#### John Farrar *v.*Philip Alston.

From Chatham.

When no loss is occasioned by a falsehood, an action for a deceit will not lie; neither will it, when ordinary prudence would have prevented the deception.

A being surety for B, is falsely informed by C, administrator of B, that the debt is paid: trusting to this representation, A uses no means to secure himself. Qu. Does deceit lie ?

Case for a deceit. The allegations of the declaration were, that the Plaintiff and one *Drake*became sureties for one *Ramsay,*to the Bank of *Cape-Fear;*that upon the death of *Ramsay,*the Defendant, being his administrator, *falsely*and *fraudulently*affirmed to the Plaintiff that the note was taken *up;*upon which affirmation the *70Plaintiff relying, used no means to secure himself; that afterwards, when the assets of *Ramsay*were exhausted by other debts, and when *Brake,*the co surety, <« who was, at the *time of their becoming jointly bound*as aforesaid, amply sufficient, to pay one half, had failed and become unable to pay any part thereof,” the Plaintiff had been compelled to pay the whole debt.

It appeared on the trial, that *Ramsay*died in October, 1820, possessed of a large estate: administration was committed to the Defendant in November following; upon which the Plaintiff and *Drake,*fearing that *Ramsay’s*estate would prove insolvent, applied to the Defendant, who *promised to pay the debt.*In March, 1822, suit was commenced by the Bank against the Plaintiff and the sureties; shortly after which the Defendant told *Brake,*who communicated it to the Plaintiff, *that the debt was paid*; execution for it, however, issued, and was satisfied by the Plaintiff.

His honor Judge Danieí charged the Jury, that if the Plaintiff had been lulled asleep by the false declaration of the Defendant, and in consequence thereof had been compelled to pay the debt, he was entitled to a verdict, although the Defendant had assets sufficient at the time, to pay the debt; and that the affirmation made to *Drake,*and communicated to the Plaintiff, was evidence to them.

A verdict wa3 returned for the Plaintiff. A rule for a new trial being discharged, and Judgment rendered upon the verdict, the Defendant appealed.

Several points were made in the cause, which it is not necessary to notice.

JVbsft, for the appellant.

1st. The declaration sets out nothing but a naked lie. It contains no averment that the Plaintiff suffered from the falsehood of the Defendant. No *scienter*of the Defendant is alleged; it does not even aver that the amount of the debt has not been refunded to the Plaintiff.

*712d. The breach of promise to the Plaintiff will not support this action: neither will-the false affirmation s * , made to *Drake*enable him to recover. (2 *Starkie’s E. 473, note L.*1 *Esp. R.*290. *Peak’s Cases,*226. 2 *Star-, kie’s E.*471. 12 *East.*631.)

3d. The Plaintiff, by using ordinary diligence, might have prevented any ill consequence arising from the falsehood complained of,* and when this is the case the action cannot be sustained.

*Gaston,*for the appellee.

Admitted that no action of this form would lie for the, breach of promise made to the Plaintiff; he however contended,

1st. That the declaration set out a sufficient cause of action to warrant a judgment after verdict; for a good title defectively stated, is aided by verdict. (1 *Tidd,*406. *do.*836.)

A sufficient title to damages appears upon the face of the declaration ; for whenever fraud and damage concur, this action lies. (3 *D.*& *E.*56. *Cro. J.*474. 1 *Salk.*311.)

2d. Where the Plaintiff has the full means of learning the falsity of an allegation, this action will not lie: this was a matter known only to the Defendant and to the creditor. (1 *Salk.*211.)

Sd. The affirmation made to *Brake*supports this action : it was false and damaged the Plaintiff.

