
    
      S. Bayard against Malcolm and Malcolm.
    In action for a deceit m. the sale of a newspaper establishment, it was held, that the declaration must expressly allege that the defendant made the afftrinctic.n,falsely, fraudulently, or knowingly »- or it will be bud, and the defect of these words, will not be supplied by the concluding part of the count, and so by reason of the said affirmation, the plaintiff was falsely andfraudulently decerned, &c. The want of such allegation offraud ora scienter is not helped by a' verdict.
    THIS was an action on the case, in the nature of a writ of deceit, and was tried at the New-York sittings, on the 31st December, 1805, before Mr. Justice Livingston, when a verdict was found for the plaintiff. At the last term a motion in arrest of judgment was argued, and also a motion for a new trial or nonsuit. As the court decided, that the judgment must be arrested, it is unnecessary to take notice of the facts in the case, or the arguments of the counsel on the second motion. The declaration contained three counts. The first was as follows,— “ Whereas, the said R. M. and So Bo Mo on the 13th Febil ruary, 1802, at, &c. did make a certain assignment in 44 writing, concerning three-fourth parts of a certain news- ■ 44 paper, purporting, among other things, that the said 44 Ro Si. and o. B. SL proprietors and publishers of a cer„ 64 tain un Iivided three-fourth parts of a certain newspaper 66 called the Daily Advertiser, published in the city of 66 New-York, in consideration of 11,205 dollars, Bee. bar-44 gained, sold, &c. to the plaintiff, all their right, &c. in 64 and to the said newspaper, &c. together with the printing 64 presses, &c. And whereas, also, before the making the 44 said assignment, to wit, on the, See.-at, &c. a conversau tion was held between the 'said So Bayard, and the said 66 Ro M. and S. B. M. touching the purchase and sale of 46 the said three-fourth parts of, &c. and the price to be paid 44 therefor , and touching the number of the subscribers for 44 the said newspaper, &c. and who were severally to pay for <4 the same at the rate of eight dollars per annum. &c„ and 44 touching the amount of monies received, yearly, from 44 persons to whom the said newspapers were delivered, 44 and for having advertisements printed or published in 44 the said newspaper, and touching the expenses yearly 44 in and about printing, See. and touching the profits ac-44 cming yearly to the proprietors or publishers of the said 
      u newspaper, See. and touching an assignment to the pur- “ port, &c. to be made by the said R. M. and S. B. M. to ‘£ the said S. Bayard, if he and they should finally agree, £t &c. And the said R. M. and -S'. B. M. did, then and “ there, thereupon affirm, to the said S. Bayard, that the “ number of subscribers to the said newspaper did then “ exceed 900, and that such profits did then exceed the “ rate of 83,000, by the year. And the said S. Bayard,, “ giving faith to suck affirmation, it was finally agreed by “ and between them, &c. (stating the purchase by the plain-u tiff and price as expressed in the written assignment, and “ that the consideration money was paid, &c.) Whereas “ the number of subscribers, &c, at the time of the said “ affirmation, &c. was less than 900, that is to say, they “ did not exceed 600 : and there were not then any profits t£ accruingto the said proprietors of the said newspaper, &c. “ And so the said S. Bayard says, that he, by reason of the “ said affirmation of the said, &c. was falsely and fraudu- “ lently deceived,” & c. The second count was the same as the first, except.stating the affirmation, &c. to be made by «S'. B. Malcolm alone. The third count stated the written assignment and previous conversation, and that “ the “ said R. M. and «S’. B. M. did, then, and there thereupon “ affirm to the said S. Bayard, that they did not know the <£ number of subscribers, &c. nor the amount of the money ££ received yearly, &c. nor the yearly expenses, &c. but “ that a certain C. Snowden and a certain W. P. Miller “ then and there, servants and agents of the said R. M. “ and «S7 B. M. employed by them in and about the print- “ ing, publishing and vending the said newspaper, &c. ££ well knew the number of subscribers and money re- “ ceived, &c. profits, &c. and did then and there refer the “ said S. Bayard to the said Snowden and Miller touch- “ ing the number of subscribers, &c. That, afterwards, ££ and before finally agreeing to the said purchase, &c. a “ conversation was had between the said S, Bayard and 61 the said Snowden and Miller, severally, touching, &c. 
      u and that on such conversation and inquiry, the said “ Snowden and Miller did respectively affirm to the said “ S. Bayard, that the number of subscribers, &c. did ex- “ ceed 900, and that the profits did exceed 3000 dollars, « &c. And the said S. Bayard, giving full faith and Credit “ to the said affirmations and representations, did make “ the purchase, &c. Whereas the numbér of subscribers, “ then, were less, &c. nor were there any profits, &c. “ And so the said S. Bayard, by reason, &c. was falsely “ and fraudulently deceived, &c. Wherefore he is made “ worse and hath damage to ¡§20,000,” &c. The defend* ants pleaded not guilty.
    
