This was an action brought by Wells against Glasscock, in the County Court of Williamson, to recover *Page 263 damages in consequence of a fraud alleged to have been committed in the swap of horses.
The declaration contained two counts, — one stated that "the said Glasscock then and there well knowing the said gelding to be unsound and blind, and laboring under and affected with certain other distempers, by warranting the said gelding to be sound in all respects then and there falsely and fraudulently bargained, c."
The second count stated that "the said George well knowing the said last-named gelding to be unsound and laboring under divers distempers and disorders, to wit: the want of eyesight, then and there falsely and fraudulently affirmed the said last-mentioned gelding to be sound in all respects." The breach assigned in both counts, is that the horse was blind.
To this declaration, the plaintiff in error pleaded not guilty; and at the January session, 1808, the cause came on for trial. During the course of the trial, Glasscock tendered a bill of exceptions to the opinion of the Court, stating in substance, "that Wells had offered to read in evidence, the deposition of a certain Francis Henderson; and in order to authorize the reading thereof, proved by the oath of a witness, sworn for that purpose, that ten days' previous notice had been given to the said Glasscock to attend the house of George Hulme, Esq., on the day on which the deposition appears to have been taken. Also an order made at the October session of said Court, in the following words, to wit: "Dedimuspotestatem for plaintiff, — notice thirty days." And offered to prove by the oath of David M'Ewing, Esq.; justice of said Court, that by an order of said Court, made at the last return, not appearing on the record, but ten days' notice of the time and place of taking said deposition was required; and also, that the said deposition was, in fact, taken at the house of George Hulme, Esq. Whereupon, the counsel for the defendant objected to the proof of said order: and further, that the place of taking ought to be established by the certificate of the commissioners taking said deposition; but the said Court overruled the objections, *Page 264 received the evidence offered, and permitted the deposition to be read to the jury. To which opinion, c."
Another bill of exceptions taken by Glasscock, stated, "that on the trial of the cause, to support the issue on the part of the said Wells, it was proved by the oaths of Rhodian Doe, Thomas Berry, John Barr, Richard Willett, and Isaac Mains, witnesses for that purpose sworn in open court, and by the deposition of Francis Henderson hereto annexed, marked (B), that said plaintiff did, on or about the time mentioned in the declaration buy of said defendant a certain gelding; and that said defendant, well knowing said gelding to be blind, did falsely and fraudulently affirm and warrant that said gelding had good eyes, and could see as well as the said Glasscock; and had as good eyes as any horse; and proved that said gelding was blind: though it was not proved that the said Glasscock warranted the said horse to be sound in all respects, as set forth in the first count of said declaration; or that he affirmed him to be sound in all respects, as is set forth in the second count of said declaration. Whereupon the said defendant, after cross-examining the witnesses aforesaid, moved the Court to instruct the jury that the said evidence did not support the declaration; but the Court refused, c."
A deposition of Francis Henderson; referred to in the bills of exception, states that he was present at the time Wells and Glasscock exchanged horses; that Wells asked Glasscock if the eyes of said horse were good, and that Glasscock answered, "they are as good as any horse's eyes." He further proved that after the delivery of the horse to Wells, he again asked Glasscock if the eyes of the horse were good, to which Glasscock answered that his eyes were his chap. Henderson also proved that the horse was blind.
A verdict and judgment being obtained in favor of Wells, Glasscock prosecuted a write of error to the Circuit Court, where the judgment was affirmed. The cause was then removed to this Court, by a writ of error, from the Circuit Court. *Page 265
The only errors assigned went to question the property of the several opinions contained in the bills of exception. It is averred in the declaration, that the defendant purchased of the plaintiff a horse; "who then and there well knowing the said horse to be unsound and blind, and laboring under, and afflicted with certain other distempers, by warranting the said horse to be sound in all respects, then and there falsely and fraudulently bargained," c.
In the course of the trial, the deposition of Francis Henderson was offered in evidence, which was objected to, as being illegally taken. The Court admitted it to be read to the jury, to which Glasscock's counsel excepted. Other testimony was given to the jury, as appears from the evidence of several witnesses. After the evidence on the part of the plaintiff was gone through, the counsel for Glasscock prayed the Court to instruct the jury that the evidence did not support the action; but the Court refused so to do, to which the then defendant excepted; upon which a writ of error was obtained. The Circuit Court affirmed the judgment of the County Court, from which a writ of error has removed the cause to this Court.
It is admitted in the argument at the bar, that the deposition of Henderson was illegally taken, and of this opinion was the circuit judge; but agreeably to his opinion, this made no difference, as the deceit was proven by other witnesses, who were sworn in the cause. On recurrence to the deposition of Henderson, it evidently appears that this testimony was material to the point in issue. In the other bill of exceptions, the aggregate meaning of the testimony on the part of the plaintiff, including Henderson's deposition, is stated. As the amount of the vivavoce testimony is not given separate from that contained in the deposition, it is impossible for the Court to say *Page 266 what points in the cause were proved by the viva voce testimony, and what was not. And as Henderson's deposition was pertinent to the issue, the Court can not say what effect it had with the jury. This was a matter which lay in their peculiar province. In order to enable the Court to see that the action was sustained, independently of Henderson's deposition, it must appear, either that the whole of the material facts sworn to by him, were admitted by the record to have been ascertained by other witnesses; or that the whole deposition was irrelevant. Now neither of these things appeared from the record. On this ground the judgment of the Circuit Court must be reversed. The facts disclosed in the other bill of exceptions, show that the Court did not err in refusing to instruct the jury that the whole of the evidence on the part of the plaintiff, did not support the plaintiff's action. The plaintiff in error insists that the evidence should correspond precisely with the allegations in the declaration; and for this purpose relied on 1 Johns. 96. In the sale of personal property there are two grounds on which an action can be supported, supposing such property to be defective, — first, an express warranty, though the seller be ignorant of the defect; secondly, where there is no warranty, but the seller knew of the defect, and did not disclose it on the sale. In this case there is an averment in the declaration that Glasscock knew the horse to be blind when he sold him; and though it be asserted that the defendant warranted the horse to be sound in all respects whatever, it ought not to preclude a recovery on evidence showing that Glasscock knew of the blindness, but fraudulently concealed it.
Though the terms of the declaration go beyond the proof, they still include it.
On the ground of the deposition being improperly admitted, and not on the other point, the judgment must be reversed, and the cause remanded to the Circuit Court to be tried.
NOTE. — The words "his eyes were his chap," on page 264, are the words of the original, — and further this deponent sayeth not. — ED.