delivered the opinion of the court, January 2d 1877.
This action was commenced by summons. It was to recover for a breach of warranty on the sale of a horse. The declaration was in the form given in 2 Chitty’s Plead. 680, for deceit in case of a false warranty. No distinct averment is made therein that the vendor knew the guaranty or representations to be false. A rule of the court below requires the plaintiff in all cases to file a specification of the items of his claim and statement of facts necessary to support it, verified by affidavit. Under that rule the plaintiff below filed an affidavit. It contains no averment of fraud or deceit. It does not allege any intentional misrepresentation. It simply declares that he purchased on the strength of certain representations and guarantees, which he specifies. It then charges, that the horse is not sound as guaranteed and represented. The pleas were nonassumpsit, set-off, payment with leave, &c. On these pleas the case was tried. The parties tlnm treated the case as one of alleged breach of warranty on a contract. The defendant in error, having obtained a verdict and judgment, issued a capias ad satisfaciendum. The court granted a rule to show cause why the ca. sa. should not be vacated and set aside, but they discharged the rule. The issuing of the writ and the refusal to set it aside are assigned for error.
The first section of the Act of 12th of July 1842, Purd. Dig. 49, pi. 51, declares: “ No person shall be arrested or imprisoned on any civil process issuing out of any court of this Commonwealth, in any suit or proceeding instituted for the recovery of any money due on any judgment or decree founded on contract, or due on any contract, express or implied, or for the recovery of any damages for the non-performance of any contract, except in proceeding as for contempt to enforce civil remedies, actions for fines or penalties *413or on promises to marry, or moneys collected by any public officer, or for any misconduct or neglect in office,-or in any professional employment, in which cases the remedies shall remain as heretofore.” This section applies. only to cases founded on contract, but as we have shown this judgment was-founded on a contract, and is not within the exceptions enumerated in the act. This case is therefore brought within those provisions of the section which forbid arrest and imprisonment.
There can be no deceit in the sale of a chattel without a scienter : Staines v. Shore, 4 Harris 200. Whenever a party relies on a fraud it ought to be distinctly and particularly alleged: Groff v. Groff, 14 S. & R. 184. It was said in Clark v. Partridge, 2 Barr 13, the rule is founded on principles of justice which require that the party to be affected should have a full opportunity to meet and disprove the charge.
It is not enough to give notice of the facts intended to be proved, from which a jury may infer fraud. If this be requisite in a notice of special matter, much more will it be required in a declaration in which more precision is expected. Actual or intentional fraud was necessary to sustain the capias: Bokee et al. v. Walker, 2 Harris 139. Neither was averred in the declaration, nor in the affidavit of claim. Under the pleadings, it was not necessary to prove any fraud on the trial. The narr. shows a complete right of action wholly inconsistent with the good faith of the vendor of the horse. We will not assume any other issue was tried than the one found by the pleadings. That was one on contract only. It follows, therefore, the ca. sa. was improperly issued, and the court erred in not setting it aside.
Judgment reversed, and rule made absolute.