    The reasons assigned in arrest of judgment were ; 1. That though the plaintiff in his declaration averred that the affirmations stated were false, he no where says that the defendants made such affirmations fraudulently. 2. That the plaintiff neither says, that the affirmations were fraudulently made, nor that the party or parties making the affirmations knew, at the time, that they were false. 3. That in the first count the affirmations are stated to, be made by both of the defendants, and in the second, by one of them only, without averring that he acted with the authority or privity, of the other ; and the jury have found an entire verdict on all the counts.
    
      Hoffman for the defendants.
    The declaration must be either on a warranty, or fraud in the sale. That it is not on a warranty is evident from the declaration itself, and from, the precedents and authorities on this subject.* If the declaration be in assumpsit, you may use words equivalent to a warranty, but if it be on the warranty, then the Words zvarmatizando vendidit, must be used. In Seixas v. Wood, 
       though the affirmation was in writing, it was held to be no warranty. Again, the contract is alleged to have been sealed and delivered ; but the bill of sale contains no warranty. If the plaintiff intend to recover on the ground offraud, he may proceed on matters dehors the in-vriment; but if he mean to rely on the warranty, he musí confine himself to the writ ten contract It will be found, that In all the cases where an affirmation has been ■ helo to amount to a warranty, it has been as to the title of the vendor only, and not as to the fkc. of the thing sold. Again, there is n"o scienter, averred. It is essential to this action, that either the scienter of the party should be alleged, or that he fraudulently affirmed.
      
       Any legal coaclus^on or inference does not help the want of a substan™ rial averment of a matter of fact. The defect in this de-‘ clar£ltion is not cured by .the verdict. Wherever the party-states a defective title, or omits to state any title, or cause of • ... ", , „ A , , " action, a verdict will not cure the defect, .eithei; by common law cr^the statute of jeofails.
      
       Buller, J. in the case of Bishop v. Hayward,
      
       says, if tlie title.be .defective on the face of it, the judgment cannot be sustained ; and by w.ay of illustration, as to what defects are cured by verdict, he puts the ease of a feofnrtpt pleaded without.livery ; wh™re the livery is implied as making part of the , fvofment. A id agajn in Spiers v. Parker, he1 says, nothing is .to be pre- , sum ed after verdict,, but what, is expressly stated in, che, declaration, or is .necessarily implied from the facts which yare stated,; and -he adds, that hp;does not knowmf a decision against this rule,. except a dictum of Lord -.Hardroicke, A verdict may cure ambiguitybut it will not supply, or cure the Want of niatter which is the gisl of the action. § ,Pyrther, the' second count is, on the affirmation of one of the defendants alone,; and the verdict is general. - Fraud is hot to be presumed, and one joiat owtn^r or partner is not answerable for the fraud of the other. :
    
      ..Benson and T. A. Emmett for the plaintiff,
    . This is,, in truth, an action for a deceit, and all the cases cited about warranty, are inapplicable. Though,,it be necessary- to allege fraud ,and falsehood in the defendants, vet it is suffi-■ cieni, if that be done substantially,: and by words tantamount. The, words “ that by reason of the said affirmation he was “ falsely and fraudulently deceived,” amount to the same, as saying he falsely and fraudulently affirmed. In an action for driving an unruly horse, there, was no scienter^ por any negligente alleged?, but oply that the, defendant imprudently and incautiously, and without due regard to its being an improper place, drove the horses there ; yet the plaintiff had judgment. In this view, the declaration would be good on a general demurrer. It is true, that where the breach assigned is a general conclusion from all the preceding matter, it cannot be applied to help the defects of the antecedent part: As where it is said by reason ef the premises &c. But here the breach is not expressed in this general manner, but so as to have a special application to the very words in -the former part, which prevents all ambiguity or uncertainty. It is "well settled that an action will lie on a false affirmation. If a vendor will make an affirmation to which the Vendee gives credit, and is of such a nature, that the vendor must have known whether it was true or false, and there be no laches on the part of the vendee, the law will imply the scienter.
       But if this declaration would not have' been good on a general demurrer, it is helped by the verdict. The authority of justice Buller, in Spiers v. Parker, is deserving of great respect, but the opinion there laid down seems broad enough to support the doctrine contended for by the plaintiff; for the fraud is necessarily implied from the words of the declaration. The more general and correct rule is the one laid down by Serjeant Williams, in a note in Saunders:
       “ Where there is any defect, imperfec- “ tion or omission in any pleading, whether in substance or “ form, which would have been a fatal objection upon de» “ murrer, yet if the issue joined be such, as necessarily re- “ quired on the trial, proof of the facts so defectively or im- “ perfectly stated or omitted, and without which it is not “ to be presumed, that either the judge would direct the “jury to give, or the jury would have given the verdict; “ such defect, imperfection, or omission is cured by the “ verdict, by the common law.” In Hitchen v. Stevens,  the rule was laid down by all the court, that where any thing is omitted in a declaration, though it be matter of substance, if it be such as without proving it at the trial the plaintiff could not have had a verdict, such omission shall not arrest the judgment. Buller observes, that there is no decision against the rule he lid cl down, but a dictum, of Lord Hard* wicke; yet if the report of that case is read, it will be found to be the opinion of the whole court, and not a mere dictum. The only case that militates against the rule laid down in Shoxuer, and Comyns, is that of Buxentine v. Sharp.
      
