Doug. 19.) furnished the precedent of this declaration; and as I read the counts, they charge the •defendant with actual and positive deceit. In the case cited, there was proof of an express warranty; and on doubt being raised whether, in such a case, this was a proper form of action, it was held that it was. In delivering the opinion of the court, Lord Mansfield oh-1 *143served, that this sort of declaration, where a warranty is to be proved, (he was told by Ashhurst and Bailer, Justices,) had been practised for twenty years ; and that it is made use of with a view to let in both proofs, if necessary. And Butter, J. in giving his opinion, states, that this mode of declaring had been in use ever since he knew any thing of the practice. It is supposed that Lord Mansfield, in speaking of both proofs, meant proof of an express and an implied warranty; but this cannot have been his meaning, for he had just said, “ that selling for a sound price without a warranty, may be the ground for an assumpsit; but in such case it ought to be laid, that the defendant knew of the unsoundness.” In the declaration before him, it was not alleged that the defendant knew of the unsoundness, and so, according to his rule, it could not embrace the case of an implied warranty, merely from the soundness of the price, and by both proofs he must have meant' proof of an express warranty, and proof of a representation amounting to a promise. In the case of Hallock v. Powell, (2 Caines, 216.) one of the counts was Mon assumpsit, like the present, and the other on a warranty, and this court held, the gist of the action was a deceit.
As I understand the objection, it is, that the declaration does not aver that the defendant knew the horse was different from his representations of him, the want of which averment is considered fatal. I repeat, that it cannot be said that the declaration does not allege that the defendant deceived the plaintiff’s testator in two essential qualities of the horse, his age, and his being gentle in harness. The case of Bayard v. Malcolm, (2 Johns. Rep. 550.) is in point, that the sciens of the defendant is matter of evidence, and need not be averred; the declaration, in that case charged the defendants with affirming the number of subscribers to the newspaper establishment sold, to be 900, and the profits to exceed 4,000 dollars per annum; and it alleged, 66 and so the *144plaintiff saith, that by reason of the affirmation of the the existence or non-existence of the deceit. It is true that case was after verdict, and the court intended that the plaintiff would not have recovered without proof of the fraud. In the present case the plaintiff offered the proof which went to establish the fraud; and he offered to prove what was intended to be proved in the case cited. That case, therefore, directly applies to the present; and although I was of a different opinion, I feel myself bound to assent to, and to uphold the judgment of the court of errors. defendant, he was falsely and fraudulently deceived.” xhe court for the correction of errors adjudged that this was a sufficient charge of fraud, and put in issue V
My opinion is, that the judgment below ought to be reversed.
Judgment affirmed.