This case came before the superior court on a writ of certiorari, and the superior court having sustained the certiorari and remanded the case for another hearing in the justice court, the plaintiff in error excepted and, assigns for error the judgment sustaining the certiorari. The suit was for a mule, wherein plaintiff in the justice court was non-suited on the ground that his testimony was insufficient prima facie to make a case to go to the jury. It seems that the horse was warranted to be sound, and the justice held that the action should have been upon the breach of warranty, and not in trover for the mule; but the evidence is to the effect that the plaintiff below was cheated and defrauded badly out of the mule, and hence no title passed under the-Code, and the repeated *700rulings of this court, and therefore the superior court was right in sustaining the certiorari, and awarding a new trial in the justice court. Code, §§2633, 2751, 3178.
Unquestionably the fraud which, under section 2633, voids a sale, and consequently does not permit title to pass, must be actual fraud, mixed with deceit and corrup. tion, and not merely legal or constructive fraud ; but in this case there is evidence to show such actual fraud, and the proper tribunal should have passed upon it, and the plaintiff should not have been non-suited. It is true that if there had ' been a warranty unmixed with such actual fraud, the plaintiff’s remedy would have been a suit on the breach of that warranty; but where there is actual fraud, so that no title passed, he had his remedy or his choice of remedies, either to sue for the property, the title to which never passed from him, or on the breach of warranty for damages. The superior court was right, therefore, to sustain the certiorari, and remand the cause for another hearing on the merits.
Judgment affirmed.