#### JACOB LASSITER vs. HYRAM WARD.

in an action on the case, a count in deceit, for knowingly misrepresenting tile soundness of a chattel, may be joined with a count for the breach of a Warranty of the soundness of the same chattel.

Appeal from the Superior Court of Law of Montgomery County, at the Fall Term 1850, his Honor Judge Battle presiding.

This is an action on the case in tort, and the declaration contains two counts. The first is in the usual form fora deceit in selling the plaintiff an unsound horse, by falsely representing him to be sound, he, the defendant, then and there knowing him to be unsound ; and the second, for a false warranty of soundness of the horse. Plea, not guilty. On the trial, the evidence was, that the defendant warranted the horse to be sound, and that be was in fact not sound. The counsellor the defendant then insisted, that the plaintiff could not recover for want of proof, that the unsoundness was known to the defendant. But the Court held, that the plaintiff might recover on the second Court without- proving a scienter. The jury gave a verdict for the plaintiff, and the defendant moved for a venire de novo, on the ground of error in the opinion of the Court, which was refused. A motion was then made in arrest of judgment, upon the ground, that the two counts could not be joined. That was also refused, and judgment given on the verdict, and the defendant appealed.

Winston, Sen-, and Miller, for the plaintiff.

Dargan and Mendenhall, for the defendant.

*444Rijffin, C. J.

Though one would expect; assumpsit to be brought on a warranty of goods, as well as any other parol contract, yet it is, comparatively, a recent thing that it was brought in such cases. Its propriety seems to have been questioned as late as the cases of Stewart v. Wilkins, Doug. 18 ; and it cannot be said to have been judicially settled earlier, though the action had been sometimes brought. It was questioned on the ground, that the action on the case in tort was the established remedy, and, therefore, the proper one. It was, however, held /that either of the actions would lie upon an express warranty. Afterwards it was atempted to give another turn to the matter in the opposite direction, namely, by contending that assumpsit was the peculiar remedy on a false warranty, and that the declaration could not be in tort, unless it alleged a scienter; which was as much as to say, that the action on the ease would not lie on the warranty, but only on the cheat. Williamson v. Allison, 2 East 446. But there were so many precedents of actions in tort for a false warranty, as to shew clearly, that it had been formerly the common remedy, if not the only one, in use, and to induce the Judges to sustain it. It was, according!}', there hold that the declaration might be in tort without alleging a scienter, and, if it be alleged in addition to the warranty, that it need not be proved. The doctrine of the case is, that,'when there is a warranty, that is the gist of the action, and that it is only when there is no warranty that a scienter need be alleged or proved. , It is nearly half a century since the decision, and during that period, the point has been considered at r est, and many actions have been brought in tort, as well as ex contractu, on false warranties. 1 Chit. Pl. 956, 429, 2 Chit. Pl. 279. There is no doubt as to the propriety of joining the two counts ; for, it is an action on the case, and the counts, being both in tort, are compatible. If it were otherwise, it would not be material in this case, *445as the evidence applied to the second count, and the instructions to the jury referred to it alone, and therefore the verdict might be amended by entering it on that count only. West v. Ratlidge, 4 Dev. 31.

Per Curiam. Judgment affirmed.