In this case the 1st, 2d and 4th counts are in case for false warranty in the sale of a horse. The 3d count is in assumpsit, counting upon an express warranty. A general verdict was rendered for the plaintiffs. The case was tried upon the general issue; but the bill of,exceptions does not say on what form of plea. It is stated in the exceptions, that “ the whole case 'went upon the ground of an express warranty and the breach of it, and not upon the ground of a deceit.” By which we understand that the evidence offered went only to show that an express warranty, proprio vigore, was the sole ground of action and recovery.
Each count, except the ,4th, is in itself technically good and sufficient. The 4th count is clearly bad, for the reason that it does not aver the purchase of a'horse by the plaintiffs, which is necessary in order to show a consideration for the alleged warranty i The motion in arrest brings in question the validity of the verdict, as affected by its being general and covering the bad count as well as the. good. Without saying whether certain dicta in opinions in more recent cases have overruled and abrogated the law as declared by Bedeield, J., in Wood v. Scott, 13 Vt. 47, thus: “It is how too well settled to be brought in question that when one of the counts in a declaration is defective, and the verdict general, judgment will be arrested; ” and by Boyce, J., in Sylvester v. Downer, 18 Vt. 32, thus: “If that count (the 2d in the declaration then in question) was fatally defective after verdict, the motion in arrest should have prevailed, though other -counts not liable to the objection were *337covered by the verdict,” — citing cases in the 8thYt., 11 ib. and 13 ib.; and without saying whether, if the law in this respect is not abrogated, the case discloses enough to enable the court to refer the evidence and the verdict to the good counts only, we think there is another ground on which the motion in arrest should prevail, viz.: the misjoinder of counts.
The first two counts must be regarded as in case, sounding in tort. The reason and principle are well developed in the argument of the plaintiffs’ counsel, and the opinion delivered by Judge Paddock, in Beeman v. Buck, 3 Vt. 53.
The 3d count can be regarded only, and exclusively, as assumpsit on an express warranty. Only by force of an express warranty wotdd the plaintiffs be entitled to recover under that count. Deceit is not the gravamen of the count; and however strong a case of deceit might have been proved, still, without having proved an express warranty the plaintiffs would have been entitled to recover only under the 1st and 2d counts. This tests and shows the difference, and the distinction to be taken, between the 3d count and the first two counts. Though it is held, as a rule of evidence, that, under the warrantiaando vendidit, the plaintiff may recover on proof of an express warranty, without proving the scienter, on the ground that deceit would be implied from the broken warranty. Yet it has not been held, that, when the plaintiff should fail to prove an express warranty he could recover under such count, without proving affirmatively deceit and fraud in fact, in all their legal elements.
That case, sounding in tort, cannot properly be joined with counts, sounding in contract, is quite too elementary in one’s early professional readings to justify any remarks on the subject. The effect of such joinder of counts is very intelligibly expressed in Chitty’s Plead. 206, 9th Am. ed., in the following language.
“ The consequences of a misjoinder are more important than the circumstances of a particular count being ‘defective; for in the case of a misjoinder, however perfect the counts may respectively be in themselves, the declaration will be bad on general demurrer or in arrest of judgment, or upon error.” Several authorities cited in the margin would seem sufficient to preclude any doubt *338as to the correctness of the proposition in the text. Gould’s Plead, ch. IY. § 87, propounds the same rule of law, and eites several books of authority upon the point.
The charge of the court we think to be unexceptionable ; and we regret the existence of occasion for reversing the judgment on the motion in arrest. But it cannot be -regarded as unduly burdensome to the profession to be required, even in these modem days of improved light and knowledge, to accord to the cherishing mother of all good lawyership an occasional recognition of some of the old, and yet unrepealed rules of common law pleading. And in this connection I take occasion, for myself, to say, by way of protestation, that I think the rule, as to the effect of a bad count upon a general verdict, leaving such count with others that are good, “ still lives,” notwithstanding the gratuitous upbraiding it has received, obiter, from some judges. Such treatment may cast discredit upon the subject of it, but can hardly be regarded as authoritative in abrogation of well established principles and rules of law.
The judgment is reversed.