
    Young and Otis against Covell.
    To maintain an deceit’ on a pai ^ gg^to^the sensibility of*® ‘j*ird person, the eesesoaaí must prove actual fraud in the or an intention in the defendant to de- * fv him by false representations. Deceit is the gist of the action; and though the advice ;,ive5i be rash and indiscreet, yet if there is no ground to infeT an intent to deceive, it will support the action.
    THIS was an action on the case. The declaration contained six counts. The first count stated that the plaintiffs were, on the 17th of April, 1806, joint owners of the one half of the sloop Alert. Young lived in Troy, and Otis in New-York. One Davis, of Rhode7 7 Island, applied to Younsr, at Troy, to purchase the half * . r of ine sloop, belonging to the plaintiffs, and offered pay 800 dollars, on the sale and delivery of the sloop, and 700 dollars, on a credit; and Young being ignorant of the circumstances and credit of Davis, or whether he might be safely trusted, at the instance of Davis, applied to the defendant, being a merchant in Troy, for information as to the credit, character, and circumstances of Davis, and requested the defendant to inform him truly as to the credit, fkc. of Davis; and the defendant, fraudulently intending to deceive the plaintiffs, and to induce them to sell and deliver the moiety of the said sloop to the said Davis, did, on the said 17th of April, 1806, at, &c. falsely, knowingly, fraudulently, and deceitfully, represent to the said Young, that the plaintiffs might trust the said Davis with perfect safety; that the defendant had no doubt of the credit of' Davis, and if Davis wanted 5,000 dollars, the defendant would let him have that sum; that the plaintiffs confiding -in the representation of the defendant, sold and delivered to ¿Davis* the one moiety of the sloop for 800 dollars in cash, and 700 dollars, one half thereof to be paid in 90 days, and the other half in six months. The plaintiff averred, that the defendant, at the time he made the representation to Young, knew that Davis could not be safely trusted, See. and that Davis has not paid the 700 dollars, and was, and is, wholly unable to pay the said sum, or any part thereof, to the plaintiff. The other counts were to the same effect. The defendant pleaded not guilty.
    At the trial, before Mr. Justice Van Ness, at the Rens~ selaer circuit, in June, 1810, the plaintiffs proved that they were the owners of the one half of the sloop Alert, and the conversation between Young and Davis as to the purchase and sale, at which the defendant was present, and very highly recommended Davis, saying, that if Davis wanted 5,000 dollars, he, the defendant, woulu let him have it in a minute. But the witness did not know whether the defendant had been sent for, or was present by accident. The sale was concluded on the tóuiüs q'-asedo The defendant said he knew the father and fathar-mdaw of Davis, and all their connections, and that they nere all abundantly able. A few days after the sale, with!.;. -one week, and while the sloop still lay at 'the dock in T-’oi/, the defendant told the plaintiffs that Davis was a raceO, and not worth a cent, and that if the plaintiffs wished to .-.ccnre themselves, they must do it then; and'the sloop continued at Troy, two or three day:; after this information, lit appeared also that the plaintiffs refused to trust until he procured some person. to vouch for his responsibility. There was no evidence that the defendant knew Davis, or had ever seen him before he came to Troy, in a vessel from RhodeIsland. The defendant was a man of good credit, a next-door neighbour of the plaintiffs, and on friendly terms with them. The father and father-in-law of Davis were persons in good circumstances; but Davis himself was a bankrupt.
    A motion was made for a nonsuit, and the judge ruled, that the evidence was insufficient to sustain the abtion, and nonsuited the plaintiffs; on which a bill of exceptions was tendered, which was sealed by the judge, and returned to this court, pursuant to the act of the 30th of March, 1809, (32 sess. c. 186. s. 5.)
    A motion was made to set aside the nonsuit, which was argued by
    
      Foot, for the plaintiffs; and
    
      Bliss, for the defendant.
   Per Curiam.

It is well settled that this action cannot be sustained without proving actual fraud in the defendant, or an intention to deceive the plaintiff, by false representations. The simple fact of misrepresentation, unconnected with a fraudulent design, is not sufficient. The evidence produced.by the plaintiffs at the trial did not ma-le out the fraud, or show enough to justify the jury in drawing that conclusion. The defendant made no suppression of facts within his knowledge. He stated correctly the circumstances of the connections of Davis in Rhode-Island. He lived on friendly terms with the plaintiffs; he gave them prompt and seasonable notice of his subsequent opinion of the insolvency of Davis; and it did not appear that he bad any connection with Davis, or that he came and voluntarily recommended, him to the plaintiffs. The advice was rash and indiscreet ; but there is no ground from which to infer that it Was deceitful. Deceit is the gist of the action. If the cause had gone to the jury, the testimony would not have warranted a verdict for the plaintiffs, and the motion to, set aside the nonsuit ought therefore to be denied.

Motion denied. 
      
      
         See Ward v. Center, 3 Johns. Rep. 271. Upton v. Vail, (6 Johns. Reps. 131.) 3 Term Rep. 51. 2 East, 92. 3 Bos. & Pull. 367.
     