       If the rule given by Buller, be the true one, nothing can be presumed after verdict. The most that can be said is, that if there be no facts, or combination of facts, in the declaration, to support a fact not averred, then the fact cannot be presumed ; but if there be such a combination of facts, from- which such fact not averred can be presumed, it shall be presumed. The words used in the declaration are such as to afford a necessary inference of fraud, and therefore the wapt of a direct averment is cured after verdict. The case of Cross v. Garnet,
      
       is an authority to this point. There, on a declaration for deceit in the sale of oxen, after verdict for the plaintiff, there was a motion in ■arrest of judgment, because there was no scienter nor warranty alleged,, nor that the defendant sold them fradulenihj and deceitfully, yet the ,court held, that though these exceptions would have been good on demurrer, yet after verdict it was well enough, and the plaintiff had judgment.
    As to the objection that there is no averment that R. M. authorised S. B. M. to make the declaration, it may be said that the defendants were not joint owners of a chattel, for the right of printing and publishing a gazette is not a chattel.— They were mere partners in that undertaking. The declaration contains facts which afford the necessary inference that they were partners, and, after verdict, it will be intended that evidence was given to the jury of such authority from i?, M. 
       Indeed, the one is to be considered as the agent or servant of the.other in this transaction, and by executing the bill of sale, and receiving his share of the purchase money, a strong presumption is afforded that R. M. knew and approved of the representations of S. B. M,
    
    
      Harison, in reply.
    It is true, as has been observed by Lord Mansfield, that pleadings are to be tried according to the rules of sound logic : and it is not difficult to prove that this declaration is deficient in that logical precision and certainty required in good pleading. The true distinction between actions on a warranty, and those for a fraud- or deceit, is well laid down in Williamson v. Allison, and Springwell v. Allen.
      
       If the party proceed on - the warranty, fraud or deceit neéd not be alleged ; and that the latter are to be found in some old precedents, in actions on warranty, is to be imputed to the excreme caution of the pleaders, which has thus given rise to all the apparent confusion on the subject, in relation to tort and contract. Bat the addition of fraudulently and deceit'f ully, &c. in those cases was unnecessary, and is to be rejected as surplusage. Those words are used in the general conclusion of all declarations on contract or assumpsit, but are not meant as an allegation of fraud, nor do they make it an action for fraud. The present action is not on the contract of warranty, but, is truly and substantially, an action for fraud, quasi ex delicto. The opinion delivered by Mr. Justice Fuller, in Paisley v. Freeman,
      
