Van Ness, J.
This is an application for a new trial? on a case made, and the only question now to be determined is, whether the court can deem the verdict so much against the weight of evidence as to justify the setting it aside. Whether this action can be at all sustained, is not the point no\y before us ; whenever that question arises, I shall be prepared to decide upon it.
The case of Pasley v. Freeman, seems to have been taken for law, but it never has, to my knowledge,, received the sanction of this court. That the principles upon which that decision was made, have been carried far’ enough, has been admitted, and that this is an action not to be encouraged, so long as the provisions of the statute of frauds are considered salutary, I am fully persuaded. The basis of the action is fraud. Fraud is a crime. It is never to be presumed, but must be most conclusively proved. I think that I should never have given such a verdict as the jury have found in this cause. There is every reason to believe that the defendant'had a full' and perfect confidence as well in the integrity, as solvency of Brown. This is evident, from every part of his conduct. The defendant’s partner, who had the same opportunity of knowing and judging of Brown’s circumstances as the defendant had, did not at any time entertain the least suspicion of his being insolvent, and a num-her of Brown’s neighbours concur in saying that their confidence in him was unshaken, until he absconded. To render the defendant responsible under such circumstances, on the ground of a fraudulent misrepresentation of Brown’s credit and situation, appears to me, to say the least of it, to be summum jus. But notwithstanding *282this, I am not prepared to say, that there is no evidence Upon which the jury might find the fraud. They were not misdirected (as was the case in Pasley v. Freeman,) on a point of law. It certainly is a circumstance of some weight, that the defendant concealed the fact of his having in his possession the bond and warrant of attorney to confess judgment. Had he communicated this fact, I should have no hesitation in granting a new trial. Fraud is imputable, in some cases, as well where ■ a man suppresses the truth, as where he represents what is false.. Perhaps, if the existence of the bond and warrant of attorney had been disclosed, the plaintiff would not have given Brown credit for the goods. This part of the evidence, doubtless, had great influence with the jury ; and yet, I think it perfectly reconcjleable with good faith and integrity, on the part of the defendant. Upon the whole,, though with reluctance, I am pf opinion, that it is not expedient to interfere with the verdict. The question of fraud has been fairly submitted to the jury, and they have-found against the defendant. They had a right to do so ; though I may wish that they had done otherwise.
Spencer, J,
This case has been argued by the defendant’s counsel, as though this was a motion in arrest of judgment, and the several cases decided in the English courts have been cited and commented upon in that view; but we are only called on to decide whether the jury had sufficient evidence before them to justify their verdict on the issue joined between the parties.
Humphrey certainly proved the plaintiff’s case ; and it was a question in some measure of credit between him and Case, Humphrey swearing that Case was not present,- and Case testifying that he was, when the defendant made his representations to Brown. To which of these witnésses credit was due, it is not for the court to say ; the jury-have seen fit to give credit to the testimony of Humphrey, and I see no reason to think differently. Had the fact-been less doubtful on the point of falsely representing Spew, the witnesses to the defendant’s general good, and? *283indeed, exemplary character, would have turned the scale, As it is, I cannot say, that I am dissatisfied with the verdict.
I am, therefore, of opinion, that the defendant take nothing by his motion.
Kent, Ch. J. concurred.
Thompson, J. and Yates, J. not having heard the argument in the cause, gave no opinion.
Rule refused.