#### Robertson *vs*Clarkson.

Error to the Meade Circuit.

*Fraud.*

Case. *'Case*118.

*September*18.

Oase stated.

If a demurrer to a declaration be general, and *507there be any good count, the demurrer should be overruled.

*506Jddge Graham

delivered the opinion of the Court.

This is an action of trespass on the case. The declaration contains two counts.' The defendant filed his demurrer to the whole declaration. The Court sustained the demurrer as to the first count, and overruled it as to the second. If either count was sufficient to main*507tain the action, the demurrer should have been overruled as to both,' because it was applied to the whole declaration, and not to one or more counts severally.

Though a defect in property sold or exchanged,be visible to any ordinary observer, yet if the vendor misrepresent the character and cause of that defect. which deceives the vendee, the vendor is responsible for the injury.

The proof clearly shows that, when the parties exchanged horses, the eyes of the defendant’s horse were badly diseased, and that shortly afterwards he became blind. For several previous months, they had been in that diseased condition. The defect was so visible, that any ordinary observer could have discovered it, by a very slight inspection. The plaintiff did observe and object to it, and if the proof had stopped at that point, he would have had no just cause of complaint. Had he purchased under such circumstances, although guilty of egregious folly, he would be required to abide by the Joss. The defendant, however, represented that the soreness of the horse’s eye, was caused by the stroke of a switch, inflicted,say from four to six weeks before that time, and that the eye was then fast getting well. Honesty, fair dealing and truthful representations, ought always to accompany the transactions of men. To encourage fraud, or to permit it to pass without rebuke, would tend to destroy that confidence between men, so necessary to the well-being of society. The exchange -took place about the last of October. It is proved by some half dozen witnesses, that at various times between March or April and October, each witness had made some remark upon the condition of the horse’s eye, and that to each witness the defendant invariably told, in substance, the same tale, that the horse had been hurt in the eye with a switch, but a few weeks before the time of the several conversations. There is no proof that at any time he had been so hurt; but if he had received the injury in March or April, then it could .not have been true that it occurred but a few weeks before the trade; nor was it true, that he was then fast getting well. It cannot reasonably be doubted, that these false representations as to the cause of the soreness of the horse’s eye, the time when the injury occurred, and the prospect of speedy recovery, induced! the plaintiff to make a purchase, which no man of ordinary understanding, apprised of the truth of the case,,. *508would have done. The jury must h^ve misunderstood the law of the case. A new trial' ought to have been granted.

*Walker, Morehead fy Reed*for defendant..

Therefore, the judgment of the Court below is reversed, and the cause remanded, with directions to that Court to set aside the verdict, and grant a new trial to; the plaintiff.