       'if attentively examined, will be sufficient to do away the distinction attempted to be set up, about the party’s being in possession or not.
    If it be intended to rely on an affirmation as a warranty, it must be either stated, as a warranty, -warrantizando vendidit, or by way of assumpsit, which is the modem way of layingthe warranty. But it would be too lax in practice to permit declarations to be so framed, that they might assume the shape of an action on the contract or for a tort, as best suited the views of the plaintiff. In the case cited from Robinson’s Entries, the declaration is laid in assumpsit to try the question of warranty. That the present could not have been intended as an action for a warranty, is evident from there having been a written contract sealed and delivered, in which all previous warranties are to be considered as merged. It is, in truth, as one of the counsel for the plaintiffhas said, an action for a deceit. Fraud, or a scienter, is the gist of such actions. Now the gist of every action must be laid with clearness and certainty in the declaration. It is an established maxim in pleading that the basis of the action must be presented precisely and clearly to the court by pleading, and to the jury by evidence. Though the plaintiff ,is not obliged to use the word scienter, or knowingly, yet he must státé what is clearly equivalent. Thus much at least, is required by every authority that can be found deserving of any consideration. The essential allegation, or gist of the action, should be stated in the first part, or body of the declaration, ánd cannot be made out by inference, or by the application of the general conclusion. A scienter, or maliciously, orfraudulently affirming, is sufficient to express the gist of the action. Here a simple affirmation is first stated, and, afterwards, a conclusion that the plaintiff was thereby fraudulently deceived. A false affirmation may be made, without any scienter orfraud, and so afford no ground of action. As the plaintiff does not aver that the affirmation was made false et deceptive, falsehood or deception cannot be inferred so as to support the action. It is agreed on the other side, that this cannot be helped by .a general conclusion going to the whole premises ; and an attempt has been made to discriminate the concluding words of the count, from the general conclusion. A conclusion to a part, has the same effect as a conclusion to the whole. In the case from Saunders, the conclusion was like, the present, and. so, &c. which was held to be a nullity, if the premises did not warrant the conclusion. In Lynsey v. Selby, and in Paisley v. Freeman,§ and other cases, the allegation was» that the defendant falsely and fraudulently affirmed, &c. The plaintiff is bound to prove only the premises, and not the conclusion ofhis declaration. Then, as to the other point, where the defect in the declaration goes to the gist of the action, it is not cured by the verdict. On the broad principles contended for, on the part of the plaintiff, there is no defect in a declaration which cannot be cured by a verdict. In the case of Rushton v. Aspinal,
      
       the same argument was urged as in the present case, but it was overruled by the court. It is very probable, that if all the decisions are searched, as far back as the year books, some may be found that may be in favour of the plaintiff; but it is the business of the court to apply the touchstone of legal discrimi-
    
      Nation to these cases, otherwise, the law will be only á rude chaos of discordant opinions. If the principles of sound logic be the basis of the science of pleading; if the apparent discrepancy of opinion among various judges, is to be tried by legal discrimination, it will be found, 1. That this declaration, if intended to be on a warranty, is bad, as there was a writing sealed and delivered between the parties. 2. If it be an action for a deceit, then fraud or a scienter should have been directly and clearly alleged. 3. A general conclusion will not help the want of averment in the body of the declaration. 4. That it would have been bad on a general demurrer, and the defect being essential, and of substance,' cannot be cured by a verdict.
    
      
      
         Ante p. 310.
    
    
      
       2 Ld. Raym. 1118. Lysney v. Selby.
      
    
    
      
       2 Caines, 48.
    
    
      
       See Ante, p. 414. Mumford v. Mc Pherson.
      
    
    
      
      
         1 Ld. Raym. 593. Medina v. Stoughton. Ante p. 274. Defreeze v. Trumper.
      
    
    
      
       2 Saund. 180, 181.
    
    
      
      
        See 2 Caines, 53. Douglas 20. Buller's N. P.30.
      
    
    
      
       See 1 Saunders, 228. c. note, and the authorities there cited.
    
    
      
       4 Term Rep. 472.
    
    
      
      
        Term, 145.
    
    
      
      
         Cowper, 826. Avery v. Hoole. 1 Term, 141.
    
    
      
      
        Michael v. Alestree. 2 Levinz, 172.
    
    
      
      
        Styles, 300. 1 Keble, 510. 1 Siderfin, 146. 2 Lord Raym. 1118. 3 Term, 51. 1 Lord Raym. 593. Yelreston, 20. Robinson's Entries, 33. Hearme's Pleader, 102.
    
    
      
       1 Saunders, 228. (a)
      
    
    
      
      
         2 Shower, 234. (245.) 5 Comyns, Dig. Tit. Pleader, (C. 87.) Cro. Car. 497.
    
    
      
       3 Salk, 12.
    
    
      
       3 Modern, 261. S. P. 1 Viner, 562. pl. 18. Warner v. Tallard. Roll. Ab. 91. Thos. Raym. 487. Ld. Raym. 392. 1 Bos. & Puller, 329. Cowper, 826. 1 Salk. 211.
    
    
      
      
         Y. B. Hen. 6th. 9. 53. Rolles Ab. 91. Book of Assize, 42. pl. 8. Cro. James, 196.
    
    
      
       2 East, 448.
    
    
      
       3 Term, 36.
    
    
      
      
        Springwell v Allen, Alleyn, 91. more fully in a note, 2 East, 448.
    
