ADEN WATERMAN, APPELLANT,

v.

SAMUEL R. MATTAIR, APPELLEE

SEMMES, J. :

This is an action on the case, for deceit, ill the sale of a negro slave, and the points presented to us are purely questions of practice.

The declaration alleges the warranty and fraud, on the part of the defendant, in the sale, and avers that the plaintiff, by reason of the unsoundness of said slave, incurred great expense for medical services, and in feeding and clo thing her. No bill of particulars was filed with the declaration, but the defendant, by his attorney, pleaded to the action, and the issues were thereupon made up. After this, and when the cause was called for-trial, the defendant moved the Court for an order on the plaintiff to file a bill of particulars, which motion was refused, and this is assigned as error on the part of the Court below.

It is very clear, and cannot admit of argument, that it is too late, after plea to the action, for the defendant to demand a bill of particulars. The only object of it, is to apprise the defendant of the nature and extent of the cause of action, in order that he may plead with the greater certainty.

Our statute requiring the plaintiff to file with his declaration a copy of the cause of action, is merely directory; but still, the defendant may refuse to plead, until a copy is filed or furnished him. He has aright to his rule on the plaintiff when made at a proper stage of the case, after appearance, but he waives this right by plea to the action, although it is discretionary with the Judge who tries the case, to grant the order at any time before the trial. 2 Arch. Prac., 222. Circumstances may arise in the progress of a'cause, where it would be the exercise of a sound discretion, on the part of the Court, to relax the usual rule.

The second ground of error assigned by appellant, is, that the covenant of warranty from him to appellee, was, notwithstanding his objection, admitted by the Court below, as evidence on the trial, when in fact it was not set out in the declaration, either in substance or form. The covenant is not incorporated in the bill of exceptions, as it should have been, nor is it to be found in the record before us. If a variance in fact exists between the declaration and the covenant, it is not in the power of this Court to ascertain it, with the defective record before us. It is unques tionabiy the duty of counsel to see that the record of Cas,es appealed from is complete, and had an application been made to us, it would have been an easy matter to have supplied this omission. "We can hardly be expected to review the decisions of the Courts below, unless the facts upon which the decisions are based are brought before us*

The third and last error assigned, is, that a copy of' the covenant was not filed with the declaration. Had this been necessary* it was waived by the plea. But it was not necessary, The statute requires that all bonds, notes, bills of exchange, covenants and accounts, upon which suit may be brought, or a copy thereof, be filed with thp declaration. Thomp. Dig., 331.

But suit is not brought op the covenant. It is not the cause of action, but the inducement to it. The plaintiff’s .right to recover* it is true, grows, out of the contract of' warranty, but the action is not on a breach of the contract, but the fraud or deceit of the defendant, in the sale, of an unsound negro slave- — -a' matter outside of the covenant. The gravamen is the deceit, and not a breach of the warranty, Williamson vs. Allison, 2 East, 246. In an action on the case, v/pon< a warranty, it is necessary to state the whole consideration, the substantial parts of the warranty, and the breach of which the party complains. Miles vs. Sherwood, 8 East, 7. But in the case of Barney vs. Dewey, 13 John. Rep., 224, it was held* that in an action for deceit, it was not requisite for the plaintiff to set forth the, contract in his declaration* or any consideration, but simply to state the fraud or deceit and damages. And although it is true, that the contract stated is only matter of inducement, and therefore, the same certainty is not requisite as if the action was on the contract itself, yet, whatever is alleged as inducement, must be proved, and a variance in this respect would be as fatal, though the action is on a collateral matter, as if on the contract;

The whole case as presented to us, is too plain to admit of any doubt. A mere statement of the facts, as presented by the bill of exceptions, would seem to afford a conclusive answer to the several grounds of error assigned by appel* lant.

Judgment below affirmed-,