Opinion by
Junk in, B. J.This was an action on the case, the declaration containing several counts, some for a breach of fraudulent warranty of soundness and fitness on a sale of a horse, and some in deceit in representing both soundness and fitness, with srievtsr, and on trial plaintiff recovered as damages less than S100, and the question is, does the verdict carry costs? That depends on whether a justice of the peace had jurisdiction of the cause of action. That, ho had of the simple breach of warranty is undoubted, hut certainly not of deceit, for that is a tort. Then the question must turn on the right of the plaintiff to combine in the same action and declaration a claim for a breach of a contract, with one lor fraudulent representations amounting to deceit. If he can do this and gain thereby more than by the simple action of assumpsit, the only form of demand cognizable before a justice, then he should be permitted to select his forum without loss. It is really interesting to point out the anomalous character of this action. Notwithstanding the general rule that a suit in tort cannot be based upon contract, it. is settled by Williamson v. Allison, 2 East. 446; Jones v. Bright, 5 Bingham 533; Brown v. Edgington, 2 M. & G. 279; Schuhardt v. Allen, 1 Wallace 359, and our own case of Vanleer v. Earle, 2 Casey 277, that an action on the case lies for a breach of a warranty, without evidence of fraud or misrepresentation on the part of defendant. It is even commended for its advantage, because, if the plaintiff proves a warranty, and fails to show fraud, he may recover, because, after all the gist of the action is contract, and the allegation of fraud mere surplusage or aggravation» and if he fails in establishing the warranty, hut succeeds in proving wilful misrepresentation, he gains his cause on that *246ground. It seems to involve a two-fold operation, a sort of legal revolver, which gives the plaintiff two shots instead of one — in a measure, raking the field with grape and canister. In comparison with the action of assumpsit, it is as superior as the needle gun over the old flint lock. But it is a form of action well supported by authority, as may he seen in the 1st volume of Smith’s Loading Cases (Hare v. Wallace) pages 325 and 326, and the eulogistic opinion of our own Supreme Court, in its favor in Vanleer v. Earle, 2 Casey 277.
How, whilst a justice of the peace could have dealt with the contract feature of this agreement in assumpsit, he could have done nothing with the allegation of deceit; in short, one-half of the controversy was beyond his jurisdiction, and if the plaintiff was compelled or risk his costs, to sue before a justice, it would, in effect, place him in the field at a disadvantage, for, instead of bringing his whole force into action, one-half'thereof would be unemployed, which, in any contest, ifj a serious loss. It is thus perceived that the justice’s forum would be too contracted for this contest; the battle would be only one-half fought, which is against the policy of the law. The law delights in thorough and decisive work, inviting each side to do its best, and never pc;-.mits two battles where one will end the controversy. It follows, thus, that plaintiff having the right to sue incase, and try both warranty and the fraud in the same action, could, and was compelled to bring his action in the only court capable of dealing with the case as a whole, and hence recovers costs.- — Schuylkill Leg. Record.
NOTES OF REGENrI DECISIONS IN SUPREME COURI OF PENNSYLVANIA.
A devise to trustees to pay and divide income amongst - testator’s children in equal shares, and upon the death of each child-to pay the principal represented by his share of income to his children, if of full age, and if minors to pay *247the income during minority and tlie prinicpal upon their attaining twenty-one, creators a vested interest in the grandchildren. Unless a will contains an imperative direction to sell, irrespective of contingencies and independent of discretion, conversion of real estate devised to trustees with power of sale, will not take place until the sale is actually made. A. devised and bequeathed all of his estate to trustees inter alia, to pay the income in equal shares amongst his eight children, and from time to time as any one of them should “ die leaving lawful issue, such issue, if under lawful age, shall he entitled to receive the interest and income of tlicir parents’ share equally among them, if one, solely, and if more than one, in equal parts; and as they severally attain such lawful age, they are to receive and he paid their share and portion of the principal or capital fund of which their parent had received the interest, income, * * and those of any said children leaving lawful issue of lawful age, such issue shall receive and he paid the said principal or capital fund.But in case any of my said children should die without leaving such lawful issue, then and in that ease the share and part of such child so dying, as well the real as the personal estate, shall lapse and fall back into nay estate. ■* And in order to enable m3' said trustee to pa}' off and settle any of the shares and portions of my estate which may from time to time become due and payable on the decease of any of my said children, it shall and may he lawful for them, my said trustees, to -take any of the unappropriated funds of my said estate, or to sell any of ni}’ real estate for such purposes, and in order to arrive at the value of an}’ such share at the time of the decease of an}' sncli child or children, it shall be lawful for the said trustees, or the survivors or survivor of them, with the child or children if of lull age, and the next friend or guardian of such as may be under age, mutually to choose a judicious and disinterested citizen, and these citizens, if an even number, to choose another, * * who upon being duly qualified shall ascertain the value of such share or portion, * * and a due record thereof made or being *248confirmed by .said Court, any of my said children shall be at liberty to take the same at such valuation, * * and if none of them will accept thereof, * * then and in such case the same shall be sold by my said trustees, * * and with such funds to pay and satisfy the person entitled to such share, his or her portion thereof.” One of the testator’s sons died intestate, leaving a daughter who subsequently died a minor:
Held, That her interest was vested.
Held also, That there was here no equitable conversion of the real estate, and that her portion descended to her heir. — Peterson’s Estate.
Clear and precise parol testimony oí what occurred at the execution oí a written instrument, is always admissible to contradict, vary, or oven avoid that instrument, where it is proved that but for the oral stipulation it would not have been executed; excepting only in the case of negotiable paper. A. executed his bond and mortgage to B. who assigned it. to C.; C. subsequently died; in suit brought by B. to the use of C.’s administrators against A.:
Held, That parol testimony was admissible to prove that the bond and mortgage had been executed on the understanding that there would bo no personal liability.
Held, however, further, that the suit being in reality by an administrator, A. was incompetent to testify. — Hoopes vs. Beale.
Although the contingency be not expressly provided for by Act of Assembly, it is clearly within the spirit of the Act that, when a tie vote is returned, either part}' may contest. In the event of a tic vote, and contest by one candidate the proceedings are against,and notice thereof is to be given to the other candidate. The incumbent holding over, although indirectly interested, is in no wise a party to the contest. — Erdnan vs. Barret.