This is an action on the case, for an injury, perpetrated, by means of a false warranty. The contract, and the breach, are described in the declaration, both of which must have been found to be true, by the jury, under the charge given by the court; which appears to us unexceptionable.
But the defendant insists, that the contract of sale and warranty by the defendant, cannot be true, under the proof, because of another fact admitted by the plaintiff to be proved, viz. that the defendant was not the sole owner of his sorrel horse. This, he says, constitutes a variance between the allegation and the proof. The plaintiff alleges, that the defendant owned his horse ; and the proof is, that he and another owned him. This claim is founded on the supposition, that what is alleged, as to title, is a description of the cause of action ; an essential part of the ground of recovery. We do not so consider it. On the other hand, we hold, that the title to the horse is not descriptive of the cause of action, nor in any way material to it; but mere surplusage, as much so as would be an allegation of the age, size or pedigree of the horse.
It can be of no importance whether the defendant, in truth, was the owner of the horse, or not. He sold it as his own ; he took the pay for it, as his own ; he impliedly warranted the *342as ^'S own > and this is enough to satisfy the material al-in the declaration.
We do not call in question the doctrine of the cases read by the defendant’s counsel; but we cannot perceive its application to the case in hand.
Besides, were it necessary, we should decide, that the defendant is not at liberty to deny his entire title to the horse, after his acts of exclusive ownership just mentioned.
We advise the superior court, that there is no error.
In this opinion the other Judges concurred.Judgment affirmed.