plaintiff, not then knowing the true nature, quality and condition of the same, and although said goods afterwards, viz. on &c., arrived at said Bengal, and were there unshipped and delivered, and though the same have long since been paid for by the said plaintiff, viz. at &c. Yet the said D did not regard his said promise and undertaking, but deceived the plaintiff in this, viz., that the said D, did not by the said goods so shipped by him as aforesaid, or otherwise, fulfil the said order with the best goods of the sundry sorts therein specified, all in such marketable condition as to reach Bengal in a perfect saleable state, sea and ship hazard excepted, but omitted and neglected so to do, and therein failed and made default; and, on the contrary thereof, the plaintiff saith that the said goods, were not at the time of the delivery thereof, the best goods of the sundry sorts, specified in the said order, nor were all the said goods, then in such marketable condition as to reach Bengal, in a perfect saleable state, sea and ship hazard excepted; but, on the contrary, a great part of the said goods, which had been delivered to the plaintiff, as certain cloth, commonly called Ladies' Cloth, pursuant to the said order, were not goods of that denomination and species, but were goods of another and different species and of an inferior quality and value, and were unmarketable goods; and divers other large quantities of the said goods were also, at the time of the said delivery thereof, of an inferior quality and value, than were so in that behalf ordered as aforesaid; and many of them were so old and decayed, and others were so damp, wet, and unseasoned, and were severally so loosely, carelessly and improperly packed and covered, as not to reach Bengal aforesaid, in a perfect saleable state, but by reason of such defect and imperfections in the same as aforesaid, and of such improper package and covering thereof as aforesaid, and not by or through any sea or ship hazard, reached Bengal aforesaid, damp, spotted, stained, discolored, rotten, motheaten, and in holes, and in various other respects, damaged, and in an unsaleable and unmarketable state and condition, were unshipped and delivered, to wit, at &c. ; by reason whereof one A B, who would otherwise have bought and taken the said several goods which so reached and arrived at Bengal in such unsaleable and unmarketable state and condition, as aforesaid, at an advanced price, and upon certain very beneficial and advantageous terms in favor of the said plaintiff,

refused to take or purchase them, and the said plaintiff was ultimately forced and obliged to sell and dispose of the same to other persons, for a much less sum of money than otherwise they would have produced to him, and at a loss amounting in the whole to a large sum of money, to wit, the sum of &c. at &c.

To deliver marketable goods, &c.

2d COUNT. And for that on &c., at &c., in consideration that the plaintiff, at the like request of the said D, had then and there bargained with the said D, for the purchase of, and to pay him for, certain other goods and merchandises, consisting of cloths, ratteens, kerseymeres, and cottens of various sorts, pursuant to a certain order in that behalf, to be sent to Bengal in the East Indies, for the purpose of sale there, the said D promised the plaintiff, to fulfil the last mentioned order, with the best goods of the sundry sorts therein specified, all in such marketable condition, as to reach said Bengal in a perfect saleable state, sea and ship hazard excepted; and though certain goods afterwards, to wit, &c., were shipped by the said D, for said Bengal, as and for the goods specified in the last mentioned order, and in fulfilment of the same; and though such goods afterwards and before the purchase of this writ, arrived at said Bengal, and were there unshipped and delivered; and though the same have been long since paid for by the plaintiff, to wit, at &c. ; yet &c. as before.

3d COUNT. And for that, on &c., at &c., in consideration that the plaintiff, at the like request of the said D, had then and there bought of, and bargained and agreed with the said D, for certain other goods and merchandizes, consisting of cloths, ratteens, kerseymeres, and cottons of various sorts, to be sent to said Bengal, for the purpose of sale there, the said D promised the plaintiff to furnish and supply him with such goods last mentioned, and that the same should be good and marketable goods, and properly packed; and though certain goods were thereafterwards, viz. on &c., delivered by the said D, unto and for the plaintiff, as and for the goods last mentioned, and though such goods were then and there accepted and received by the plaintiff, who was then ignorant of the real quality and condition thereof; and though the said last mentioned goods, afterwards, and before the purchase of this writ, arrived at said Bengal, and were there unshipped and delivered, as and for said goods, so bought and bargained, as last men

tioned, to wit, &c. ; yet the said D.did not regard his last mentioned promise, but thereby craftily deceived the plaintiff in this, that the last mentioned goods were not, at the time of delivery thereof, good and marketable goods, nor properly packed, but, on the contrary, were bad goods, and of an inferior sort and value, than the goods so as last aforesaid bought and bargained for by the plaintiff, and unmarketable, and were so loosely and improperly packed, as, by reason thereof, on arrival at said Bengal, to be very much soiled, discolored, wet, torn and damaged; whereby the plaintiff suffered a loss of a large sum of money, to wit, &c. 2 Went. 143.

Add a count on a promise "to furnish and supply plaintiff with goods to be packed in a merchantlike manner, and in such marketable condition, as to reach Bengal aforesaid, in a perfect saleable state, sea and ship hazzard excepted," and the common money counts.

The conclusions of these counts, except the 1st, have been varied considerably from the originals, which were extremely prolix, and alleged special damage.

