
    George H. Thomas v. Adelbert Schram.
    
      Justice’s cou/rt — asswnvpsit.
    A declaration in justice’s court set forth that by false warranty of a horse defendant had obtained plaintiff's note for it, and that on discovery of the fraud plaintiff had rescinded the sale, tendered back the horse and demanded the note, hut defendant had refused to surrender it, to plaintiff’s damage, its amount. Held that this may he sustained as a declaration in assumpsit. •
    Error to Genesee. (Newton, J.)
    Oct. 10.
    Dec. 21.
    Assumpsit. Defendant brings error.
    Affirmed.
    
      Lee c& Aitlcen, Long & Gold and Isaac Marston for appellant.
    
      Howard <& Thayer and Wisner & Johnson for appellee.
    One wbo rescinds for fraud and tenders back the article bought, can recover under the common counts for the money received by defendant to his use: Moore v. Mandlebaum 8 Mich. 433; Beardslee v. Horton 3 Mich 563; Spencer v. Towles 18 Mich. 11; Scott v. Bush 29 Mich. 523.
   Per curiam.

This suit was begun in justice’s court. The questions in it arise upon the amended declaration upon which the trial took place. In that declaration the plaintiff complains that defendant sold him a horse, and by false warranty obtained from him a promissory note for the sum of one hundred and fifty dollars; that plaintiff, on discovery of the fraud, rescinded the sale and tendered back the horse and demanded back the note; that defendant refused to surrender the note, to plaintiff’s damage the amount thereof, wherefore he brings suit. The defendant claims that this is a declaration in tort; and if it is, the justice had no jurisdiction of the case under it. I do not think this is the case. The declaration is in assumpsit to recover back the value of that which defendant has obtained without consideration, by means of a fraud. This was the view taken by the circuit judge.

I do not think any of the errors relied upon are well assigned, but the others seem to me to require no special attention.

The judgment should be affirmed.  