majority">By the Court, Parker, P. j.

The complaint includes counts for a horse sold, and for money lent, had and received, &c. Also a count alleging that the plaintiff sold a horse to. the defendant and received in consideration a note for $'60, against Jacob D. Woolford, and that the defendant warranted that Woolford was responsible and the note collectable. The answer was a general denial. In the pleadings there is no suggestion of fraud ; the plaintiff seeks only to recover on contract, and the cause was evidently tried under that view of the case;

It is insisted by the plaintiff’s counsel that, under his first count, for a sale of the horse, he may treat the transfer to him of the note as tainted with fraud, and therefore a nullity. But the proof will support no such claim. If the plaintiff had a right to avoid the contract, for fraud, he could not maintain an ' action until he had tendered back the note. (1 Hill, 304. 1 Denio, 69. 2 id. 136. 13 Barb. 641.). And that should have been promptly done. A delay of four years was a confirmation of the contract. (2 Denio, 138.)

Regarding the action as brought to recover on the contract, there are several insuperable objections to a recovery. It is enough, however, to point out one, which is decisive of this case; The plaintiff was permitted by the justice to prove the insolvency of Woolford by reputation. This was clearly erroneous, and the judgment of the justice must be reversed.

Parker, Wright and Watson, Justices.

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