
    Lane vs. Hogan.
    A count charging that defendant agreed to pay f 60 in good notes, oa the bank of the United States, for a horse, with an averment that the notes paid were spurious and forged, may be well joined with a count for a deceitful representation that the notes wer§ genuine, when the action is in tort.
    An action on the case will lie to recover the price of a horse, which has been paid for in counterfeit bank notes fraudulently.
    This was an action upon the case, brought by Hogan against Lane, to recover the price of a horse sold to Lane. There are three counts in the declaration, all of which are in tort. To these the general issue is pleaded. The first count declares that Lane, in consideration that Hogan would sell to him a certain horse of the value of $60, he, Lane, would pay him therefor said sum of $60 in notes on the bank of the United States, which were of the value of $60: averment, that Lane made the payment in spurious notes, purporting to be on the bank of the United States, which were forged and counterfeited, and was well known to Lane at the time, by reason of which he lost the value of tire horse. The second and third counts are similar to the first, except that they are varied in the statement, and contain an averment of deceit and fraudulent representation by Lane, that the notes were genuine, when he knew them to be counterfeit. The proof sustained the declaration. The judge charged the jury, that an action on the case for a deceit would lie to recover the value of a horse which had keen paid for in counterfeit bank notes. The jury found a general verdict for the plaintiff. The defendant moved an arrest of judgment, assigning for reason, that there was a misjoinder of action. The motion was overruled. The defendant then moved for a new trial, and the same being overruled, defendant appealed in error to this court.
    
      W. A. Wade, for defendant in error.
    The first question presented in the recordáis, whether case will lie against an individual for a fraud in purchasing property with counterfeit bank notes. The authorities are abundant and uniform, that for a deceit or fraudulent representation, case is the appropriate and only action which can be sustained. 12 East, 636: 2 Star. Ev. 467: where it is said, that “the gist of the action is that the plaintiff was imposed upon by the fraud of the defendant.” In 1 Ch. PI. 96, the author, in treating of the forms of actions, remarks, “that assumpsit is not the proper remedy in case of deceit not apparent on the face of a written contract, but the remedy should be case for a fraudulent representation.” See also 11 East, 11.
    2. If case is the proper action, is the cause of action sufficiently stated in the declaration, to authorize a judgment? The declaration follows the precedents laid down in 2 Chitty’s PI. 680, &c. A bargains with B for a horse; B falsely represents him to be sound, and quiet in harness; the declaration then avers that at the time of the sale, the horse was ungovernable, &c. and that the defendant falsely and fraudulently deceived the plaintiff, &,c. In the case before the court, defendant below represented his money to be genuine, which was counterfeit, and in the precedent in 2 Chitty, defendant represented his horse to be genuine and quiet, when he was counterfeit and ungovernable; the only difference is, that in one case there was counterfeit money, and in the other a counterfeit horse.
    3. Many defects are cured in a declaration, after ver-diet, which, if objected to by special demurrer, would be fatal; and all objections for defects in point of form, will be cured by verdict. 1 Ch. PI. 359, 360: 1 John. Cas. 100: 2 John. Rep. 571: 11 John. Rep. 143. Lord Eldon in remarking on this subject, said “the court will infer almost any thing after verdict.” Bos. and Pul.~259.
   Peck, J.

delivered the opinion of the court.

The question mainly insisted on in this case is, that there is a misjoinder of action. There are three counts in the declaration, and a finding upon the whole; the first count declares that Lane, in consideration that plaintiff, Hogan, would sell unto him a certain horse of the value of $60, he, the said Lane, would pay him therefor, said sum of $60, in notes on the bank of the United States, which were of the value of $60: averment, that he made payment in spurious notes, purporting to be on the bank of the United States, which were forged and counterfeit, which was well known to said Lane at the time, by reason whereof he lost the value of said horse. The other two counts, though varied in the statement, are in substance' like the first. They are all in tort and well joined. The objection fails, and the judgment is affirmed.

Judgment affirmed.  