    
      
       2 East, 446.
    
    
      
      
         Ld. Raym. 1118. 3 Term, 56. See also Buller, N. P. 30. 3 Mod. 261. Carthew, 90. 1 Shower, 68.
    
    
      
       1 Saunders, 228. note.
      
    
    
      
      
        Douglas, 680.
    
   Thompson, J.

The question presented to the court, is touching the sufficiency of this declaration after verdict. It must be considered as a declaration founded upon a warranty, or upon a fraud or deceit in the sale of the establishment, in neither of which points of view, can it, I think, be supported. Without entering into an inquiry, whether a mere affirmation is to be considered as a warranty, there is a fatal objection to the declaration, if considered as one founded on the contract. It states the sale and transfer to have been made in writing, under the hands and seals of the defendants. All previous representations must be considered as conversations leading to a contract to be consummated, by the bill of sale, and as coming within the rule adopted by the court in the case of Vandervoort v. Col. In. Company, (2 Caines,161.) and in the case of Mumford v. McPherson, decided in this term. That, ■when an agreement is reduced to -writing all previous treaties are resolved into that. Whatever remedy, therefore, the defendants may have on the contract, must be on the bill of sale. If this declaration is to be supported at all, it must be as one founded on a fraud in the sale of the establishment. Here, also, are insuperable objections. The sale is not alleged to have been made fraudulently, nor that that the defendants knew their affirmations were false. 1 he-declaration, regularly, ought to proceed to charge, that the defendants knew of the matter by which, they de- .... . ; J „ / ceived, and that they did it falsely and fraudulently. An allegation of a scienter might, after verdict, supply the omission of falsely and fraudulently, or falsely and frauduient¡y import that they knew it; (3 Mod. 261. note) but one or the other is indispensable. Where there is no warranty, the s.cienter or fraud is the gist of the action. This principle has been frequently decided by the courts in England, and recognized by this court. (1 Ld. Ray. 595. 2 Ld. Raym. 1118. Doug. 20. 3 Term, 56.62. 2. East, 322,448. 2 Caines 48.) The conclusion of each count, that by reason of the said affirmations, the plaintiff was falsely and frauddulently deceived, is not sufficient. It is no more than the common conclusion of a declaration. The fraud is a substantive allegation, and must be laid in that part of the declaration which sets out the plaintiff’s cause of action, otherwise, he is not bound to prove it upon the trial. Where the action is founded on the contract of sale, the declaration usually concludes, that the defendant falsely and fraudulently deceived the plaintiff, &c. yet this is not necessai-y to be proved, not being of the essence of the declaration. (2 East, 448.)

The only remaining question is, whether the defects or omissions are cured by the verdict ? I think they are not. A verdict will not amend the matter when, the gist of the action is not laid in the declaration.' (Cowp. 826.) Lord Mansfield says, the rule is, that where the plaintiff has stated his title, or ground of action defectively or inaccurately, a verdict will cure it, because to entitle him to recover, all circumstances necessary in form or substance to complete the title so imperfectly stated, must be proved at the trial, and it is fair to presume after verdict, that they were proved. But where the plaintiff totally omits to state his title or cause of action, it need not be proved at the trial, and therefore there is no room for such presumption. (Doug. 683.) To apply this rule to the present case; what is the cause of action here ? it is a fraudulent sale of the newspaper establishment; but no such fraud is' alleged in the declaration ; it cannot therefore be presumed to have been proved. Under this declaration, all that the plaintiff would be required to prove would be, that the defendant affirmed that the number of subscribers to the paper exceeded nine hundred, and that the annual profits of the establishment exceeded §3000, and that these affirmations ivere untrue. But the- e facts would not have created a good cause of action, according to the decisions of the cases already cited, unless these affirmations were made fraudulently, or known by the defendants to be false. Thus in the case oí Buxentine v. Sharp, (3 Salk. 12.) the declaration against the defendant was for keeping a vicious bull, but it stated no scienter. This was held bad after verdict, for the action lies not, unless the owner knows of this quality, and it could not be intended that it was proved at the trial, for the plaintiff need not prove more than is laid in his declaration. (1 Term Rep. 145. 3 Mod. 261. note.) The result of my opinion, therefore, is, that the defects in the declaration are not cured by the verdict, and that the judgment must be arrested.

Spenc a, J. and Tompkins, J. concurred.

Livingston, J.

I cannot concur in this opinion. The .objection to the first count, which applies also to the other two, is the want of an averment, that the affirmations, which induced the purchase, were fraudulent. The plaintiff insists that each count contains a perfect cause of action, set forth with sufficient certainty, without any defect in form or substance ; and that if it be otherwise, yet even an omission in substance is cured by verdict at common law, if the issue necessarily. required proof of the matter imperfectly stated, or altogether omitted, and without which a judge could not direct, nor a jury consent to find, for the plaintiff.

