Storrs, C. J.
The motion for a new trial in this case being abandoned by the defendant, it is unnecessary to consider any of the points which it might involve. The only question before us is the one which has been made on the motion in [328]*328arrest of judgment; namely, whether the death of the original plaintiff, during the pendency of this suit, prevented it from being prosecuted further by his administrators.
By the rules of the common law an action is abated by the death of the plaintiff or defendant, and can not be revived in favor of their respective executors or administrators; and if the cause of action survives it is necessary to bring a new suit. But the 80th section of the act, for the regulation of civil actions, (Bev. Stat, tit. 1, § 80,) provides, that if the plaintiff, in any action pending in the superior court, shall die before final judgment, the same shall not abate if it might originally have been prosecuted by his executor or administrator, and that in such case the executor or administrator may enter and prosecute the same in his own name. If, therefore, any of the causes of action described in the several counts of the declaration in this suit might have been originally prosecuted by the administrators of the plaintiff, the suit, in regard to such causes of action, was in our opinion properly prosecuted by those administrators, although none of the other causes of action declared on were of such a nature that either the common law or the statute would allow the action tó be prosecuted for them after the death of the plaintiff. No good reason can be given why, under that statute, the abatement of the action by his death as to some only of the causes of action for which it was brought, should have the further effect of destroying it as to other causes of action for which it was also brought and which could have been originally prosecuted by his representative. In regard to the latter causes of action the suit obviously should stand on the same ground, and be allowed to be prosecuted under the statute by such representative, as if they were the only causes of action set forth in the declaration, while, as to the other causes of action not embraced in the statute, the common law principle should be applied to them, and the suit, as to them, should be deemed to be abated. The writ and declaration are plainly divisible in respect to the several counts or causes of action set out in the declaration, and may well stand as to those which are sustained and allowed [329]*329to be prosecuted by the statute, and be abated as to the others. If, for any of the causes of action declared on in this ease, an action could have been originally brought by the administrator of the plaintiff, the suit, on the death of the latter, ought not to stand in a worse condition as to them, than if the administrator had originally brought the suit for those causes of action and also for others which it was not competent for him to prosecute, in which case it could not be successfully claimed that the action would fail as to any except the latter. And if, in the present case, the suit could have been prosecuted for some of the causes of action declared on, but not for the others, and the defendant did not formally cause the writ to be abated as to the latter, but suffered the suit to proceed as to both, the court would not, after verdict, arrest the judgment, but would presume that the evidence sustained the counts on the causes of action which survived, and that the verdict was given on those counts alone ; on the same principle upon which our courts, contrary to the rule which prevails in England, sustain a judgment on a declaration, some of the counts of which are good and others bad. We do not consider it necessary, in the present case, to determine whether the causes of action in the last two counts of the declaration are of such a character that an action on them might be originally brought by the administrators of Booth, the original plaintiff, so that, under the statute which has been mentioned, the suit as to them might be prosecuted after his death by those administrators, because we are clearly of the opinion that the first count is for a cause of action for which a suit might originally have been brought by them, and that consequently, in accordance with the views we have expressed, they might prosecute this suit as to that cause of action, and therefore that judgment should not be arrested.
