#### Inge v. Bond & Slaughter.

From Warren.

“In action for deceit, in the sale of an unsound negro, the declaration slated a false affirmation to have been the means by which PlaindiT was induced to make the bargain ; and the making such affirmation with a knowledge of its untruth constituted the gravamen: held that the action was conceived in case, on tort, and die declaration was held good.”

“ In some cases, an affirmation, as to the title of a chattel, where the seller is in possession, is a warranty as to title ; but as to soundness, an affirmation does not amount to a warranty, unless it appear on the evidence to have been so intended.”

Case. — The declaration contained two counts; the first charged, that whereas, Francis Inge bargained with John Bond, to buy of him a certain negro man slave, named Harry; “ and the said John Bond and Ebeiezer Slaughter well knowing the said negro man si ave Harry, to be' infirm, unsound, and afflicted with a disease of the liver, by then and there wrongfully, falsely, and ieccitfully affirming the said negro slave Harry to be smnd and free from any disease whatever, then and thert, procured a sale of the said negro slave Harry, to thf said Francis Inge, for the sum of §400 ; winch said nego slave Harry was at the time he was sold, and from tlat time, to the ■time of his death, continued infirm, unstund, and afflicted with the aforesaid disease of the live» to wit, at &c. and so, the said John Bond and Ebeiezer Slaughter, falsely and fraudulently deceived the sail Francis Inge, &c.” •

The second count charged, that 44thesaid John Bond and Ebenezer Slaughter, intending todeceive and defraud the said Francis Inge, did wromj'uliy and deceitfully advise and persuade the said Frajcis Inge to buy of the said John Bond a certain negro san slave Harry, *102for the sum of §400, and did then and there, for that purpose, falsely affirm to the said Francis Inge, that the said negro slave Harry was sound and free from any disease whatever, and did thereby deceitfully procure the said Francis Inge to buy the said negro slave Harry, of the said John Bond, at the price and for the sum of $400 aforesaid; aud the said Francis Inge avers, that confiding in the said affirmation of the said John Bond and Ebenezer Slaughter to be true, and not knowing to the contrary, he did afterwards, to wit, &c. purchase and buy the said negro man slave Harry, at the price and for the sum of $400 as aforesaid, which sum he paid to the said John Bond accordingly: whereas, in fact, the said negro slave Harry, was at the time of making the affirmation aforesaid, of the said John Bond and Ebenezer Slaughter, net sound and free from disease ; but was infirm, unsound, and afflicted with a disease of the liver, and that the said John Bond and Ebenezer Slaughter, well know tin same, viz. at, &c. and the said Francis Inge furtier says, that said negro slave Harry, from the thru of the sale aforesaid, to the time of his death, continicd infirm, unsound, and afflicted with the said disease ol the liver, &c. and so the said John Bond and EbenezerSlaughter falsely and fraudulently deceived the said Fríncis Inge, &c. wherefore, &c.

A bill of sah was given for the negro, which contained no warranty of soundness; and if was in evidence that Bond expresly refused to sign a bill of sale containing such warrany. There was also, evidence given below of repeated conversations as to the soundness of the slave; but all these toolplace before the execution of the bill of sale.

The Judge charged the Jury that, to entitle the Plaintiff to recover, it vas necessary that the evidence should satisfy them that the Defendants, or either of then, had a knowledge of tb unsoundness of the negro, and failed to disclose it, at te time of the sale. The Jury found a *103verdict against Bond, and for Slaughter; and a new trial' hat ing been refused Bond, he appealed to this Court, from the judgment rendered against him.

. The case was argued by Hogg for appellant, and Hill-man contra.

Taylor, Chief-Justice.

The first count in the declaration charges, that the Defendants, knowing the slave to be unsound, by a false affirmation of his soundness procured a sale of the slave to the Plaintiff. The second, charges, that the Defendants advised the Plaintiff to buy the slave, and falsely affirming him to be sound, procured the Plaintiff to buy him, whereas they knew the slave to be unsound. In both counts the false affirmation is stated to be the means by which the Plaintiff was induced to make the bargain, and the making that affirmation, with a knowledge to the contrary, whereby the Plaintiff was injured, constitutes the cause of action. The action is clearly conceived in case, on tort, and the declaration as strongly marked with those features, as in the case of Pasley v. Freeman, (3 Term Rep. 51,) the foundation of which is fraud and deceit in the Defendant, and damage to the Plaintiff. The affirmation, as stated in the declaration, is not laid in the way of a contract, the breach of which has brought damage on the Plaintiff, but as a deceit practised upon him, whereby he was induced to make the contract. In some cases, it is true, that an affirmation, as to the title of a chattel, when the seller is in possession, will be considered as a warranty, for as to the title, tiie law itself implies a warranty; and even without such an affirmation, if a man sell goods as his own, and the title prove deficient, the buyer may recover Satisfaction. — (2 El. 451.) But as to the soundness of goods, an affirmation does not amount to a warranty, unless it appear, on the evidence, to have been so intended. In declaring on a warranty, the charge is laid in assumpsit, either warrantimndo vendidit, or he *104undertook and faithfully promised; but in this case there is nothing like a promise and undertaking. And what shews, beyond all controversy, that the. action was not ir,tcni^ to 011 a warranty, is, that a bill of sale was given without a warranty, and that Bond expressly refused to enter into one. That 'no contract existed, is farther evident from this,’ that whatever was said concerning- the soundness of the slave, was before the sale, and the true contract, of the parlies was reduced to writing byr the bill of sale, to which no other terms or stipulations can be added. “1 hold,” says one of the Judges, “that if a man brings me a horse, and makes any representation whatever of his quality and soundness, and afterwards we agree, in writing, for the purchase of the horse, that shortens and corrects the representations ,* and whatever terms are not contained in the contract, do not bind the seller, and must be struck out of the case.” — (4 Taunton, 786.) But if there is any fraud in the case, that cannot be done away by the contract, and the buyer may, notwithstanding, bring ’his action on the case, which is the only one that could be brought in this case. It, therefore, seems' to me, that those authorities do not apply, which go to shew that a breach of contract cannot be converted into á tort, for, in all of them, there was a clear contract; and, in the leading ones, the Defendants had a joint ownership in the property. I do not think that it was, in the least degree, necessary that it should he left to the Jury, to say whether the affirmation, stated in the declaration, was made by the Defendant or not, since it was merely inducement and introductory to the gravamen, which is the fraudulent concealment of a defect in the slave; and, generally, where a person is sued, in tort, for knowingly selling an unsound article, the charge is laid either with a false affirmation of the soundness, or that the Defendant sold it for, and as, a sound article, or with a false warrant ty, all which terms import the same thing, and are never *105held as making contract the gist of the action. As the Jury have verified the charges in the declaration. I am of opinion that the Plaintiff is entitled to recover, and that there ought not to be a new trial.

And of tius ovinrnn~ w~ e the othei J ti~1ges