- There is some difficulty in accurately defining what faults are cured by a verdict. To this point, there is much learning and a great variety of cases, not always intelligible, nor free from contradictions. There is no risk, however, in saying, that where it may with certainty be collected from the manner in which the action is laid, that the whole merits must , , . . ... .. have been tried, courts will not readily listen to reasons m arrest, of judgment., After a full and fair discussion, it is so hard and unjust to put a party to further litigation, for an error in pkad.'ng, that every struggle should be made to uphold a declaration, not radically bad, or if from, the whole of it, a good ’. can be extracted,' though not very formally set fm £h, nor in the way generally, or- most usually, . pursued,

' Whether ibis declaration stand in need of the indulgence which these remarks would seem to bespeak, I will not say, but after a very careful inspection, it does not present to me any of those glaring defects which can alone justify the extraordinary interposition that is expected from us. The omission to allege a scienter in the defendants and their agents, is the ground of objection we are now examining. Without fraud or deceit this action cannot be maintained and to render a party guilty of either, there must be not only a false affirmation, but it must be made with knowledge of its being false. Hence it follows, generally at least, that a declaration, to be perfect, must charge a defendant with knowingly having recourse to a falsehood to promote a bargain. How far this averment can be essential, when, as in the case before us, a misrepresentation is alleged to have proceeded from the vendor himself in relation to the profits of an establishment of which, for aught disclosed by the record, he may have been in possession for many years, is a point well deserving consideration. It is next to impossible for the owner of any such establishment to be ignorant whether it be lucrative, or otherwise ;.he cannot, therefore, without design, make any considerable mistake about it. But without determining on the fitness of a declaration, in a case like the present, if this averment had been wholly omitted, it is without pretence that its existence is denied here. Each count, after denying the truth of the affirmations, contains this averment—“ And so the plaintiff saith, that he by rea- “ son of the said affirmations, was falsely and fraudulently “ deceived.” At the end of the last count follows the com-«ton inclusion, “ that'the plaintiff is- therefore made1 worse 1 1 , v vC and hath "damage,” &c. •

From this statement, may it not be asked, where is the omission of which so much complaint is heard ? Is not an allegation of a party’s being• falsely and fraudulently deceived, by the representation of another, essentially the same as saying that he had been thus deceived by the person ■making the false assertion, or in other words, that the same was known to him not to be true ? This knowledge, then,.is as necessarily imputed to the defendants by this kind of averment, as by any other, because,- without it, though the -plaintiff might he deceived, he- could not be so fraudulently., which would be true only. in case the defendants told a-, wilful falsehood. No other meaning can be affixed to these terms, for such an averment necessarily charges the defendant with knowledge of the falsity of what he has said, without which there could have been .no fraudulent deception* This averment, at any rate, necessarily, and unavoidably put in issue the scienter, and rendered it incumbent on the plaintiff to prove it. If it were material to show that he was fraudulently deceived, (and he has rendered it material by his averment,) and that could only he made out by. proving that' the defendants, or their agents, knew they were .imposing on him, it follows, reasoning from the record itself, that such proof, was not only necessary, but must have been made.

It was said, on the argument, that this averment was only stated as a deduction from premises, which being wholly silent as to the fraud, did. not justify .the inference, and which, notwithstanding the situation of the parties, might be erroneous. If this were so, it belongs to the jury, and not to us, to pronounce on its correctness. Tome, however, this conclusion, if it be regarded only in that light, is not only natural, but such as must, almost universally, follow from the same premises. It is immaterial, however, whether what was disclosed in the preceding part of the declaration, warranted the averment. The plaintiff had a right to make it, and whether the basis on which it was placed, would. suPPort was a matter to be settled by á jury. He might have made it on mere suspicion, without assigning any reason, but when he gives one, which we are now to presume a jury have thought sufficient, we ought to be satisfied. If tlris declaration be not in strict conformity with precedents, yet if every material allegation may be collected from the whole of it taken together, more, after verdict, should not be required.

By some of the counsel this averment was considered as only the common conclusion of every declaration of this kind, and, therefore, as not forming a substantial, or component part of it. This is not the case, though even then it would be suffi :ient, if it put the scienter in issue. It is a distinct allegation, separate from, and unconnected with, the general conclusion, which is found only at the termination of the last count. Its introduction by the monosyllable so, which was much insisted on as evidence of its being the result of the plaintiff’s own reasoning on the matters before alleged, can do no harm, provided it be sufficiently explicit and intelligible to bring into discussion the fraud or deceit, which is the fist of the action. The rules of pleading have not appropriated any particular part of a declaration for the insertion of this averment. So that, if it be found somewhere, it is enough.