HeNdersoN, Judge

The declaration is defective for want of an allegation, that the frayd charged on *Ms-ton,*was intended to.injure *Farrar.*It is also defective,. for want of an allegation as to the sufficiency of assets in *Mston’s*hands, for *Farrar’s*indemnity, at the time the assertion was made,that the debt was paid, and as to the solvency of *Drake*at the same time: it states, it is true, *Brake’s*solvency at the time he became joint surety, but that is not, the material fact. But there is a *72substantial error in the Judge’s charge. He instructed the Jury, that the Plaintiff ought to recover, although it * ,J was shown that *Mston*then had assets. This would de-gtroy the very foundation of the action, for the complaint is, that during the time that *Farrar*was lulled into security hy the fraud of *Mston,*the assets of *Ramsutj,*the fund to which *Farrar*was to look for his indemnity, were swept away, and that he was left without the means of obtaining satisfaction, upon *Mamsatfs*implied promise of indemnity; for the action is not founded on his being obliged to pay the debt, for he contracted that obligation without the agency or interference of *Mston.*The Jury were improperly instructed, and there should be a new trial. What is said above, as to,there being no chai’ge, that the fraudulent act was intended to injure Farrar, was designed to appJy to such a case as *this, where the*injury is not the direct, immediate and natural consequence of the fraud, for when such is the case, perhaps it needs no averment that such was the intent; as the law presumes that was intended, which is the immediate, direct, and natural consequence of an act, and the Court, as the law draws the inference, does not require that the Jury should do it. As this case may possibly be so amended as to present a statement of facts, Which will enable the Plaintiff to recover, 1 think it best to reverse the Judgment, and award a *new*trial rather than arrest the Judgment. The Judge of the Superior Court will then exercise his discretion in permitting the Plaintiff to amend.

Ham, Judge.

Without looking strictly into the pleadings in this case, I concur in the opinion, that the rule for a new trial should be made absolute, because it does not appear, that in conséquence of the deceit complained of, the. Plaintiff cannot be compensated out of the assets of *Mamsaifs*estate, in the hands of the Defendant.

*73Tatxok, Chief Justice.

I do not think that either of the two essential grounds of an action of deceit is estab-Iisiied in this case, viz. a fraud committed by the Defendant, or a damage resulting from such fraud to the Plaintiff. The fraud is alleged to consist in *Alston’s*telling *Drake,*that he, *Alston,*had paid off the debt for which the Plaintiff and *Drake*were security. But though this assertion was untrue, the means of ascertaining the truth were completely within the power of the Plaintiff! and if it were of sufficient importance to regulate his conduct in the transaction, it would obviously seem necessary, in the first place, to ascertain whether it were true or not. A person of ordinary prudence would not permit himself to be lulled into security, by giving full credit to an assertion, which was not made to himself, but reported to him by a third person. He would at least have applied to *Alston,*to ascertain the time and circumstances *attending the*payment, and how far the assertion had been deliberately made. But the sure way would have been to enquire at the Bank, whether he were still held responsible for the debt. If the Plaintiff was in fact deceived, it was the consequence of his credulity and negligence, and in such a case, the law does not profess to administer a- remedy.

It does not appear from the declaration, or the statement, that any loss was occasioned to the Plaintiff, which would not equally have happened, if the promise or assertion had never been made.

The Defendant had no sooner administered on *Eam-say’s*effects, than an apprehension was entertained that the estate was insolvent, and the Plaintiff and *Drake*applied in consequence to the administrator, who assured them that he had assets, and would pay the debt. This was about November, 1821, and the Plaintiff took no further step j when about four months thereafter, a writ was sued out against the administrator and the- *tm**74endorsers, and at the return term in March, 1822, a joint plea was entered. ■*

It might have been expected, that when the adminis-t).at(>r had not paid the debt in that time, but suffered the endorsers to be sued, that it would impair their confidence in his promises, and urge, at least, the Plaintiff, the only solvent one, to provide for his own security.

But so far from its having this effect, the Plaintiff was again quieted, soon after the institution of the suit, by this assertion of- *Jllston,*reported to him by *Brake,*and allowed the suit to depend, until the fall of 1824, when the judgment was recovered. I do not perceive that the Plaintiff’s paying the money was occasioned by the promise or assertion of the Defendant, but rather by his becoming endorser for a person whose estate was probably insolvent from the first, but if not, from his own negligence, in not securing himself when he might do so.

I think the Jury have been misdirected in point of law on the merits of the case ; and it is not therefore necessary, to give an opinion on the minor points made in the. cause. There ought to be a new trial.

Judgment reversed.