
    Wiggins vs. Long.
    In an action of assumpsit on a warranty, no proof of fraudulent snisrepresas-tation by the vendor is admissible.
    Long sued Wiggins in the Circuit Court of Polk county. The declaration averred that the plaintiff delivered to the defendant a horse of great value, and that in consideration thereof, the defendant agreed to deliver, and did deliver to the plaintiff, a jack-ass, and then and there promised said plaintiff that said jack-ass could cover mares and was a foal-getter, &c,, &c., and that the said jack-ass would not cover ma-res, but was impotent, whereby said jack-ass was of no value to the plaintiff, &c. There was another count in substance the same: non-assumpsit and issue.
    The ease was submitted to a jury at the October term of the court, in 1847, under the direction of Judge Alexander. Evidence was admitted that the jack-ass was unsound and impotent, and that the same was known to the defendant, and that the defendant had promised and agreed that the said jack-ass was sound and able to cover mares.
    The court charged the jury that if the defendant fraudulently concealed any defect in the jack-ass he would be liable in this action. There was a verdict and judgment for $330. The defendant appealed.
    
      J. Brown, for plaintiff in error.
    
      Trewhitt & Gaut, for defendant in error.
   Turley, J.

delivered the opinion of the court.

In this case we think both the counts in the declaration are in assumpsit upon a warranty, and that therefore no proof of a fraudulent sale, on the part of the vendor, was legal evidence, and that of consequence the Circuit Judge erred in his charge to the jury, in saying, “that if the defendant, in making the sale or exchange of the jack, fraudulently concealed any material matter, calculated to effect or impair the value of the animal, then he would be liable for the value of the animal.”

This charge would have been appropriate, if the action had been in tort for a fraud committed by the vendor in the sale of the jack, but it is wholly inappropriate to an action of assumpsit on a warranty.

The judgment must, therefore, be reversed, and the case remanded for a new trial.  