If the plaintiff sought to recover damages for a deceitful representation not noticed in the written contract, he should have sued in case. If the written contract may be construed to amount to a warranty that the negroes were subject to the lien of the mortgage, the first count is too defective in form to be considered a special count in assumpsit upon the warranty; and the general counts could not be maintained (even if money instead of a negro had been paid for the assignment,) without proof of an offer to return the bond and mortgage, or of some other act which might amount to a rescisión of the contract. The motion is dismissed.
Richardson-, O’Neall, Evans, Butler and Frost, JJ. concurred.