delivered the opinion of the Court.

The defendant was not entitled to the custody of the paper mentioned in the bill of exceptions. It was delivered to Craddock for safe keeping. Craddock was therefore able to give the best evidence of its loss, and while his evidence could be obtained, the affidavit of the defendant was inadmissible.

The other evidence offered by the defendant, was an indirect attempt to establish the award without first ha. ing proved the submission.

As to the second assignment, it is very evident that t’>e declaration is not in assumpsit. To support an action for deceit, it is absolutely necessary to aver in the declaration, that the defendant knew of the unsoundness or defect. It was contended that the declaration was de-fecrive, because it contains no averment of a scienter, or that the defendant knew the horses to be unsound ; but it is not required that the averment should he in anv set form of words. Any allegation which necessarily implies *152a knowledge of the unsoundness is sufficient. The declaration charges, that the defendant bv falsely representing the horses to be sound, falsely and fraudulently induced ^he plaintiff to buy them of him ; and concludes with stating, so the plaintiff says, that the defendant falsely and fraudulently deceived him on the sale of said horses. The representations of the defendant could not be false and fraudulent unless he knew of the unsoundnecs; the declaration then does as substantially charge him with the knowledge of the fact, as if the scienter had been averred in other words. It is the unanimous opinion o£ the Court that the judgement be affirmed.