*406 By the Court.

delivering the opinion.

[1.] This case comes up rather singularly. Various re-, quests to charge were made and refused, and sundry charges wore given. To all of which the defendant excepted. A verdict having been rendered for the plaintiff, the defendant moved for a new trial on all the refusals to charge, as well as on account of all the charges as given. The Court granted a new trial on two of the grounds, over-ruling all the rest; and still, the defendant excepts, and prosecutes this writ of error. And the agreement is, that this Court shall give Judgment upon the whole case, which is to control its final disposition.

It would be a useless and vain thing to undertake to go over, seriatim, the various specifications set forth in the record. We state the general proposition to be this : that in an action at law for deceit, in falsely representing a third person fit to be trusted, the scienter is material, and must be alleged and proved. The word fraudulently has been hold to be, a sufficient substitute for the other allegation. (1. Chitty's Pl. 388, and note. Willes' R. 584.)

This is the tost, then, by which the instructions submitted by the Court to the Jury, and those which were withhold, are to be tried. Fraud is the gist of the proceeding. The representation must not only be false, but it - must originate in a fraudulent motive, either to injure the party who is thereby circumvented, or to benefit the one who makes the representation. And whenever this is done, and the deception is practiced successfully, whereby damages result, a right of action accrues.

We affirm the judgment of the Court below in granting the new trial, leaving it for the parties to determine, for themselves, whether they will litigate further upon the special facts of the case.