Upon the whole, every count is so framed as necessarily to put in issue the scienter of the defendants or their agents ; and that by averments, too apt and significant to be misunderstood. This case, then, does not merely fall within that class of cases, in which a court will presume that certain facts not only imperfectly stated, but altogether omitted, yet necessary to be proved, have actually been made out at the trial, which would be conclusive here, but presents the much stronger case of an issue on the very fact which it is pretended has been overlooked by counsel, and on the supposed omission of which the whole argument has turned.

Another reason assigned for arresting judgment is, that in one count the affirmation is stated as proceeding from one of the defendants solely, without alleging any authority for that purpose, from the other.

That the joint owners of any property, who are equally interested in and benefited by its sale, should answer civilly for each other’s misrepresentations, and refund what has been thus acquired, is too reasonable to require that we should take up any time in examining this objection to the declaration.

There is also a motion for a nonsuit, or new trial. On this case, it is unnecessary to decide on the points ruled at the trial of the cause ; because, if the judge were wrong in refusing a nonsuit, yet as the plaintiff, if he thought his testimony defective, might, and actually did examine other witnesses, notwithstanding the opinion in his favour, it is impossible, without a knowledge of this evidence, which it has been thought proper to keep back, to say, that a nonsuit, if we have power to grant it, without an agreement of parties, or another trial, would be proper. This further testimony might support the verdict, though a nonsuit, in the first instance, might have been right. If the defendants have made a case so imperfectly that we cannot give judgment in their favour upon it, the other party was not bound to amend it, nor is it for us to say that the testimony, which is withheld, was immaterial. The plaintiff, in my opinion, must have judgment on the postea.

Kent, Ch. J.

I concur in the opinion, that thejudgment must be arrested. The action is not founded upon a warranty or breach of contract. There is no warranty alleged in the declaration, either in the ancient form of 'loar rant izando vendidit, or in the modern manner of declaring in assumpsit. Nor could any parol warranty have been shown, if the suit had been brought upon one, for the contract being reduced to writing, excluded all anterior verbal negotiations and promises, as being resolved into the writing, which is the consummation, and only evidence of the agreement of the parties.

We must therefore considerthe declaration as grounded entirely upon deceit or fraud in the sale, and it must be tested by the rales which apply to, and govern that species of action. As fraud is the gist of the action, it must be a substantive allegation. The declaration must state that the defendants deceitfully, or fraudulently, or knowingly, made the false affirmation. The averment merely of an affirmation which was not true(, is not sufficient. The defendants must be charged expressly with the fraud because it is the fraud only which makes them responsible. 1 he case of Harvey v. Young, (Yelv. 21.) is very analogous to the one before us. s he defendant was charged with having affirmed, in a discourse with the plaintiff, that a certain term for years was worth £150; upon which the plaintiff purchased it for that sum, and it turned out not tobe worth _£lOO, upon which the plaintiff sued the vendor, in pn action on the case for the deceit, and alleged that he gave faith to fhe assertion, and made the purchase, and that the bargain turned out in fraud and deceit of him. After verdict, the defendant moved in arrest of judgment, because the matter precedent did not prove any fraud, for it was but the defendant’s bare assertion. The event of the motion is not stated in Yelverton, but from the notice taken of the cáse, in i Lev. 102. 1 Sid. 146. and in 1 Viner, 563. pl. 19. note, it is evident thatthe motion is considered as having beengranted. The case of Chandelor v. Lopus, (Cro. J. .) is also to this effect. There is some little variation in the books in respect to this case, but they all seem to concur in considering it as having established this position, that in an action for selling a precious stone, as a bezoarstone, when it was not such a stone, the declaration must state either that the defendant warranted it tobe a bezoarstone, or that he knew it was not, and that stating simply that the defendant affirmed it to be a bezoar-stone is not sufficient. (Cro. J. 469. The marginal note to Dyer, 75. a. 2 Rob. Rep. 5.) The case of Ekins v. Tresham, (1 Lev. 102. 1 Sid. 146. 1 Keb. 510. 518. 522. S. C.) goes in confirmation of the same doctrine. It was an action on the case in the nature of deceit, for that the defendant, in a discourse between him and the plaintiff, falsely and fraudulently affirmed the rent of a house to be worth £43 a year, and that the plaintiff giving faith thereto, purchased, while in fact the rent was but a year. After verdict the defendant moved in arrest of judgment, and that motion was denied, on the ground which Twisden took, thatfraud'lienter was, at least after verdict, equivalent with sciens, and Jones said, u the fraudulenter intendens to deceive the plaintiff was insignificant, but. it was further fraudulenter asseruit." It would be easy to multiply authorities to the same point, as the doctrine which these cases establish is supported by the whole current of precedents and decisions. (Cro. J. 196. 3 Lord Raym. 31. Buller's N. P. 30. Dougl. 20. 2 East, 446. 448. note, and 450. note. Plac. Gen. 18. Clifton's Ent. 935, 936, 7, 8. Brownlow, 80. J I have not been able to meet with a case or precedent in an action for deceit, where the affirmation of the defendant is not directly or expressly charged to have been made fraudulently or scienter. There are cases, indeed, in which the plaintiff goes upon the implied warranty of ownership upon the sale of a chattel, when'the fraud need not be alleged, but all these cases of implied warrranty are those in which the title of the vendor proved defective according to the distinction stated in the case o: Defreeze v. Trumper. and in these cases the simple affirmation of the defendant is sufficient, as was observed by the court, in Medina v. Stoughton, and again in Crosses. Gardner; yet even in these actions for failure of title and brought upon the implie i warranty, the pleader has sometimes added the allegation of fraud or deceit, as was done n the case last cited, by the words falso et malitiose ajfrmabat; and by thus confounding the action on the implied warranty with the action for the deceit, some confusion- has been introduced into the precedents on this subject. (Stiles 310. Book of Assises 42. plf. 8. Clift. 933.)

