#### A. J. BLANTON v. HARTWELL WALL.

Where counts for a deceit and a false warranty arc joined in the same declaration, Held that the plaintiff might recover on the second count without alleging or proving a scienter.

This was an action on the oase, tried before Caldwell, J., at the Spring Term, 1857, of Butherford Superior Court.

The declaration in this case contained two counts, one for a false warranty, and one for a deceit. On the trial of the case, the plaintiff offered evidence tending to show that, in the exchange of horses, the defendant warranted the horse, traded to the plaintiff, to be sound, and a first-rate work nag.

The Court, among other things, charged the-jury, that, if they believed there was a warranty, the plaintiff was entitled to recover, if the horse was unsound at the time of the trade; that upon this count the plaintiff was not bound to provea scienter on the part of the defendant. To which charge the defendant excepted, insisting that it was necessary to prove a scienter on both counts.

"Verdict for plaintiff. Judgment and appeal by defendant.

*533 Qabcmiss and logan, for the plaintiff.

Baxter for the defendant.

Pearson, J.

The count for a deceit alleges a scienter, and it is necessary to prove the allegation in order to support the count. Put the count for a false warranty does not allege a scienter. The allegation is, that there was a warranty of soundness, and that the warranty was false, in this, that the property was unsound. So, the gist of this count is a breach of the warranty, and there is no ground upon which it is necessary either to allege, or affirm, a scienter. Lassiter v. Ward, 11 Ire. Rep. 443. There is no error.

Per Cueiam. . Judgment affirmed.