
    Charleston, January Term, 1812.
    Catharine Munro vs. James Gardner.
    Drayton, for Motion.
    
    King, Northrup, & Sim-mon, Contra.
    
    Edwin Gardner 0n simp' v°¿s^n ^London, payable to one Bell. The bill was the property of the plaintiff, and was dishon-oured when presented for acceptance. Evidence was given that defendant wrote to Edwin Gardner, that he had paid the bill; which letter E G. showed to the plaintiff, to convince her that the bill was taken up. In that belief she rested satisfied, until the protest of the bill for non-payment; soon after which E. G. failed.
    An action of deceit was brought against defendant, to make him answerable to the amount of the bill, for falsely representing that he had paid the bill, and-thereby defrauding the plaintiff, by lulling her into security, and preventing her from proceeding against E. G. Plaintiff had a verdict for the amount of the bill; but the same was set aside, and a new trial granted.
    In an action of deceit, there must be such a connection between the party doing the act, and the party that suffers by it, as to show that the injury is within the scope of the fraud intended : The ground of the action is fraud,
    Nott, J. IN this case, it appears that Edwin Gardner, brother of the defendant, drew a Bill of Exchange on Simpson and Davidson, merchants in London, payable to one Bell, in Scotland. But although it was payable to Bell, it in fact belonged to Mrs. Munro in Charleston, who sent it to him to be laid out to her use. Upon being presented to Simpson and Davidson, it was not accepted, and was ^^17 protested. When Mrs. Munro was informed of the non-acceptance, she applied by her friends to Mr. E. Gardner, the drawer, for payment. He informed them that, although it was protested, it was taken up by his brother then in England ; and as a proof of that fact, shewed them a paper, the caption of which was “ Bills settled (or paid) and unsettled.” This list was in the handwriting of James Gardner, and contained the bill in question, and opposite to it in the margin was written, “ paid.” Mrs. Munro, believing this statement to be true, rested satisfied with it, until the bill was protested for non-payment, and shortly after Edwin Gardner failed. This action was brought against James Gardner, on the ground of fraud and deceit in writing to his brother that the bill was paid by him, when, in fact, it was not paid; by reason of which the plaintiff being lulled into security until Edwin Gardner failed, has lost her money. The jury have found a verdict for the plaintiff, and this is a motion for a new trial.
    Three questions present themselves for consideration in this case: First, whether «Tames Gardner was guilty of the fact of representing to his brother, that he had paid this bill? Secondly, if he is, whether he did it with a fraudulent intention? And, Thirdly, if he did, whether it was with a view to defraud Mrs. Munro in particular; and, if not, whether she stands' in such relation to him in this transaction as will entitle her to maintain an action ?
    
