Horace Gray

“ The doctrine of the case is that, when there is a warranty, that is the gist of the action, and that it is only when there is no warranty that a scienter need be alleged or proved. It is nearly a half century since the decision, and during that period the point has been considered at rest, and many actions have been brought in tort as well as ex contractu on false warranties.' And so in House v. Fort, 4 Blackf. 293, 294, it was said that 'the breach of an express warranty is of itself a valid ground of action, whether the suit be founded on tort or on contract ”

“ As the evidence entitled the plaintiff to go to the jury upon the issue of express warranty as to the genuineness of the bonds and coupons, and as the jury were in effect instructed that he could not recover, unless upon allegation and proof of the scienter, the judgment is reversed, and the case is remanded, with instructions to set aside the judgment and grant a new trial. ”