
    McLeod and Wife v. Tutt.
    Where a false and fraudulent warranty constitute the gist of the action, it is not necessary to prove a scienter.
    
    By electing [to sue in tort on a false warranty a party does not change the nature of his proof.
    IN error.
    This was an action on the case instituted by the plaintiff in error in Claiborne county, against the defendants, for the fraudulent sale and warranty of an unsound slave, named Amy. On the trial, the defendant requested the court to charge the jury, “ that to entitle the plaintiffs to recover, the jury must be satisfied that a scienter on the part of 'the defendant was proved, and that the defendant knew at the time of making the sale and warranty in the declaration mentioned, that the slave warranted to be sound, was unsound:” to which charge the plaintiff excepted.
    The jury found a verdict for the defendant below, on which a judgment was rendered. The plaintiff moved for a new trial on affidavit, setting forth the discovery of new and material testimony since the former trial; which motion was overruled, and the opinion of the court excepted to by the plaintiff’s counsel.
    Greenleaf, for plaintiffs in error.
    Holt, contra.
    
    Whether the court erred in its instruction to the jury, must depend upon the question whether the declaration be in form ex contractu, or ex delicto. Because if it be an action of deceit, which is in form ex delicto, it will at once be conceded, that the scienter is the very gist of the action, and must of course be proved. But, if, on the other hand, it be in form ex contractu upon the warranty of soundness, then, though the scienter be alleged, it will be treated as surplusage, and the plaintiffs were not bound to adduce any testimony in support of it.
    This question can only be determined by a critical examination of the language of the declaration. It is certainly drawn inarti-ficially, but that it was designed to be in tort, can scarcely admit of a doubt. The plaintiff having “ complained of the defendant in custody &c., of a plea of trespass on the case,” without adding “ upon promises,” as is invariably done, when the proceeding is upon contract; and further having taken issue upon the plea of “ not guilty,” which is a proper response to an action of tort alone. The counts, considered as based upon the deceit, though informal, are not defective in substance. The second charges the scienter in express terms, and the first, though in phraseology less perspicuous, certainly imports the same charge. Vide Baldwin v. West, Hardin, 50. It is the quo animo which constitutes the fraud; and “a false and fraudulent warrranty of soundness” implies in strong terms, a knowledge of unsoundness. But while these counts are thus conceded to be good as counts in deceit, it is believed that they are utterly shapeless and defective as counts upon the warranty. They contain no averment that a warranty was made. They do not pretend to set it out, but merely refer to it by way of recital, and as inducement to the gravamen of the action — the fraud and deceit. The first count recites, that the said Tutt by then and there falsely and fraudulently warranting the said negro woman to be sound, &c., then and there sold the said slave, &c., whereas in truth the said negro woman slave was at the time of said warranty and sale, unsound, &c., and the plaintiffs in fact say, that the said Tutt by means of the premises, falsely and fraudulently deceived her, the said Maria, on the sale of the said slave,” &c., thus most clearly setting out the false and fraudulent deception in the sale of the slave as the foundation of the action, and reciting the false and fraudulent warranty only as' the means by which that deception was successfully practised. The second count is substantially the same, and is obviously framed with the same view. It is well settled, that either a false warranty of soundness, or a false representation connected with the scienter, makes a deceit, for which an action of deceit will be sustained. Vide Cravins v. Grant, 4 Monroe, 127. The purchaser has his election to sue upon the contract of warranty alone, or to sue'upon the fraud. Ibid. But if he elect to sue upon the fraud, as he has done in the case at bar, he must prove the sci-enter. Vide 1 Johnson, 453, as to the sufficiency of the averment in the first count to support an action of deceit.
    ■ As to the second error assigned, the judgment of the court overruling the motion for a new trial, was manifestly correct. The discovery of new testimony to a point formerly in issue, is no ground for disturbing the verdict. 8 Johns. 84; Smith v. Brush, 15 Johns. 210; 2 Pirtle’s Digest, 125; 3 J. J. Marshall, 522. Besides, the affidavit is wholly insufficient in not giving the names of the witnesses who have been discovered, nor their affidavits. Vide 4 Johns. 425. It is insufficient, in not showing vigilance in preparing the case for trial, and in not averring that this newly discovered testimony was unknown to plaintiff on the former trial — the affidavit being made by one claiming to act as plaintiff’s agent.
   Mr. Chief Justice Shaeicev

delivered the opinion of the court.