It is a familiar and well settled principle, that, upon the death of either of the parties to a contract, the cause of action upon it survives to and against his executors and administrators. The first count in this declaration is in tort for a breach of warranty on the exchange of the cattle of the defend[330]*330ant for those of the plaintiff, and is precisely in conformity to the precedents in actions in form ex delicto for what is termed a deceit by means oí a false warranty, excepting that in those precedents a scienter is usually alleged, whereas in this case it is omitted—it not being averred that the defendant, at the time of the exchange, knew that his cattle did not answer the warranty. The omission of a scienter would seem to evince, more palpably than if it were inserted, that the cause of action in this count is a breach of warranty merely, and not a fraud; that the action is brought on a contract as such, viz., a contract of warranty; and that therefore the gravamen of the count is merely the breach of a contract, and not fraud. But it is not necessary at this day to consider the effect of the averment or omission of a scienter in cases of this description; for it has been too long and decisively settled to be now a subject of dispute, that in a declaration on a false warranty, like the first count in this case, it is wholly immaterial whether there be an allegation of a scienter or not; that if there is such an averment it may be disregarded as having been unnecessarily made; that the gravamen of the action is a breach of warranty and not a fraud practised by the defendant on the plaintiff by means of false representations fraudulently made; and that therefore the plaintiff is entitled to recover on such a count, on proof of the alleged warranty and a breach of it, without adducing any evidence of the scienter. In the leading case of Williamson v. Allison, (2 East., 446,) where the declaration was framed ex delicto, for a breach of warranty, in a particular respect, of the quality of goods sold by the defendant to the plaintiff, and alleged that the defendant knew that the goods were not such as they were warranted to be, it was decided that that allegation was unnecessary and need not'be proved; and a verdict for the plaintiff, on proof of the warranty and that it was false, was established on that ground.
Lord Ellenborough says, that the warranty is the material averment, and it is sufficient to prove that broken to establish the deceit, which consists, in that kind of action, of the breach of the warranty; and also, that whether the action for a [331]
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Storrs, C. J.
The motion for a new trial in this case being abandoned by the defendant, it is unnecessary to consider any of the points which it might involve. The only question before us is the one which has been made on the motion in [328]*328arrest of judgment; namely, whether the death of the original plaintiff, during the pendency of this suit, prevented it from being prosecuted further by his administrators.
By the rules of the common law an action is abated by the death of the plaintiff or defendant, and can not be revived in favor of their respective executors or administrators; and if the cause of action survives it is necessary to bring a new suit. But the 80th section of the act, for the regulation of civil actions, (Bev. Stat, tit. 1, § 80,) provides, that if the plaintiff, in any action pending in the superior court, shall die before final judgment, the same shall not abate if it might originally have been prosecuted by his executor or administrator, and that in such case the executor or administrator may enter and prosecute the same in his own name. If, therefore, any of the causes of action described in the several counts of the declaration in this suit might have been originally prosecuted by the administrators of the plaintiff, the suit, in regard to such causes of action, was in our opinion properly prosecuted by those administrators, although none of the other causes of action declared on were of such a nature that either the common law or the statute would allow the action tó be prosecuted for them after the death of the plaintiff. No good reason can be given why, under that statute, the abatement of the action by his death as to some only of the causes of action for which it was brought, should have the further effect of destroying it as to other causes of action for which it was also brought and which could have been originally prosecuted by his representative. In regard to the latter causes of action the suit obviously should stand on the same ground, and be allowed to be prosecuted under the statute by such representative, as if they were the only causes of action set forth in the declaration, while, as to the other causes of action not embraced in the statute, the common law principle should be applied to them, and the suit, as to them, should be deemed to be abated. The writ and declaration are plainly divisible in respect to the several counts or causes of action set out in the declaration, and may well stand as to those which are sustained and allowed [329]*329to be prosecuted by the statute, and be abated as to the others. If, for any of the causes of action declared on in this ease, an action could have been originally brought by the administrator of the plaintiff, the suit, on the death of the latter, ought not to stand in a worse condition as to them, than if the administrator had originally brought the suit for those causes of action and also for others which it was not competent for him to prosecute, in which case it could not be successfully claimed that the action would fail as to any except the latter. And if, in the present case, the suit could have been prosecuted for some of the causes of action declared on, but not for the others, and the defendant did not formally cause the writ to be abated as to the latter, but suffered the suit to proceed as to both, the court would not, after verdict, arrest the judgment, but would presume that the evidence sustained the counts on the causes of action which survived, and that the verdict was given on those counts alone ; on the same principle upon which our courts, contrary to the rule which prevails in England, sustain a judgment on a declaration, some of the counts of which are good and others bad. We do not consider it necessary, in the present case, to determine whether the causes of action in the last two counts of the declaration are of such a character that an action on them might be originally brought by the administrators of Booth, the original plaintiff, so that, under the statute which has been mentioned, the suit as to them might be prosecuted after his death by those administrators, because we are clearly of the opinion that the first count is for a cause of action for which a suit might originally have been brought by them, and that consequently, in accordance with the views we have expressed, they might prosecute this suit as to that cause of action, and therefore that judgment should not be arrested.
