
    Cook versus Haggerty.
    1. Where the averment is, that defendant engaged to safely keep, pasture, specially care for, and attend to certain horses of plaintiff, for a reasonable compensation ; and the breach assigned is, that “ defendant not regarding his duty, in that behalf, conducted himself so carelessly, negligently and improperly, and by his absolute misuse and abuse, in and about the keeping and pasturing, caring for, and attending to" the horses, that they were injured ; the declaration may be treated as in assumpsit, and it is not, therefore, error to permit a change of plea from not guilty to non assumpsit, payment, and set-off.
    2. That proper care is averred to have been the duty of defendant under the contract, does not necessarily make the declaration sound in tort.
    
    Error to the Court of Common Pleas of Erie county.
    
    In May, 1857, Cook, the plaintiff in error, and below, entrusted to the care of Haggerty, who was a farmer, six horses to be pastured. In July following, Cook learning that his horses were being abused, took them away from Haggerty, and brought suit for damages, and charged in his declaration, that the horses were entrusted to Haggerty to be pastured and specially cared for, for a reasonable reward, but that the defendant not regarding his duty, “ by himself and his servants in that behalf, conducted himself so carelessly, negligently and improperly, and by his absolute misuse and abuse, in and about the keeping and pasturing, caring for and attending to the said horses, ,in and upon his premises aforesaid, that by and through the negligence, misuse, abuse, and improper conduct of the said defendant and his servants in that behalf, the said goods and chattels then and there became, and were greatly injured, damaged, and destroyed, and wholly lost to the said plaintiff and in the second count he charges, after alleging the horses in his possession, u and thereupon it then and there became, and was the duty of the said defendant, whilst he so had the care of the said horses, to take due and proper care thereof; yet the said defendant, not regarding his duty in that behalf, did not, nor would whilst he so had the care of the said last mentioned horses, take due and proper care of the same, but wholly neglected so to do, and took such bad care thereof; and absolutely so misused and abused the same, that afterwards, to wit, on the day and year aforesaid, the said last mentioned horses became and were greatly injured and damaged, and wholly lost to the said plaintiff.”
    ' To which defendant pleaded “ not guilty.” The case was arbitrated, and an award for plaintiff, from which defendant appealed. April 28,1858, jury empanelled. Same day “ defendant moves the court for leave to amend his plea, by pleading non assumpsit, 
      payment, and set-off.” Amendment allowed. Plaintiff’s counsel objected, the plea not being germane to the declaration, that being in case for tort; and now assigns the same for error.
    
      Douglass and Babbitt, for plaintiff in error,
    cited Saunders Plead. 725, 726; 1 Chit. Pl. 135, 136; Livingston v. Oox, 6 Barr, 363; Seitzinger v. Steinberger, 2 Jones, 380; Pittsburgh v. Grier, 10 Har. 65.
    
      Marshall, for defendant in error,
    cited Weall v. King, 12 East, 452; Wilt v. Welsh, 6 Watts, 10; M‘Cahan v. Hirst, 7 Id. 175; Tod v. Fegley, Ib. 542; Hunt v. Wynn, 6 Id. 47; Steigleman v. Jeffries, 1 S. & R. 477; Carman v. The Franklin Insurance Co., 6 W. & S. 155; Royall v. Rowles, 1 Ves. 875.
   The opinion of the court was delivered by

Strong, J.

— The liability of the defendant in this ease, is charged to have resulted from his contract as bailee. The declaration charges him with having neglected to perform the duty which his contract imposed upon him. It sets out the contract in full. Then follows an assignment of its breach. The engagement of the defendant is averred to have been that he should safely keep, pasture, specially care for and attend to, certain horsed of the plaintiff, for a reasonable compensation. The breach alleged, is, that he conducted himself so carelessly, negligently, and improperly, and by his absolute misuse and. abuse in and about the keeping and pasturing, caring for, and attending to the horses, that they were injured. This is the substance of both counts. The declaration may, therefore, without any violent construction, be treated as one in assumpsit. That proper care is averred to have been the duty of. the defendant under the contract, does not necessarily make the declaration sound in tort. Every action of debt is based upon an alleged legal duty. Treating this as an action ex contractu, there was no error in permitting the change of pleas. In this view, it becomes unnecessary to inquire what are the rights of a defendant in an action in form ex delicto, but founded on a cause of action for which assumpsit would lie.

The judgment is affirmed.  