NOTE. There are many cases, where it is optional with the plaintiff, to declare in Assumpsit, as on a promise, or in Case, for a tort. For instance, in many cases of negligence or non-feasance, the plaintiff may declare in Case, for the injury he has sustained by the defendant's omission to perform his duty; or he may declare in Assumpsit, on the implied promise, which is raised by law in every one, to perform what his office, occupation, trade, or business naturally leads the public to expect of him, or which public policy requires of every one in such circumstances. Thus, the plaintiff may declare in assumpsit against a carrier for a breach of the promise raised by law, or in case, for negligence, whereby the plaintiff's goods are lost. So for deceit, in the sale of goods, the plaintiff may declare on a promise, expressed or implied, in Assumpsit, or in Case, for the deceit whereby the plaintiff is defrauded. But whatever the plaintiff's choice may be, he should take care that his declaration should be made agreeably to the principles of the form of action, which he adopts. It should be borne in mind, that, in Assumpsit, a promise is always alleged, the breach of which is the gist of the action. But, in Case, there is no necessity or propriety in alleging a promise, for the gist of the action, in such cases, is either negligence or deceit, &c. There are some declarations, however, which are drawn in so ambiguous a manner, that they may be considered either in Case or Assumpsit. Thus a promise is alleged in the beginning of the declaration, and afterwards a non-performance is alleged with a statement, that the defendant has deceitfully imposed on the plaintiff, something different from what was contracted for, by reason of which the plaintiff suffers certain special damages. Whether this mode of declaring may not, in strictness, be liable to an exception for duplicity may be worth inquiry. The object of the declaration is to make the plaintiff's grievance appear, and let the defendant know what he has to answer. Now of what does the plaintiff complain in such a declaration? Is the breach of promise the gist of the action, or the imposition practiced on him? Both are alleged in the declaration, with so much certainty, that the plaintiff might offer evidence and recover on

either, alone. In this case how can the defendant plead? If he pleads not guilty, it will be bad on special demurrer, being no proper answer to the breach of contract; if he pleads non assumpsit, it is no answer to the deceit. It would therefore be much better to draw a line of distinction between the two forms of action, and compel the plaintiff to frame his declaration accordingly.

For deceit in warranty of a mare, consideration partly paid.

1st COUNT.In consideration plaintiff would buy, &c.

For that whereas the said D, on &c., at &c., offered to sell to the plaintiff, a certain mare of the said D, and thereupon, then and there, in consideration that the plaintiff, at the special request of the said D, would buy of the said D the said mare, at a large price or sum, to wit, $100, to be paid by the plaintiff to the said D, upon request, the said D promised the plaintiff, that the said mare was sound; and the plaintiff in fact saith, that he, confiding in the said promise of the said D, then and there, at the special request of the said D, did buy of the said D, the said mare, at the price or sum of $100, and did then and there pay to the said D, the sum of $70, part of the said sum of $100, and did then and there promise the said D to pay him the further sum of $30, residue of the said sum of $100, upon request, yet the said D did not regard his promise aforesaid, but craftily and subtilely deceived the plaintiff in this, that the said mare, at the time of making the promise aforesaid, was not sound, but on the contrary thereof, was unsound, and was afflicted with a certain malady or disease called the windgalls, to wit, at &c.; whereby the said mare, then and there, became of no use or value to the plaintiff.

For the doctrine of express and implied warranties on sales. See Law Summary, p. 101.

For warranties on the sale of horses. See Law Summary, p. 107.

2d COUNT. In consideration plaintiff had bought, &c.

And for that the said D, thereafterwards, to wit, the day and year aforesaid, in consideration that the plaintiff, at the like request of the said D, had bought of the said D, a certain other mare of the said D, at and for a certain other large price or sum, to wit, the sum of $100, and had then and there paid the said D the sum of $70, in part of the last mentioned sum of $100, and had then and there promised to pay the said D the further sum of $30, the residue of the said last mentioned sum of $100, upon request, promised the plaintiff, that the said last mentioned mare was

sound; yet the said D did not regard his promise last aforesaid, but craftily and subtilely deceived the plaintiff in this, that the said last mentioned mare, at the time of making the last mentioned promise, was not sound, but then was unsound; whereby the last mentioned mare became of no use or value to the plaintiff. Add the money counts. Doug. 18, Stewart v. Wilkins.

NOTE. In that case, it was held, that Assumpsit is the proper form of action where there is an express warranty. Ld. Mansfield also observes, that, "selling for a sound price may be a ground for an assumpsit, but, in such case, it ought to be laid that the defendant knew of the unsoundness." It should appear also, the plaintiff had no opportunity to examine. See Law Summary, p. 102.

For deceit on warranty, the whole consideration being paid.

1st COUNT. In consideration the plaintiff would buy, &c. For that, on &c., at &c., in consideration that the plaintiff would buy of the said D, at his special request, a certain horse, at and for a certain large sum of money, to wit, the sum of $—, the said D promised the plaintiff, that the said horse was sound; and the plaintiff in fact saith, that he, confiding in the said promise of the said D, thereafterwards on the same day, did buy the said horse of and from the said D, at and for the said price or sum of money; yet the said D did not regard his promise aforesaid, but craftily and subtilely deceived the plaintiff in this, that the said horse, at the time of making the said promise, and also at the time of said sale thereof, was not sound, but was then and there unsound; and by reason thereof, the said horse became and was of no use or value to the plaintiff.

2d COUNT. In consideration the plaintiff had bought, &c.

And for that, on &c., at &c., in consideration that the plaintiff, at the like request of the said D, had then and there bought of the said D, a certain other horse and had then and there paid to said D, a certain other large sum of money, to wil, $-, for the same, the said D promised the plaintiff, that the last mentioned horse was sound; yet the said D did not regard his last mentioned promise, but thereby craftily and subtilely deceived the plaintiff in this, that the last mentioned horse, at the time of making said promise and of said sale thereof, was not sound, but was then and there unsound; and by reason thereof, became and was of no use or value to the plaintiff. 2 Wenl. 126. F. BULLER.

Add a third count, like the second, omitting the parts in italics, and the money counts.