Upton v. Vail
6 Johns. 181
N.Y. Sup. Ct.
1810
Check Treatment
Kent, Ch. J.

dеlivered the opinion of the court. Deceit, in the recommendation of Brown, was the gist of *182this action; it was a conclusion which the justice ' - • was to draw from the tacts ; and I think the facts did warrant that conclusion. There is no cause to disturb the judgment below, on the ground that it is not supported by proof. The judgment of the justice was here a substitute for thе verdict of a jury, and the facts would well have justified a jury, to have drawn the inference of a premeditated fraud. But one of the points stated on the part оf the plaintiff is, that this action will not lie at all, without the showing some note, or memorandum in writing, to charge the party; and this objection was made at the trial below.

We have never expressly decided in this Court, that the action would lie. In Ward v. Center, (3 Johns. Rep. 271.) the question wаs incidentally raised, but no opinion expressed by the court, because ‍‌​​​‌​‌​‌‌‌‌‌​​​​​‌‌​‌‌​‌‌‌​​​‌‌​‌‌‌‌‌‌‌​‌​‌‌‌‌‌‍the mоtion, in that case, was for a new trial, and not in arrest of judgment. The case of Paisley v. Frеeman, decided in the K. B. so late as the year 1789, (3 Term Rep. 51.) is the first direct authority, in the English courts, in support of the aсtion. I have carefully examined the reasoning of the judges in that case, arid in thе subsequent cases, which go to question, or support the soundness of that decision; and I profess my approbation of the doctrine on which it was decided. The case went not upon any ■new ground, but upon the application of a principle of natural justice, long recognised in the law, that fraud or deceit accompanied with damage is a good cause of action. This is as just and permanent a principle as any in our whole jurisprudence. The only plausiblе objection to it is, that in its application to this case, it comes within the mischiеfs which gave rise to the statute of frauds, and that, therefore, the representation ought to be in writing. But this, I apprehend, is an objection arising from policy and exрediency; for it is certain, that the statute of frauds, as it now stands, has nothing to do with the сase. The *183case of Paisley v. Freeman has received a decided sane-J s . tion, by a succession of learned judges, m the several courts of Westminster Hall; and I observe that the action is sustained ‍‌​​​‌​‌​‌‌‌‌‌​​​​​‌‌​‌‌​‌‌‌​​​‌‌​‌‌‌‌‌‌‌​‌​‌‌‌‌‌‍without contradiction in the courts in Connecticut. (Eyre v. Dunsford, 1 East, 318. Haycraft v. Creasy, 2 East, 92. Tapp v. Lee, 3 Bos. Pull. 367. Harnar v. Alexander, 5 Bos. & Pull. 241. 1 Campbell's N. P. 4. 277. Wise v. Wilcox, 1 Day’s Cases in Error, 22.) In one of the cases, Sir fames Mans« field says, “ I am fаr from wishing to sustain an action, simply upon misrepresentation j but there never was а time in the English law, where an action might not have been maintained against the defеndant for this gross fraud.” Lord Eldon has, indeed, expressed his dissatisfaction with the case of Paisley v. Freeman; and he thought that the statute of frauds and perjuries ought to be applied to the case. (Evans v. Bicknell, 6 Vez. jun. 186.) He is, undoubtedly, a very respectable authority; but as far as mere authority goes, the preponderance is vastly on the other side. ‍‌​​​‌​‌​‌‌‌‌‌​​​​​‌‌​‌‌​‌‌‌​​​‌‌​‌‌‌‌‌‌‌​‌​‌‌‌‌‌‍The courts of law have been uniformly against him ; and even his successor, Lord Erskine, has declared himself, in the strongest terms, in favour of thе suit. “ As to the danger from a single witness,” he observes, “ is not one sufficient for convictiоn of a capital crime ? That objection goes to the very root of the law, which is uniform in principle and practice, with the single exception of thе case of perjury, as there is oath against oath. The case of Paisley v. Freеman, therefore, stands upon the clearest principles of jurisprudencе, and has no connection with the statute of frauds, which applies, where onе man undertakes for the debt of another.” (13 Vez. 133.) But independent of the English cases, I place my opinion uрon the broad doctrine that fraud and damage coupled together, will sustain аn action. This is a principle of universal law, and I consider it as deserving of pаrticular notice, and, in a ques*184tion depending upon general principle, as adding no inconsiderable weight ‍‌​​​‌​‌​‌‌‌‌‌​​​​​‌‌​‌‌​‌‌‌​​​‌‌​‌‌‌‌‌‌‌​‌​‌‌‌‌‌‍to the accumulation of authority, that the samе doctrine is laid down by Pothier. (Traité du contrat de mandat, art. 21.) It is drawn by him from, the text of the civil law, where it is supported by the sanction of Ulpian. (Dig. 50. 17. 47.) Consilii non frawdulenti nulla obligatio est, cmterum si dolus et calliditas intercessit, de dolo actio competit. “ If,” says Pothier, “ you had only recommended Peter to his creditor, as honest, and ablе to pay, this was but advice, and not any obligation ; and if Peter was, at the time, insolvent, you аre not bound to indemnify the creditor for the sum which he loaned to Peter, by means of your advice, and which he has lost. Nemo ex consilio obligatur. The rule is. the samе, if the advice was given rashly and indiscreetly, ‍‌​​​‌​‌​‌‌‌‌‌​​​​​‌‌​‌‌​‌‌‌​​​‌‌​‌‌‌‌‌‌‌​‌​‌‌‌‌‌‍without being duly informed of the circumstancеs of Peter, provided it was sincerely given, liberum est cuique apud'se explorare an expediat sibi consilium. But if the rеcommendation was made in bad faith, and with knowledge that Peter-was insolvent, in this case you are bound to indemnify the creditor.”

The court are, accordingly, of opinion, that the judgment below must be affirmed,

Judgment affirmed.