The declaration substantially alleges that the defendant was indebted to the plaintiff for money had and received to and for the use of the plaintiff, and for money *241lent by the plaintiff to the defendant at his request, -which debt the defendant fraudulently contracted by falsely, fraudulently and deceitfully representing to the plaintiff when the debt was contracted that he would pay the money to a third person on account and for the benefit of the plaintiff, by means of which false representation he induced the plaintiff to pay him said money, and that he obtained the same from the plaintiff with intent to cheat and defraud him, and has never paid it to such third person, or to the plaintiff, but has refused so to do, and fraudulently retains it to his own use.

Judgment by default was rendered against the defendant, and upon a hearing in damages the Superior Court adjudged the plaintiff entitled to recover. The defendant by motion in error brings the record before this court, and relies on the claim that the declaration alleges no legal cause of action, and that therefore the awarding of damages upon the judgment by default was erroneous.

The declaration is in some respects inaptly and inartificially drawn; and contains some expressions which indicate that the draftsman intended tobase his action on section 370, of title 1, of the Revised Statutes, and the claims of the defendant are evidently predicated on the assumption that the declaration is for statutory fraud in contracting a debt,, and not adapted to a case for fraud at common law. It is-, quite obvious that it does not set out a debt arising from any express contract between the parties, and if we were to un- - dertake to vindicate the judgment of the Superior Court upon the idea that it does, we should meet with very formidable difficulties. The real gist of the declaration consists in the allegation that the defendant fraudulently induced the plaintiff to intrust him with his money to pay to another person for the use of the plaintiff, which he designed to, and' did, appropriate to his own use. Stripped of the extraneous and unnecessary expressions accompanying the allegation, such is its rational interpretation. The essential elements of confidence by the plaintiff, and falsehood and deceit by the defendant, attended with serious and premeditated.injury-to the plaintiff, are distinctly averred, which combined constitute *242an aggravated case of common law fraud ; and notwithstanding the want of complete accuracy and precision in the language used, we discover no serious "obstacle in the way of sustaining the declaration as for a fraud of that character. We should be strongly inclined to do it even subject to much graver doubts, because the finding by the Superior Court discloses circumstances of the most flagrant and deliberate wrong, which would have justified, and in our opinion required, a judgment for such additional damages as would have made the plaintiff good for the expenses of the litigation which he was obliged to incur to obtain redress. When fraud is so clearly found it should never be allowed to shield itself behind defences which are purely technical, unless the technicality must of necessity prevail. Indeed courts may well be excused for being astute in their efforts to find a way to uphold a judgment so manifestly just, and in respect to which no error can be alleged except what consists in falling short of securing to the plaintiff what might have been his legal and proper demand, and of that the defendant will not be permitted to complain.

There is no error in the record.

In this opinion the other judges concurred.