The distinction that is recognized in legal proceedings between contracts and torts is founded in the nature of things, and is important. • The system of special pleading regarded it with great strictness, and our present system adheres to it. Its utility is, that it gives the opposite party notice of what is claimed against him.
Accordingly, when a vendor is sued for making statements, in respect to the quality of the article sold by him, which are not according to the truth, if the vendee desires to charge him in tort he alleges that a false representation was made by him; but if he desires to charge him in contract he alleges a promise that was broken. To allege a contract he uses the word “ warranted,” or “ promised,” or “ undertook,” or “ agreed,” or some equivalent word. To allege a tort he uses the phrase “ falsely represented,” or something equivalent to it, implying fraud. But the word “ represent ” does not import a promise, and does not give notice to the opposite party that a mere promise is relied upon. On the contrary, it gives notice that a fraud is alleged, and that the pleader has taken upon himself the burden of proving a scienter. The rulings in this case are in conformity with this distinction. Exceptions overruled.