
    Philip Morgan & Al. versus Pliny Bliss.
    A gives to B a note not negotiable, declaring it was intended to be transferred oy B to C in payment of a prior debt. C becomes possessed of the note, after which B discharges A. This evidence will not support an action by C against A and B for a fraud.
    In an action of the case for deceit, the plaintiffs declare that Pliny Bliss and Charles Wiley, contriving and intending to cheat and defraud the plaintiffs, in pursuance of such intention made a pretended promissory note subscribed by said Pliny for the sum of twenty-three dollars, payable to the said Charles, which note the said Charles transferred and assigned to the plaintiffs. And after-wards the said Charles fraudulently gave to the said Pliny, and the said Pliny fraudulently received, a discharge of said note.
    The writ having been served upon Pliny Bliss alone, he ap peared and defended, and at the adjourned session in December last, upon the general issue of not guilty, joined between these parties, viz., the plaintiffs and Pliny Bliss, the plaintiffs gave in evidence a note, dated August 22, 1803, by which P. Bliss, for value received, promised C. Wiley to pay him 23 dollars on demand Amos Daniels, a subscribing witness to the note, testified that P. Bliss said, at the time the note was given, it was to answer a debt of one J. Bliss to the plaintiffs, C. Wiley being indebted to the said J. B.
    
    [ * 112 ] *The plaintiffs then moved to proceed in the action upon the evidence of a blank endorsement of this note, although not negotiable, without any other proof of a consideration paid by the plaintiffs to C.. Wiley for the transfer of the said note. Seioall, J., who sat in the trial, being of opinion that the evidence would be insufficient to maintain this action, unless there should be further proof of a consideration for the said transfer, directed a nonsuit, subject to the opinion of the Court upon the sufficiency of the evidence, given and offered in the trial, to maintain this action. 
    
    And now, at this term, Bliss moves the Court to set aside the non suit, that the cause might be open to a molion for a new trial. He contended that the possession of the note by the plaintiffs, with the blank endorsement, was presumptive evidence of a valuable consid3ration having been paid by them for it. It was in the election of the endorsee to consider the endorsement as a transfer of the property with warranty, or as a mere authority only, and the case ought to have been left to the jury on the evidence produced, and offered to be produced.
    Afterwards Bliss, for the plaintiffs,
    moved for a new trial to be granted, on the ground that they had been surprised at the former trial, and now have other evidence in support of the points which the Court have deemed essential.
    
      
      
         Vide Josselyn vs Ames, 3 Mass. Rep. 274. — White vs. Howland, 9 Mass. Rep 314, and note to 3d ed. —Moses vs. Bird, 11 Mass. Rep. 436, a, note to 3d ed. — Sumner vs. Gay, 4 Pick. 311.— Tenny vs Prince, 4 Pick. 385.
    
   The Court.

This was an action for a fraud, and the evidence was clearly insufficient to support the charge. Here was no evi dence of any conspiracy between Bliss and Wiley; nor any prooi of the plaintiffs’ ever having released their demand on J. Bliss, (and no reason shown for not producing such proof,) or of their having in any other way given a valuable consideration for the note; and without such evidence, what damage do they show themselves to have sustained ? There is nothing left in the case for the jury to deliberate upon.

The Chief Justice suggested that, there might perhaps be a foundation for a criminal prosecution for a conspiracy; but an act done in pursuance of an unlawful intent, and without occasioning actual damage, is no ground for a civil action.

Nonsuit not set aside.

* By the Court.

The ground of surprise, on which [*113 ] this motion is made, should be cautiously admitted. It is not urged that the plaintiff was surprised by the defendant’s evidence, but because the judge required other evidence than what the plaintiff thought sufficient. However, if we were satisfied that the merits of the cause were with the plaintiff, and that from misapprehension he was without remedy, we might be induced further to consider the motion. But a judgment on a nonsuit before ver diet is no bar to another action for the same cause: the plaintiff therefore has a remedy, if he chooses to pursue it. 
      
      
         Bridge & Al. vs. Sumner, 1 Pick. 371. — Hull vs. Blake, 13 Mass Rep. 153
     