The opinion of the court was delivered by
The plaintiff below bought a horse from the defendant with an express warranty that he was sound and kind in harness. The jury found the warranty to be broken, and gave damages according to the plaintiff’s loss. On the law, so far as it applies to the merits of the case, there is no dispute. The only question raised here is a technical one. The declaration is in tort, and avers that the defendant induced the plaintiff to buy the horse by falsely and fraudulently warranting, &c. This mode of declaring in case upon a warranty was almost the exclusive practice. In later times it has been superseded to a great extent by the assumpsit form. But it is not obsolete. The precedent maintains its place in the books on pleading: (2 Chitty 139;) it is used frequently, (1 How. Miss. 288; 5 Tenn. 496; Doug. 19,) and has its advocates as being the better and safer mode : (6 Johns. 138.) No matter which form of declaration be chos.en, plaintiff may recover on an express warranty without either alleging or proving the knowledge of the defendant that it was false. A scienter need only be shown when the action is for deceit.
Judgment affirmed.