This was an action on the oase, tried before Caldwell, J., at the Spring Term, 1857, of Butherford Superior Court. The declaration in this case contained two counts, one for a false warranty, and one for a deceit. On the trial of the case, the plaintiff offered evidence tending to show that, in the exchange of horses, the defendant warranted the horse, traded to the plaintiff, to be sound, and a first-rate work nag.
Decided 1857-08-05
Pearson, J.
¶1
The count for a deceit alleges a scienter, and it is necessary to prove the allegation in order to support the count. Put the count for a false warranty does not allege a
scienter.
The allegation is, that there was a warranty of soundness, and that the warranty was false, in this, that the property was unsound. So, the gist of this count is a breach of the warranty, and there is no ground upon which it is necessary either to allege, or affirm, a scienter.
Lassiter
v.
Ward,
11 Ire. Rep. 443. There is no error.
