
    
      Z. B. Oakes vs. George Shrewsbury.
    
    Defendant, in consideration of a negro, assigned to the plaintiff a bond and mortgage of two negroes, and in the assignment guaranteed, the title. The title of the mortgagor to the negroes was bad, and the defendant knew it was bad before the assignment. Held, that the plaintiff could not maintain an action on the common money counts without an offer to return the bond and mortgage, even if money, instead of a negro, had been paid for them ; and that if he sought to recover damages for a deceitful representation not noticed in the written contract, he should have sued in case.
    
      Tried in the City Court of Charleston, July Term, 1845.
    This was an action of assumpsit. The first count in the declaration alleged “ that the defendant, knowingly and fraudulently and with intent to deceive and defraud the plaintiff, did undertake to assign and sell to the plaintiff a certain mortgage of two negro slaves, named Wellington and Francis, representing that the said mortgage was a good and valid lien on said negroes, and in consequence of his said fraudulent representations and undertakings, did receive from the plaintiff the sum of five hundred dollars ; whereas, in fact and in truth, the said mortgage was no lien upon said negroes whatever, and this the defendant well knew ; by reason whereof, the said defendant became liable to pay to the said plaintiff the said sum of five hundred dollars; and being so liable, afterwards, to wit— on the day and year last aforesaid, at Charleston, (fee. undertook, and then and there faithfully promised the said plaintiff, to pay him the said sum of money when he should be thereunto requested.” In addition to the above special count, there were the usual money counts. The plea was non-assumpsit.
    The defendant, on the 28th September, 1844, in consideration of a negro valued at $275, assigned to the plaintiff a bond and mortgage of two negroes on one John St. Marks. The assignment was as follows :
    CHARLESTON, 28th September, 1844.
    For value received, I assign the within mortgage and the bond accompanying the same to Z. B. Oakes, broker, and quarantee the title.
    George Shrewsbury.
    It further appeared that the negroes did not belong to St. Marks, but to one Patrick Owen, trustee of the wife of St. Marks.
    Two witnesses testified that the defendant knew, before the assignment, that the title of St. Marks to the negroes was not good. To one of them he said, after the assignment, “ that he had sold the mortgage to Oakes, and got nearly or quite the face of it; that he had shaved him handsomely.”
    The Recorder, after stating the testimony, reported as follows :
    
      “ The defendant’s counsel moved for a non-suit, principally on the ground that the action of assumpsit brought by the plaintiff in this case, was not the proper form of action and could not be sustained, and that the proper remedy, if any, was by an action on the case for a deceit. The motion for a non-suit was argued by the counsel respectively, and several authorities were cited. I thought that the plaintiff had mistaken his remedy in this case ; that if he had any thing to complain of in the transaction, his remedy must be either on the defendant’s express guaranty in writing on the assignment of the mortgage to the plaintiff, or by an action on the case for deceit. Here there had been an express guaranty of the title in writing, by the assignor to the assignee, and that in such a case assumpsit would not lie as upon an implied warranty ; nor was the count for money had and received applicable to the case. That according to the plaintiff’s own declaration in this case, the supposed ground of injury was in the assignment and sale of a certain mortgage of negroes, and not in the absolute sale of goods or negroes ; and that even supposing the form of action at all applicable, there was no evidence of any false or fraudulent representations made by the defendant to the plaintiff at the time of and upon the assignment of the bond and mortgage, as alleged in the declaration, the only evidence of what passed between the parties at the time of the assignment being contained in the written assignment and guaranty of the mortgage by the defendant. In Stephens’ Nisi Prius, p. 1285, it is laid down “ that assumpsit is not the proper action for representations not expressed in the contract; in such case the action is founded upon the deceit, and the action should be case.” I have no recollection of the plaintiff’s having offered to prove the insolvency of St. Marks, but had he done so, I have no doubt I should have rejected the evidence as impertinent and .irrelevant. For the ground of the plaintiff’s action, as set forth in his declaration, is not that there was any representation whatever made by the defendant as to thé solvency of St. Marks, but only as to the lien of the mortgage upon the negroes.”
    The plaintiff appealed, and now moved that the non-suit be set aside.
    
      Kunhardt, for the motion.
    Cooper, contra.
   Curia, per Wardlaw, J.

If the plaintiff sought to recover damages for a deceitful representation not noticed in the written contract, he should have sued in case. If the written contract may be construed to amount to a warranty that the negroes were subject to the lien of the mortgage, the first count is too defective in form to be considered a special count in assumpsit upon the warranty; and the general counts could not be maintained (even if money instead of a negro had been paid for the assignment,) without proof of an offer to return the bond and mortgage, or of some other act which might amount to a rescisión of the contract. The motion is dismissed.

Richardson-, O’Neall, Evans, Butler and Frost, JJ. concurred.  