*69The opinion of the court was delivered by
Strong, J.The liability of the defendant in this case is charged to have resulted from his contract as bailee. The declaration charges him with having neglected to perform the duty which his contract imposed upon him. It sets out the contract in full. Then follows an assignment of its breach. The engagement of the defendant is averred to have been, that he should safely keep, pasture, specially care for, and attend to certain horses of the plaintiff, for a reasonable compensation. The breach alleged is, that he “ conducted himself so carelessly, negligently, and improperly, and by his absolute misuse and abuse, in and about the keeping and pasturing, caring for, and attending to” the horses, that they were injured. This is the substance of both counts. The declaration may, therefore, without any'violent construction, be treated as one in assumpsit. That proper care is averred to have been the duty of the defendant under the contract, does not necessarily make the declaration sound in tort. Every action of debt is based upon an alleged legal duty. Treating this as an action ex contractu, there was no error in permitting the change of pleas. In this view, it becomes unnecessary to inquire what, are 'the rights of a defendant in an action in form ex delicto, but founded on a cause of action for which assumpsit would lie.
The judgment is affirmed.