It is settled, that on a contract for the sale of property, an action of assumpsit will lie, on a warranty made at the time of sale, or an action of deceit for a fraud in the sale. And there are cases, where, from the fraud practised by a seller, the purchaser has a right to rescind and demand back the consideration paid. And. in such case it is always at the option of the purchaser, whether he will rescind the contract, or affirm it; and seek redress ' by an action of deceit or some proper action to recover his damages. But if the purchaser choose to put an end to tlfe contract, and in an action of indebitatus assumpsit to recover back the consideration paid, he must, in due time, offer the seller to rescind the contract, and demand a repayment of the purchase money.
In this case it does not appear that the plaintiff has ever offered to rescind the contract, or demanded a repayment of the purchase money. There is therefore no doubt, that, in this case, indebitatus assumpsit, either for money had and received, or for goods sold and *161delivered, cannot be maintained; arid the only question is, whether this is an action op the warranty to recover damages, or an action of indebitatus assumpsit to recover back the consideration. The Court give no opinion whether the declaration be good or Sufficient oñ éifher ground. But they think the declaration is to be' considered as in assumpsit on the warranty. The plaintiff properly gave evidence of the damages which he had sustained by the unsoundness of the horse which he received in exchange. — In doing this it was unavoidable to take into consideration what he gave in exchange" The motion for a new trial cannot prevail.
Van Ness theft filed a motion in arrest of judgment for the insufficiency of the declaration.