#### Barney *against*C. Dewey.

ja«B wBoaon dcfeSdsnt*,0 the plaintiff was in- and was, after by the rightful iecéss’ary toset forth .the contract between the parties, or tZ co°movíng tiftmto,lthepIadematter "eating “on or damages, cafe'eof a *gm,*be ltakto r>“ a to the title,

A recovery from the venee by the rightfull owner, is conclusive evidence against the vendor.

típ’n íuteTtíat e»!den"ewfihe trial of the Suit, In which such recovery was had, in favour of the true owner of the chattel, this is tantamount to an averment of nouce of the pendency oi the suit.

This was án áctiéú of tfespriss ori the case.. , í^hé déclafe* contained ohé coünt, in which it was stated, that thé dfefondant, on the 1st of *July,*1811, at the town of *Fori Ann,*in the county of Washington, intending to deceive rind defraud the plaintiff, did encourage him to buy a certain bay horse, théii in the possession of the defendant, of the value of 1A0 dollars^ and falsély, &c.,.affrmed that the said horse belonged to him, . the defendant, and that he had a right to sell rind dispose of a? otWV anc* thereby Caused.thé'plaintiff to purchase sa® horse, which the defendant delivered as his' horse ;’,áhd tbati-lbé' plaintiff,-cónfidiñg in thé defendant’s riffirrriritió'n, plirchased the said horse of him, the said defendant, and satisfied him therefore ; whereas, in truth, at the time of the said affirmatíon and' delivery, the défendáíít vtris riot Owner of the saitf horse, átid had no right to sell hirrij but the hófsé bélóhgéd to one *Thadeus Deniéy,*aridi-the de'fe’ndriht riveií knew thé' same : ‘ ' ^ *Dezioey^*brought ati °£ troV-eY-ift the comtiiOn píeas - of the' county of *Wáshiñgtó%*thej plaintiff, .for the value of the' said horse; that thé' plaintiff retained ari attorney and tWo counsel-fo defend' thé' same; but that, at the' *May*tefra of the said: court of Cfimrifoti' *225.pleas, tile said *Thadeus Dewey*recovered against the plaintiff 113 dollars and 80 cents damages, and 89 dollars and 16 cents costs and charges, which sums of money the plaintiff has paid and satisfied ; that the plaintiff procured the attendance of several witnesses at the said trial ; and that the defendant did then swear, in behalf of *Thadeus*Dewey, that the horse did, at the time of delivery, belong to: *Thadeus*Dewey, and that he, the defendant, had no right to part with him ; by reason of which testimony, the jury found a verdict against the plaintiff. By, reason of which false, &c., assertion and affirmation, *See.*

To this declaration the defendant demurred specially, and showed, for causes of demurrer, first, Because, it is alleged that the defendant caused, and procured the plaintiff tq buy the said horse, by affirming that the said horse belonged to the defendant, without setting forth the contract between the parties, or any consideration moving the plaintiff 'to buy of the defendant. Second, That no contract was set forth;, or that the plaintiff gave the defendant any valuable consideration. Third, Because the plaintiff hath founded his right of action upon the fact of an action brought against him by one *Thadeus Dewey,*for the . value of the horse, and his recovery thereof. Fourth,, Because the plaintiff hath spread upon the record the proceedings in the action against him by *Thadeus*Dewey, and the testimony given by the defendant therein, . '

The plaintiff joined in demurrer.

*D. Russel,*in .support of the demurrer.

He cited *Cro. Eliz.*292. *Hob.*69. *77.*41. *Cro. James,*533. 1 *Cro.*79. 144. *Doug.*620. 9 *Johns.*Rep. 291.

*Skinner,*and *Z. R. Shepherd,*contra.

They cited 2 *Term Rep.*345. 5 *Term Rep.*143. 2 *Wils. Rep.*319. Lord *Raym.*909. *Powel on Contracts,*344, 345. *Rob. on Frauds,*116. 1 Camp, N. *P. Rep.*242, 2 *Johns. Rep.*550. 1 *Chitty’s Pl.*332. 386, 1 *Johns. Rep.*517. *3 Term Rep. 51.*6 *Johns. Rep.*181. 2 *Caines’ Rep.*216.

Spencer, J.,

delivered the opinion of the court. The defendant has demurred, specially, to the declaration, for three causes; 1st. That it does not set forth the contract between the parties; 2d. That it does not state any consideration moving from *Barney*to buy the horse of *Dewey ;*3d. That thp plaintiff *226founds his right of action bn the recovery had against him by a. third person; and, 4th. Because the declaration contains the evidence of facts, and not the facts themselves.

None of the objections are well founded,' The declaration in not very technically drawn, but it contains every' essential requisite ; it is a mistake to suppose that the action is founded on a contract; it is for a fraud. Fraud, or deceit, accompanied: with a damage, is a good Cause of. action; and the late Ch. J. said, (in *Upton*v. *Vail,*6 *Johns. Rep.*182.,) that this is as just and permanent a .principle as any in our whole jurisprudence. It was not requisite to set forth the contract between the parties, or any consideration ; it is enough to state the fraud and deceit, and the damages. ’

Had the defendant given the horse to the plaintiff, affirming him to be his, and had the plaintiff been, afterwards, prosecuted 'for the horse, and subjected to costs and damages, he might1 haVe maintained an action for the fraud and damage. ^

The. fact of a recovery in the action against the plaintiff, by *Thatleus Dewey,*on the ground that the horse was pot the pro-' per.ty of the defendant, was not only a proper averment in .the' declaration,'but it would be conclusive against the defendant, if proved. *(Blasdale*v. *Babcock,*1 *Johns. Rep.*517.) There is no allegation of notice to the defendant of the pendency of the suit brought by *Thadeus Dewey,*’but there is an averment of a -fact tantamount. It is alleged, that the defendant wás a witness on that trial, and proved, himself, that he did not own the horse when he sold him to the plaintiff. With respect to the omission to state the price paid for the horse, it is only a' matter relating to the liquidation of damages ; and it is a principle that, after showing a right to damages, it is matter proper for the jury, and is not necessary to be shown to the court in the-first instance, . (1 *Chitty's Pl.*296.)

I perceive no substantial,, or even formal, objection to the de» plar$tio%

Demurrer overruled.