
    Wilson against Marsh.
    A c°unt 011 ** ceit m a sale cannot lie joined Wlth a ™°" ney count; being tort and asreomre difitcon tract of sale '«'ithig^you cannot maintain an action on an implied only 'foradcccit. See ame,p.414.
    1 HE declaration in this- cause contained two counts. , , The first count stated, that whereas, on the 31st August, 1805, at, &c. a certain communication and conversation, ’ ’ ’ was had and moved between the plaintiff and defendant, of and concerning certain four obligations or bills for the payment of wheat, (which are set forth in the declaration,) and thereupon the defendant offered to sell and transfer the said obligations or bills to the plaintiff, and to induce the plaintiff to purchase the same, did affirm to him, that the L 1 said obligations were .good and collectable, and that the obligor was good and sufficiently able to pay, and wtiuld pay the same according to the tenor and effect thereof, to which affirmation the said defendant gave credit, &c. at the special instance of, the defendant bought the same, &c. and paid to him a large sum of money, &c. upon all which obligations, an assignment in writing was indorsed and executed by the defendant to the plaintiff, and to induce the plaintiff to accept the-samé, the said defendant did then and there falsely and wickedly allege and represent, that the said obligations, and the assignments thereon, were good and sufficient, &c. Nevertheless, the said defendant, his affirmation; promise and assumpsit aforesaid, not re-* garding, &c. hath not performed, &c. and the plaintiff avers that the defendant, at the time, &c. Well knew, that the obligor, &c. was unable to pay áhd satisfy, &c. The second count was for money had and received by the defendant to the' use of the plaintiff. To this declaration there was a demurrer and joinder.
    
    Emott, in support of the demurrer; contended that the counts in the declaration could not be joined. The first count was on. the deceit■ in the sale, for there was no assumpsit laid. Being therefore in tortj it required a plea of not gtíilty, while the second count required a plea of non-assumpsit. Here he was stopped by the court, who desired to hear the other side.
    
      Gold, contra.
    • This mode of declaring is certainly anomalous ; but it has been allowed. .The count is on an implied “warranty in the sale, not on the deceit. An affirmation or representation, amounts to an implied warranty in law, for which assumpsit has of late years been allowed to be a proper mode of declaring; if so, the money count may be joined; and the general plea of non-assumpsit is sufficient. (2 East, 314. Douglas, 18. 3 Term, 57.)
    
   Livingston, J.

Here is a written assignment. You. cannot recover on a parol affirmation made at the time, on the ground of warranty. You must go for the deceit.

Thompson, J.

All the cases of an affirmation’s being an implied warranty, relate to the title only, not to the quality of the thing sold.

Per Curiam.

The first count charges that the defendant made a false affirmation scienter, and is clearly in deceit, and not on any warranty. It states further, that ■ there was a written assignment which contains no warranty. The plaintiff therefore, could maintain an action only for the deceit. The first count requires a plea of not guilty, and the second, non-assumpsit. Two causes of action, as tort and assumpsit, which require different pleas, cannot be joined. The demurrer is well taken, and the defendant is entitled to judgment; but the plaintiff has leave to amend his declaration on payment of costs.

judgment for defendant. 
      
      
        Ante, p. 414. Mumford and others v. McPherson and others.
      
     