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.
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.
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.