It is a familiar and well settled principle, that, upon the death of either of the parties to a contract, the cause of action upon it survives to and against his executors and administrators. The first count in this declaration is in tort for a breach of warranty on the exchange of the cattle of the defend[330]*330ant for those of the plaintiff, and is precisely in conformity to the precedents in actions in form ex delicto for what is termed a deceit by means oí a false warranty, excepting that in those precedents a scienter is usually alleged, whereas in this case it is omitted—it not being averred that the defendant, at the time of the exchange, knew that his cattle did not answer the warranty. The omission of a scienter would seem to evince, more palpably than if it were inserted, that the cause of action in this count is a breach of warranty merely, and not a fraud; that the action is brought on a contract as such, viz., a contract of warranty; and that therefore the gravamen of the count is merely the breach of a contract, and not fraud. But it is not necessary at this day to consider the effect of the averment or omission of a scienter in cases of this description; for it has been too long and decisively settled to be now a subject of dispute, that in a declaration on a false warranty, like the first count in this case, it is wholly immaterial whether there be an allegation of a scienter or not; that if there is such an averment it may be disregarded as having been unnecessarily made; that the gravamen of the action is a breach of warranty and not a fraud practised by the defendant on the plaintiff by means of false representations fraudulently made; and that therefore the plaintiff is entitled to recover on such a count, on proof of the alleged warranty and a breach of it, without adducing any evidence of the scienter. In the leading case of Williamson v. Allison, (2 East., 446,) where the declaration was framed ex delicto, for a breach of warranty, in a particular respect, of the quality of goods sold by the defendant to the plaintiff, and alleged that the defendant knew that the goods were not such as they were warranted to be, it was decided that that allegation was unnecessary and need not'be proved; and a verdict for the plaintiff, on proof of the warranty and that it was false, was established on that ground.
Lord Ellenborough says, that the warranty is the material averment, and it is sufficient to prove that broken to establish the deceit, which consists, in that kind of action, of the breach of the warranty; and also, that whether the action for a [331]*331false warranty be in tort as for a deceit, as was the ancient practice, or in assumpsit, which is a concurrent form of remedy in such cases, and has been introduced in modern times comparatively, the form of the action does not vary the proof: and Lawrence, J., after stating that since the form of declaring in assumpsit had been introduced he had drawn a hundred declarations on the same subject in tort, and referring to the precedents of that sort in the books, where a warranty is stated, says, that these are not drawn as laying the gravamen on the deceit, but on the warranty broken; and agrees that the scienter may be struck out altogether and the plaintiff still maintain his action in tort on warranty broken : and Le Blanc, J., says, that the insertion or omission of the fact of the defendant’s knowledge that the wine was unfit for sale according to the warranty makes no difference in the cause of action declared on, and therefore it may be struck out altogether. The doctrine of this case has been frequently recognized and acted on, and has never to our knowledge been departed from or even questioned by the courts. A breach of contract, the contract of warranty, is therefore the injury complained of in the first count in this case ; and a cause of action for such an injury survives to executors and administrators.
On the question of survivorship, we consider it immaterial whether the form of the remedy adopted is in tort or in contract, provided the cause of action is founded on a contract. The form of action brought to redress a wrong, sometimes, and indeed usually, indicates its nature, whether as arising independently of contract or not; but this is far from being invariably so, there being many cases where the action, the cause of which grows out of a breach of contract, may be in form either ex delicto, as in case, or ex contractu, as in assumpsit. In determining whether a cause of action survives to the personal representative, the real nature of the injury or claim ought to be regarded, and not the form of the remedy by which it is sought to be redressed or enforced. 1 Chitty PI., 68, 90,134,135,
[332]*332Judgment therefore in this case should not be arrested.
In this opinion the other judges concurred.
Motion in arrest overruled.