#### LEWIS CHAMBERLAIN v. HENRY J. ROBERTSON.

A count for a deceit in the sale of goods, cannot be joined with one in assumpsit on. a warranty of soundness.

Action of assumpsit, tried ‘before Manly, J., at the last Fall Term' of Washington Superior Court.

The plaintiff declared on two counts :

1st. For a cheat in the exchange of watch chains.

2ndly. For a false warranty of the defendant’s chain to be gold.

The proof was, that the defendant represented a chain, which he had, to be gold, and imposed it as such on the plaintiff!, and thereby obtained from him two gold chains of a less size, worth $35.

The defendant represented his chain -to he worth $50, but as it was inconveniently large and heavy, lie said he was willing to take $35 for it.

There was also proof, that the defendant’s chain was of brass, washed with gold, and worth at the rate of thirty cents per pound, and that the defendant bad knowledge of this.

The defendant contended that the action of assumpsit could not be maintained, but the Court ruled otherwise, and the defendant’s counsel excepted. In this Court it was further contended, that the two counts were inconsistent.

The Court below laid down the rule of damages to bo the difference between the value of the chain as it was represented to be, and the value as it was.

Yerdict and judgment for the plaintiff, and appeal by the defendant.

No counsel appeared for the plaintiff in this Court.

Hines and Winston, Jr., for the defendant.

Manly, J.

The Court is of opinion the form of action adopted in the case, is not the proper one.

Upon an examination of authorities, it will be found, the *13earlier mode of redress, in such cases, was the action upon the case, in tort. This was used to redress- warranties broken and deceits, indiscriminately, and was the action resorted to when the pleader desired to count upon both a warranty and a deceit. About the close of the last century, the practice- arose of declaring in assumpsit upon warranties, in order to add, what are called, the money counts, which, in many cases, might prove of service. But no case can be found, it is believed, where, in that form of action, a count for a deceit was added.

These principles seem to be established by the case of Williams v. Allison, 2 East Rep. 446, and the case in our own Reports of Lassiter v. Ward, 11 Ire. Rep. 448.

The history of the form of action for false warranties and deceits, led the Court below into error. "When the form was changed from tort to assumpsit, for cases of false warranty, it was supposed the latter form might also be applied to cases of deceit, arising out of contracts between the parties; — that in such cases, it was at the option of the pleader to use assumpsit or case at will, and' he was not restricted to case except for deceits unconnected with any contract between the parties (as for falsely representing a person to be worthy of credit.) The language of the elementary writer, Mr. Ohitty, whose work has been consulted, is not inconsistent with this view; 1 Chitty’s Plea. 139. But no precedent or case being found of such extended use of the action of assumpsit, it would seem to be inconsistent with established rules of pleading, and therefore illegal. It will follow, the two counts, as in the declaration before ns, cannot be joined.

No error is perceived in the rule of damages laid down by the Judge below; but as the action has been misconceived, there must be a venire de nova.

Pick Curiam,,

Judgment reversed.