¶1 —A mere assertion by the seller that a horse is sound, is not a warranty, unless intended as such. (3 Stark. Ev. 1661, n.;) and the only remedy for such misrepresentation is in case for the deceit; where it must be proved that the seller knew of the falsehood of his statement, and intended to deceive. (2 Steph. N. P. 1286; 3 Stark. Ev. 1660; 1 Wh. Selw. 647.)
¶2 A mere affirmation is a warranty, if so intended; in which case, or where there is an express warranty, it enters into the contract; and the best action is assumpsit for breach of the contract, though case for breach of warranty will still lie. (2 East’s Rep. 446.) And where the action is for a breach of warranty, whether its form be assumpsit or case, it matters not whether the seller knew his statement to be untrue o'r not.
¶3 Where the action is case for deceit, a count in trover may be added, (3 Chit. Plead. 390.)
¶4 Verdict for plaintiff.