      The first being a mere question of fact, proper for the consideration of the jury, I might not have been in favour of granting a new trial, if the case had rested alone on that ground. Nevertheless, I , T . . eannot help entertaining some doubts on that point. I have no doubt but that the witnesses saw the list of which they have given evidence, and I am disposed to believe, it was in the handwriting of James Gardner. But it is to be observed, that all the deception that has been practised in this case, might have been effected by writing the single word “ paid” in the margin. Now it is probable, that the attention of the gentleman, to whom this list was shown, was drawn principally to the body of the writing and not to this important monosyllable; for it does not appear that they suspected any fraud at that time; and I can more easily believe that Edwin Gardner, who was a man of bad character, would commit a forgery, than that James Gardner, who is admitted to be a man of good character, would be guilty of such a fraud. Bolstering up a tottering credit, might have been a strong inducement with the first, while the other could have had no motive for doing such an act; and what fortifies this suspicion is, that this list could never be found after James Gardner arrived in this state. Perhaps if it had been produced on the trial, and these witnesses had examined it when their suspicions were awaked, they would have thought otherwise. But even if they had not, the similarity of handwriting in a single syllable (particularly between persons in whose writing, there is said to be a resemblance) is very slight evidence, on which to fix such a stigma on the character of an honest man.
    secon¿ point, if the jury had found a genera] verdict without giving any reasons, it would have fixed che fraud on the defendant; but taken in connection with their reasons, it seems to amount to an exculpation. This action is founded in fraud, and if there was no intention to practise fraud or deceit on any one, the action fails. It was in proof that James Gardner offered to accept the bill, allowing time to run over. Now the jury say, they 44 think Mr. James Gardner may have signed the 44 list proved when he offered to accept the bill, al-44 lowing the time to run over.” If they believed he might have done it under those circumstances, they must have believed he might have done it by mistake, and not with a fraudulent intention ; and without such intention, this action cannot be maintained. Paisley v. Freeman, 3d D. & E. 51. Ayer v.-, 1st East, 318. 2d East, 105.
    But thirdly, supposing the whole of that list to be in the handwriting of James Gardner, and to have been done with a view to deceive some one, it does not appear to have been intended to deceive Mrs. Munro. She was no party to the bill; and there was no evidence that James Gardner ever heard of such a person. Indeed, it is not pretended, that he had any knowledge of the parties, except what appeared on the face of the papers. If he intended, to deceive any one, it must have been his brother, and, although we cannot perceive any motive for doing so, yet we can sooner believe it, than we can believe that he intended to deceive a person of whom he never heard. Indeed, I can conceive, that he might have had an interest in making his brother believe that he had advanced money for him in England, but I can see no motive he could have had in deceiving Mrs. Munro. The question then is, whether there is such a privity or relation between Mr. James Gardner and Mrs. Munro, in this transaction, as entitles her to maintain this action ? I think there is not. In an action for deceit, there must be some apparent connection between the party doing the act, and the one suffering the injury; something like cause and effect; one must be the necessary or probable consequence of the other. This principle may be illustrated by a very familiar example : Suppose A. by actual misrepresentation and falsehood, induces B. to purchase from him as sound and valuable, a horse which is sick and worth nothing; if B. should sell the same horse to C., he (C.) could not maintain an action against, A., although he had been made acquainted with the ' representation A. had made, and had purchased in the confidence he had in him. I will not say, that a person intending to commit a fraud, must have some particular person in view; and that no other person, except the one intended to be injured, can, in any case, maintain an action for such deception. Perhaps, such a case may exist, but then the person so injured must come within the scope and tendency of the contemplated fraud. For instance, if a person should give a certificate, directed to all persons to whom it might be shewn, stating the bearer to be a person of good character and property, that he might be safely trusted for 810,000, when he knew that he was not worth a cent, with a view of deceiving some particular person, and some one not intended, should be deceived; perhaps, the author of the deception would be liable from the nature and tendency of the instrument. But if such a certificate should be directed to a particular individual by name, for the purpose of deceiving him, and that certificate sliould be shewn to another person, who should trust the bearer, that other person certainly could not maintain an action against the person giving the certificate.
    But to come home to the present case: Suppose Edwin Gardner had shewn this list to fifty persons in Charleston, to make them believe James Gardner had taken up all his bills in London, and had thereby swindled them all out of the same sum of which he has defrauded Mrs. Munro, could they all recover from James Gardner, the amount of their respective claims ? I presume not; and yet they would have stood in the same situation with her. In all the cases, that have been relied on, in which it is laid down, that where a fraud is intended and an injury has happened, an action will lie, the action was brought by the person against whom the fraud was intended; and, although the rule is laid down in those broad terms, it must be taken as spoken in relation to the cases to which it was applied, and decides nothing as it regards a case circumstanced like this. This list was a private paper, sent by one man of business to another, relating to their own private affairs, which from its tenor could not have been expected to come to the view of, or involve the interest of any third person. And, although a use has been made of it to the injuring of a third person, yet that sin ought not to be visited on the head of one, who could not have comtemplated such an event. If there had been any collusion between these two brothers to deceive this unfortunate woman, the action might be maintained; but there is no evidence of that sort; and although we can pity, we cannot relieve her misfortune. I am of opinion, therefore, that the motion ought to prevail.
   Brevard, J.

