14 R.I. 578 | R.I. | 1884
This is Case in tort for a false warranty in the sale of a horse, the horse being warranted sound and free from disease. The declaration alleges that the defendant made the warranty deceitfully, knowing that the horse *579
was diseased. The question raised by the exceptions is, whether the plaintiff is entitled to recover without proof that the defendant knew the horse to be diseased. We think he is on authority. An action on the case sounding in tort was the old remedy for a false warranty. In Williamson v. Allison, 2 East, 446, decided in 1802, Lord Ellenborough said that the remedy by assumpsit "had not prevailed generally above forty years." In Stuart v. Wilkins, 1 Doug. 18, decided in 1778, Lord Mansfield regarded assumpsit as a novelty and hesitated to sanction it. It is now well settled that either assumpsit or Case in tort is maintainable. It is also well settled that noscienter need be averred either in assumpsit or tort, and that if averred, being unnecessary, it need not be proved.Williamson v. Allison, supra; Gresham v. Postan, 2 Car.
P. 540; Brown v. Edgington, 2 M. G. 279; Holman v.Dord, 12 Barb. S.C. 336; Howe v. Fort, 4 Blackf. 293;Trice v. Cockran, 8 Gratt. 442; Lassiter v. Ward, 11 Ired. 443; Tyre v. Causey, 4 Harring. Del. 425; Schuchardt
v. Allens, 1 Wall. 359. See, also, Burgess v. Wilkinson,
Exceptions overruled.