
    BALDWIN vs. WEST.
    
      May 26th.
    
    , .. . In a lull for a deceit in fei-ling an un-jhould aver either thn the vendorfaifely fe prefented the horfe found ; or him t‘iehekne; found and re" prefented him
    In this kind of iuit the qm ammo is the gift ^ the 2£¾!“(“~ noce/’ an 6
    A party put-tmg a witnefs upon his noire dvire*s to hue-reft, has a right to examine him of the tranfac-don, in orderto llrow his intereft
    the competency ofawitnels, never come too be made at any ftage of the
    THIS writ of error was brought to reverse a judg-r „, . . ° ■ r , J . ? ment of Mason circuit court, m an action tor a deceit in the exchange of horses. The declaratiftn stated, that on making the exchange, Baldwin, the defendant below, represented the horse tobe sound, and then averred that the horse was not sound.
    A bill of exceptions filed by Baldwin, stated that a witness introduced by West was sworn on his voire doire, and on being questioned by the court whether he was interested in the event of the suit, said he was not. Baldwin’s counsel then offered to ask the witness questions as to the detail of the transaction, to shew that he was interested, and therefore not competent. But the .. .. , , r , -1 , , , , j court was or opinion tnat after the witness had declared on oath that he was not interested in the event of the suit, it was not proper to ask questions of that kind ; and refused to permit them to be asked, but directed the witness to be sworn in chief,
    A verdict and judgment was rendered for West for j tliUYlUg'CS»
   By the Court.

The first error assigned, is, “It .0Unht t0 have been alleged in the declaration that Baid-win knew that the horse given by him in exchange was diseased with the glanders. In an express warranty, • .110raHCe Df unsoundness in the article, does not excuse the vendor ; otherwise m a misrepresentation or deceit.”

jn examinjncr the most approved precedents, it appears that it is always stated m the declaration in an action of deceit, that the defendant well knew (if a horse) that he was unsound and falsely and fraudulently represented him sound. In this kind of suit, the quo ani-mo is the gist of the action ; for fraud without damage, or damage without fraud, is not the ground of an action. In the declaration in this suit, it is neither stated or averred, that the defendant falsely, and fraudulently represented the horse to be sound, or that he knewhe. was unsound ; one or the other of which, is absolutely necessary to support the action.

The second error assigned, need not now be decided,;, as upon the third, the court below certainly erred, in preventing the defendant’s attorney from asking the, witness any question which wpuld shew that he had made the contract in his own name, or that he was interested in the event of the suit. For objections to the competence of a witness, may either he proved, or drawn from him upon a voire doire, or upon his examination, 4 Bur. 2256; and objections to the competency of witnesses, never come too late, but may be made at any stage of the cause, Esp. Rep. 37.-Judgment reversed. 
      
       But fee the cafeof Waters vs. Mattingly. fall term 1808, in which it was decided, after, fall argument, that a vendor is anfwerable for a reprefenfa-tjon made on thefale of a horfe, which proves to be falfe, whether it were the effect of fraud or miftake. See alfo, Pile vs. Shannon, &c. poft 53, Bibb vs. Pratber and Smiley, &c. Pr. Dec. 153, and M'ferren vs. Taylor, 3 Cranch 270, where fimilar decihons were given on tales of land.,
     