This action being in nature of a writ of deceit, it is substantially founded on fraud; and, to entitle the plaintiff to recover, two things must concur; namely, fraud and damage. The suggestion of falsehood, or the suppression of truth, though an injury may thence result, will not afford sufficient ground for an action, unless such immoral conduct has proceeded from a fraudulent motive, and was intended and calculated to produce an injury or damage to the party complaining thereof in particular, or to all others in general. This appears to me to be the true doctrine on on this subject, though there are, I believe, respectable opinions which seem to favour a more extensive definition, and would give a wider range to the action. 3 D. & E. 51. 1st East. Eyre v. Dumsford, 2nd East, 92. 3rd Bosanqt. & Pull. 367. 6th Johns. 181. 3rd Johnson, 271.

A naked, wilful lie, or the assertion of a falsehood knowingly, is certainly evidence of fraud; but yet it is not conclusive evidence. An intention to deceive is material, but if the falsehood asserted or imposed, is in its nature a character calculated directly to defraud and injure some one particular person, or all persons generally, an intention to deceive and injure any one who may thereby be deceived and defrauded, may be implied. To authorise an application of this doctrine to the, present case, so as to support the verdict which has been given, it ought to appear clearly beyond a reasonable doubt, that the words paid and settled,” (or whatever the words were which the witnesses proved were inscribed ón a list of bills which was exhibited to them by Edwin Gardner, as having been transmitted to him by the defendant,) were in fact written by the defendant or by his procurement. It is possible, that the writing on that paper, was all his handwriting, except the particular words which, related to the bill in question, and that those words - were not written by him. The evidence is not very satisfactory to my mind that any part of the writing was his; but still less so, as it relates to the words which concern this particular bill. All circumstances considered, it appears to me much more probable that the writing was not his, notwithstanding the testimony of the witnesses, which went to prove the contrary. The witnesses, no doubt, believe that it was his writing, and, it may be, that they were not mistaken, though they did not examine the writing with any view to detect a forgery; but as a very little alteration or addition was necessary to ef-feet the deception complained of, and as none of the witnesses have said that they or any of them directed their attention to that part of the writing which has had that elfect, with any view to ascertain whether it in particular was in the handwriting of the defendant, I am induced from other circumstances to believe that this part of the writing was not his. At all events, I am not satisfied that on such evidence, the jury were authorised to say that it was his; and, without that the verdict cannot be supported. If the writing was the defendant’s, it must have been written by mistake or through inadvertence, without a knowledge or consciousness of its falsehood, or it was written to deceive Edwin Gardner, who might have relied on some promise of the defendant to take up the bill; or, lastly, it was done to effect the very purpose which it is said to have effected, and of which the plaintiff complains. The counsel who argued for the plaintiff, deny that it was written by mistake. They deny that it was written to deceive Edwin Gardner. They chaige the defendant with having written it for the express purpose of deceiving and defrauding the plaintiff. It would be more charitable, and much more probable, in my. opinion, to suppose, that if the defendant is the author of the writing in question, he wrote it either through mistake or to deceive his brother. The latter supposition may be rr J made without imputing to him very great moral turpitude, if we should further suppose that he did not mean to defraud, but only deceive for a time. gut 0f the plaintiff’s counsel would impute to him a deliberate and wilful falsehood, calculated to deceive, and, in collusion with his brother, to defraud the plaintiff forever, of the amount contained in the bill with damages, interest and costs. The counsel, however, were perfectly right to insist on the ground they did, because on neither of the other hypothesis could the action . be maintained. If it was an unintentional mistake, the defendant cannot be responsible; if it was intended only to deceive his brother, he cannot be liable to another person, because it was not calculated to defraud or deceive any other person. It appears to me extremely improbable, that it was done by him to produce the consequence complained of as an injury. The defendant has been represented as a man of general probity, in great credit as a merchant, and labouring under no embarrassments ; at any rate, not entangled in the ruinous transactions and speculations of Edwin Gardner. It is difficult to conceive any benefit or gratification which he could expect to result to himself from this fraudulent act. He was not indebted to Edwin Gardner and Co. He had not bound himself to take up this bill; unless we can believe so without evidence. It cannot well be supposed, he would collude with his brother to deceive and defraud the plaintiff in a case like the present, where so many circumstances were to concur in order to effect the purpose: . A 1 ' which circumstances must have been foreseen^ long before they happened, and when the object was so inconsiderable as it affected his brother, and of no consequence whatever to himself. To descend to act a part so dishonest and base, without some strong motive, no man of common sense ever could be pre-vaile'd on, and especially under the certain prospect of being detected and exposed. The only advantage which his brother could. hope to derive from the fraudulent act, would be the temporary relief from the demand of a single creditor. The deceptive representation could not be expected to operate an extinguishment of the claim. It could only afford time to carry on more securely fraudulent operations to the injury of other persons, till the eyes of all should bé opened at once upon the true character of these manoeuvres.

