The first count in the declaration charges, that the Defendants, knowing the slave to be unsound, by a false affirmation of his soundness procured a sale of the slave to the Plaintiff. The second, charges, that the Defendants advised the Plaintiff to buy the slave, and falsely affirming him to be sound, procured the Plaintiff to buy him, whereas they knew the slave to be unsound. In both counts the false affirmation is stated to be the means by which the Plaintiff was induced to make the bargain, and the making that affirmation, with a knowledge to the contrary, whereby the Plaintiff was injured, constitutes the cause of action. The action is clearly conceived in case, on tort, and the declaration as strongly marked with those features, as in the case of Pasley v. Freeman, (3 Term Rep. 51,) the foundation of which is fraud and deceit in the Defendant, and damage to the Plaintiff. The affirmation, as stated in the declaration, is not laid in the way of a contract, the breach of which has brought damage on the Plaintiff, but as a deceit practised upon him, whereby he was induced to make the contract. In some cases, it is true, that an affirmation, as to the title of a chattel, when the seller is in possession, will be considered as a warranty, for as to the title, tiie law itself implies a warranty; and even without such an affirmation, if a man sell goods as his own, and the title prove deficient, the buyer may recover Satisfaction. — (2 El. 451.) But as to the soundness of goods, an affirmation does not amount to a warranty, unless it appear, on the evidence, to have been so intended. In declaring on a warranty, the charge is laid in assumpsit, either warrantimndo vendidit, or he *104undertook and faithfully promised; but in this case there is nothing like a promise and undertaking. And what shews, beyond all controversy, that the. action was not ir,tcni^ to 011 a warranty, is, that a bill of sale was given without a warranty, and that Bond expressly refused to enter into one. That 'no contract existed, is farther evident from this,’ that whatever was said concerning- the soundness of the slave, was before the sale, and the true contract, of the parlies was reduced to writing byr the bill of sale, to which no other terms or stipulations can be added. “1 hold,” says one of the Judges, “that if a man brings me a horse, and makes any representation whatever of his quality and soundness, and afterwards we agree, in writing, for the purchase of the horse, that shortens and corrects the representations ,* and whatever terms are not contained in the contract, do not bind the seller, and must be struck out of the case.” — (4 Taunton, 786.) But if there is any fraud in the case, that cannot be done away by the contract, and the buyer may, notwithstanding, bring ’his action on the case, which is the only one that could be brought in this case. It, therefore, seems' to me, that those authorities do not apply, which go to shew that a breach of contract cannot be converted into á tort, for, in all of them, there was a clear contract; and, in the leading ones, the Defendants had a joint ownership in the property. I do not think that it was, in the least degree, necessary that it should he left to the Jury, to say whether the affirmation, stated in the declaration, was made by the Defendant or not, since it was merely inducement and introductory to the gravamen, which is the fraudulent concealment of a defect in the slave; and, generally, where a person is sued, in tort, for knowingly selling an unsound article, the charge is laid either with a false affirmation of the soundness, or that the Defendant sold it for, and as, a sound article, or with a false warrant ty, all which terms import the same thing, and are never *105held as making contract the gist of the action. As the Jury have verified the charges in the declaration. I am of opinion that the Plaintiff is entitled to recover, and that there ought not to be a new trial.
And of tius ovinrnn~ w~ e the othei J ti~1ges