I conclude, from this review of the cases, that the rule of pleading is clearly and firmly established, that where the gravamen is laid upon the deceit, that deceit must be expressly averred, and that there is no such averment in the present case. The declaration states a colloquium, and ^le defendants did affirm, and that the plaintiff gave faith to the affirmation, and made, the contract ; and then follows the averment that the facts were not true, as they 1 had been affirmed, and that the plaintiff, by reason thereof, had been falsely and fraudulently deceived. The fraudulent deception is laid merely as inference from the affirmation. It forms no part of the premises. It was not requisite to have been proved upon the trial, and according to the observation in one of the cases already cited, it was insignificant matter, and cannot, therefore, supply the want of a charge that the defendant fraudulenier, or deceptive, or scienter, affirmed. The only remaining question, then, as it appears to me, is whether this defect in the declaration be cured by verdict, and here the general rule is, that a verdict will not cure matter which forms the substance of the action. It will aid a title defectively set out, but not a total defect of title. This is an elementary rule, and acknowledged throughout the books. (2 Salk. 662. Cowp. 826. Dougl. 683. 1 Term 145. 4 Term 472.) Serjeant Williams (3 Saund. 228. n. c.) has industriously collected and arranged the cases on this subject and he draws this general conclusion, that “ if the plaintiff states “ a defective title, or totally omits to state any title, or “ cause of action, a verdict will not cure the defect, for the “ plaintiff need not prove more than what is expressly sta- “ ted in the declaration, or is necessarily implied from the t6 facts which are'stated.” In the present case, the fraud was not a necessary inference from the premises. The affirmation may have been untrue, and yet innocently made. The scienter was not requisite to have been proved upon the trial, because not charged, and, therefore, we are not to presume it to have been proved. This presumption is only extended to matter which must, of necessity, have been given in evidence to the jury. (T. Raym. 91. 487. 1 Lord Raym. 392. Salk. 211.) The deceit was the foundation of the action ; it ought to have been averred, and the verdict will not cure the omission of it. This was so ruled in Buxentine v. Sharp; (2 Salk. 662.) and is agreeable to the opinion of Lord Mansfield, in Rushton v. Aspinall. (Drug. 683.) To dispense with the rule, would be a dangerous relaxation, and might lead to the loss of certainty and precision in pleading. General rules will sometimes appear harsh and rigorous, in their application to particular cases; but I entertain a decided opinion, that the established principles of pleading, which compose what is called its science, are rational, concise, luminous, and admirably adapted to the investigation of truth, and ought, consequently, to be very cautiously touched by the hand of innovation.

Judgment arrested. 
      
      
         2 Saunders, 228 in the notes
     
      
       2 Cro. 630. Doug. 20. 2 East, 451, 2.
     
      
       5 Viner, 517. pl. 26. 2 Caines, 161.
     
      
      
        Ante, 274.
     
      
       1 Ld. Raym. 593.
     
      
      
        Carthew, 90.
      
     