Is there any reason to believe that either the defendant or Edwin Gardner was desirous of defrauding the plaintiff, rather than any other of the creditors of Edwin Gardner and Co. ? It appears to me that the latter inclined to favour her, but was so immersed in debts and so surrounded by importunate creditors, that he could not do it with convenience. Among so many who were to suffer by his contemplated failure, it was not singular that she also should be left unpaid. It has been considered as a harsh and injurious course, to attempt to exculpate the defendant by presuming against Edwin Gardner that he exhibited a false writing to the plaintiff’s agent; in order to gain time. But is this course more harsh and injurious; than to indulge the supposition on which this action is founded; that both the brothers were guilty of falsehood , „ , and fraud r

It has been said; however, that to warrant the belief, that the writing was forged, (or any part of it,) the evidence ought to be as strong and convincing as would be requisite to convict a party charged on an indictment for forgery. To this argument, I cannot yield my assent. The forgery was not of such a nature as to furnish any ground for an indictment. It was calculated not to defraud the defendant, or even the plaintiff, but merely to excuse a breach of promise or cover an antecedent fraud. It has been said that fraud ought not to be presumed. To this I agree, but the question is not, whether we are to presume fraud, but whether the evidence does not prove fraud; whether it does not authorise the presumption of a dispunishable forgery in order to gain a temporary respite from the clamours and reproaches of an injured and disappointed creditor. Can it be said with propriety, that Edwin Gardner was a man incapable of such conduct ? In asking this question, I have no wish or intention unnecessarily to open the wounds which his reputation may have received. I found nothing on common report, or extra-judicial knowledge. I rely solely on the evidedce reported in this ease. What is the proof it furnished ? That he was a man overwhelmed with debts; that for some time he had supported a false and deceitful credit, and saved himself from sinking under the incumbent weight of multiplied and increasing demands, by catching at every thing which accident or deception brought within his reach : that during these struggles to protract the term of his mercantile existence, he pesprted to various means to elude or satisfy his creditors: that he had deceived the plaintiff by drawing on a commercial house in London, where he had no funds : that he persuaded her to rely on the defendant, his brother, to take up the bill on his account, when he had no right to promise this on the part of the defendant, in whose hands he had no funds: that the plaintiff by her agents were daily teazing and importuning him to satisfy her claim, and might be prying iiito his circumstances, might discover the embarrassments of his situation, and sound the tocsin among his numerous, unsuspecting creditors : that he repeatedly assured her agents, that the bill had been paid by his brother, when he must have known the contrary, unless it can be believed that the defendant deceived him without any apparent motive: that his own wife was’distressing him with earnest and pressing entreaties and remonstrances in behalf of her friend, the plaintiff: that he must have calculated on a speedy and total bankruptcy, and could not hope to deceive the plaintiff any time beyond the date of his general credit: and that no other or greater injury or loss was experienced by the plaintiff in consequence of the forgery, (if such it may be called,) than would in all probability have befallen her, if ^le writing alluded to had never existed or been shewn to her. In addition to all these things, let it be recollected, that afterwards, when the credit of Edwin Gardner was fast on the decline, and he was applied to for this paper, it was not produced, it was unfortunately mislai,d. He promised to search for it and produce it again to the plaintilf, hut she saw it no more. After considering all these circumstances, the impression on my mind is little short of perfect conviction, that the writing (so much of it as related to the bill in question being paid or settled) was a fabrication, not of the defendant, but of Edwin Gardner, and on that ground my opinion is, that the verdict is against evidence, and ought to be set aside.