• On the trial of this case the counsel for the defendant requested the court to charge the jury that to entitle the plaintiff’s to recover, the jury must be satisfied that the “scienter on the part of the defendant was proved;” which charge was excepted to by the counsel for the plaintiffs, from which we may infer that it was given by the court, although it is not so stated in the bill of exceptions.

It is insisted by the defendant’s counsel that the correctness of this charge must depend upon the form of action; whether it is ex contractu or ex delicto; that if it is in assumpsit on the warranty, the court erred; but if it is for deceit, the court was right. This position, though correct in part, is not so to the full extent. If it be an action of assumpsit predicated on a warranty, of course it was not necessary that the plaintiffs should have proved the scienter; and such proof was equally unnecessary if it be an i action of tort for deceit in a false warranty. Before I proceed to inquire into the form of the action, it may to as well to illustrate the truth of this position.

That an action for deceit can as well be sustained when there has been an express warranty, as where there has not, is a position deducible by reason and sustained by positive authority. In actions on the case purely for deceit in the sale of chattels, the deception is charged as resulting from the contract, made by false pretences and representations, amounting to a breach of the good faith by which every one is required to represent truly, the latent defects of the article he offers for sale, if known to him. And so it is when he gives a warranty. It is a matter of contract or engagement, which, if untrue, is more deceptive and fraudulent, because it inspires confidence by its professed fairness. In the one instance, the law has fixed a responsibility, and in the other, the party expressly engages to be responsible, implied by admitting a full knowledge of the qualities of the thing sold; and in cases of this description, it is unnecessary to prove the scienter, although the action be in tort, because of the parties undertaking to become responsible at all events; but the law does not impose such liability, in the absence of an express agreement, if the seller acted innocently; and it therefore requires proof that he knew of the defect.

In the case of Williamson v. Allison, 2 East, 446, the distinction is clearly taken. That was an action in tort for a breach of warranty, and the scienter was also laid in the declaration. For the defendant it was insisted that it was necessary that it should be proved, but the court held that it was unnecessary; that the breach of warranty was the gist of the action, and the scienter mere matter of aggravation, which might be stricken out, without affecting the declaration, and it was, therefore, considered as an immaterial averment. It was also held that the form of J action does not vary the proof. If, therefore, the gist of the present action be the breach of warranty the proof would be the same, whether it be in assumpsit or tort. In Selwyn’s Nisi Prius, 535, it is said that an action in tort may be sustained against any one who deceives by a false warranty, and the same doctrine is recognised hi Hallock v. Powell, 2 Caines’s Reports, 216, and in the case of the Executors of Everston v. Miles, 6 Johns. Rep. 138. The books of forms furnish us, also, with precedents in this form of action for false warranty. The rule adopted by the English courts is, that actions of tort for false warranty are considered as arising ex contractu, and the party is held to the same rule of proof as though he had brought assumpsit. Weall v. King, 12 East, 152.

The declaration in this case is rather loosely drawn, but there can be no doubt but that it was designed to be in form ex de-licto. I am strengthened in this conclusion by having compared it with the precedents, furnished in tort for false warranty in 2 Chitty’s Pleading, 679, where the form will be found from which, I presume, this declaration was taken. The scienter is omitted by the author, and so it is in the first count in the declaration, and it is so untechnically laid in the second count, that it is difficult to tell whether it was intended by the pleader to perform that office or not. Adopting the rule held in Williamson v. Allison, it is clear that it might be stricken out without affecting the cause of action, and consequently it needed no proof. The false and fraudulent warranty is substantially charged in both counts, and forms, evidently, the gist of the action. The counsel for the defendant conceded in argument, that the action was in tort, but contended that it was, therefore, necessary that the scienter should have been proved. If we rely on the authorities cited, such proof was unnecessary, and the party did not by electing to sue in tort, change the nature of the proof. I have not been so fortunate as to find the authority in Hardin’s Reports, referred to by defendant’s counsel, and a different rule may be there adopted; but I should hesitate much before I could receive it, and reject the authority cited from 2 East.

The judgment must be reversed and a venire de novo awarded.  