¶1delivered the opinion of the court.
¶2In this case we think both the counts in the declaration are in assumpsit upon a warranty, and that therefore no proof of a fraudulent sale, on the part of the vendor, was legal evidence, and that of consequence the Circuit Judge erred in his charge to the jury, in saying, “that if the defendant, in making the sale or exchange of the jack, fraudulently concealed any material matter, calculated to effect or impair the value of the animal, then he would be liable for the value of the animal.”
¶3This charge would have been appropriate, if the action had been in tort for a fraud committed by the vendor in the sale of the jack, but it is wholly inappropriate to an action of assumpsit on a warranty.
¶4The judgment must, therefore, be reversed, and the case remanded for a new trial.