But waiving this ground of exception, and admitting the writing, shewn to the friends of the plaintiff to satisfy her that the bill was taken up by the defendant, was all of it written by the defendant, and that he was conscious of the falsehood of the part of the writing of which the plaintiff complains, yet it will be difficult to make out the right of the plaintiff to recover in this action. If it was written to deceive Edwin Gardner, I cannot see how it can be made use of as an instrument to aid the plaintiff, because the writing appears no way calculated to do mischief to any one else. Indeed, I cannot see how it could work an injury to Edwin Gardner, or any other person from which damage would result. It might produce disappointment, vexation and resent, ment, but pot a pecuniary loss. I mean to say, that from the evidence which has come to our notice, I cannot see that any damage was at all likely to result from the false representation, if it was one. A

I do not pretend to say, that a case could not happen under similar circumstances, in which the party written to directly, might sustain injury. To support this action, evidence ought to have been given to shew that the defendant, knowing all the facts relating to this bill, and that a writing of this sort would serve Edwin Gardner, as an effectual means to amuse the plaintiff and impose upon her credulity, (in the face of the most convincing proof to the contrary,) so far as to prevail upon her to discontinue the prosecution of any measures to, obtain payment, until it would be too late to do it with effect. Now there was no evidence of this, or next to none. The belief of it must rest almost entirely on conjecture; a conjecture altogether improbable and even absurd. It is improbable that any man of fair character, or even of any character, could be prevailed on by such inducements as those which are attributed to the defendant, to do an act so base and at the same time so little likely to succeed; an act too from which so trifling an advantage could be gained; and to do an injury which might have been as well done without it. It is absurd to suppose that this vile and foolish game could have-been concerted and played, by persons placed at such a distance apart, for a stake of no value, of _ no value absolutely, as it concerned the defendant,- and next to nono, as it concerned the supposed associate- admitting even the purpose of the defendant to defraud the plaintiff, (improbable as it appears to me,) there was no satisfactory evidence, (to my mind at least,) which proved that the plain-' ^ was ¿eceive¿ an(] defrauded by means of the writing in' question, and thereby sustained any damage. The evidence did not go to prove, that she trusted to the representation made in that writing, and not to the personal credit, and repeated verbal assurances of Edwin Gardner. It did not prove, that if the writing had not been produced, she would have had immediate recourse to such means as would have compelled Edwin Gardner to pay the debt: on the contrary it appears to me plain, that she relied on Edwin Gardner’s personal responsibility, and on the credit and solvency of the house of which he was the principal partner; on the friendship of his wife, "and the intercession of her other friends, and not at all, or very little, on this paper. How could she repose upon the security of such a paper? It was not directed to her; it was in the hands of á man who had wronged her; it was contradicted b' the strongest evidence that could be brought in ^er own possession. The paper, it is true, might have aided Edwin Gardner in imposing on her. Still, however, her reliance was not on the paper but on him. Upon his assertions, she believed the paper spoke the truth. It cannot be believed that without his assertions and assurances, she could have believed the statement in the paper, when she had the most convincing evidence in her hands to the contrary. She must have either reiected the statement as false, or attributed it to mistake. That her confidence was m Edwin Gardner and not in the defendant, is further evidenced by her taking from him a second bill drawn on the defendant instead of the former, which was drawn on Simpson & Davidson. It is true, she did not accept of it as an extinguishment of the former demand or debt, but it serves to show her confidence in the man who had so often deceived her.

But suppose the paper had not been shewn to her or her agents, is it certain or even probable, that she would have so pressed Edivin Gardner for payment, as to have obtained it ? It appears to me, that the same postponement would have taken place, and the loss would have been equally sustained in that event. It is extremely probable, that she would have yielded so far to his assurances, as to have produced the same consequences. But if she had not consented to wait, in expectation of the bill’s being paid in England, still there is the strongest reason to support the belief, that he would not have paid her, whatever measures she might have had recourse to. It is certain she could not have compelled him to do so, as his bankruptcy was soon after notorious. It is more than probable, that, the same spirit or necessity, which dictated his former conduct to her, would have emboldened him to persist in his deceitful and injurious conduct towards her, and that he would have refused payment on the same ground on which he had evaded it.

To conclude, my opinion is, decidedly, that taking the whole evidence in consideration, it is abundantly more strong to overturn than to support the verdict, and that the verdict ought to be set aside agajnst evidence, and also as contrary to law. I have taken no notice of the terms in which the verdict is expressed. I have thought this unnecessary, as independently of any evidence which this circumstance may furnish in favour of a new trial, I am clearly of opinion, it ought to be granted. Nevertheless, I cannot forbear saying, that the particular wording of the verdict indicates a consciousness, on the part of the jury, that it required some apology.

Grimke, J.

To bring this action within the law, it is necessary to prove ; 1st, That the conduct of the defendant was deceitful and fraudulent; 2nd, That the deceit was practised by defendant on the plaintiff to induce her to do a certain act j and 3rd, That trusting to this representation, she did an act by which she was injured.

With respect to the first, it does not appear to me, that the conduct of the defendant was either deceitful or fraudulent; there is no part of the evidence which points conclusively to this charge. The basis on which it rests is a paper, said to be in the handwriting of the defendant, in which the bill is mentioned among many others, with the word paid,” or settled,” opposite to it; and this paper has been proved to be in the handwriting of the defendant by one witness, to whom Edwin Gardner, the drawer of the bill, shewed it for a few minutes, and to another who had it in his possession for sev-eral days; but, now that the paper is called for, Edwin Gardner says it cannot be found. Had that paper been in the possession of the defendant, such evidence as is here given, I should hold conclusive against him, unless he could shew, what had become of it. Another circumstance in favour of the defendant is, that his and Edwin Gardner’s handwriting is very much alike. Now, it was the interest of Edwin Gardner to induce a belief in the plaintiff, that the bill was paid 5 it was not the interest of James to impose any such belief on the plaintiff. His (James’) credit was not sinking ; his bills had not been protested : but Edioin was in that situation ; and, therefore, if he could impose on plaintiff’s credulity by exhibiting the paper in question, he might have an opportunity of taking it up before any suit could be instituted against him. Upon this point the jury have determined, that they believed the testimony of the two witnesses to the handwriting of James, when they (the witnesses) might have been mistaken, and when the paper itself was not submitted to them, against what I deem much stronger evidence than the testimony of those two witnesses, viz. the circumstances attending the case, for it further appears in evidence, that Edwin was indebted to defendant, and not he to Edwin.

2nd, It does not appear by any part of the testimony, that the defendant ever practised deceit on. the plaintiff, to induce her to do any act. The bill was drawn by Edwin, payable, not to the plaintiff, but to a Mr. Bell, in Scotland, who was the only person that could be known in the transaction to the defendant. The defendant, it^seems, being brother of Edwin, and being then in England, and finding Edwin’s affairs in a tottering predicament, took them out of the hands of Edwin’s agent, paid some of his bills, and offered to Bell, if he would let the bill run over again, that he would accept and pay it: this being declined, the bill came back protested. There does not then appear any evidence which could induce a belief, that the defendant was prac-tising this deceit on plaintiff, and who, in this transaction, was an utter stranger to him. The sending the paper to Edwin, was for his {Edwin’s) information; that he might see what had been done, and was doing in his buisness. It could not be considered otherwise than as a private confidential communication from one brother to another, and which ought not to be wrested to the injury of the defendant, even if he had written the words opposite the hill, as it was not intended to practise a deceit upon the plaintiff, and of which, there is not a tittle of proof.

The two former grounds being thus invalidated, the third falls of course; for, in, this action, these three points must be proved before the plaintiff can make out her case; and, as I think, she has failed in all of them, I am of opinion a new trial should be granted.  