By the Court.
Daly, F. J.This case is not distinguishable, in principle, from Galoupeau v. Ketchum, 3 E. D. Smith, 175. The referee has found that the note was usurious and void in its inception ; that the defendant Blun, in answer to the plaintiffs’ inquiry, declared it to he a regular business note, and that neither Blun nor bis co-defendants had any knowledge, when this representation was made, whether it was a business note or not, and this finding is sustained by the evidence.
The plaintiffs having, upon this representation, exchanged their check and two notes for a note that was absolutely void, ■.vero, when they afterwards discovered the representation to D; false, entitled to have their cheek and the two notes returned to them, upon tendering back the note they had received in exchange. It is wholly' immaterial whether the defendant K-Ueved it to be a business note or not, or whether they knew the real character of the note ; for if, in the first place, I 'th Blun and the plaintiffs acted, in making the exchange, up-•■u the assumption that the note, which never had any validity at all as an obligation, was a valid business note, the plaintiffs, upon discovering the mutual mistake, had a right to rescind the contract of exchange ; (Martin v. McCormick, 4 Seld. 331; Hitchcock v. Giddings, 4 Price, 135; Bennett v. Hudson, 21 N. Y. Repts. 238; 1 Story Eq. Juris. § 103), or if, the second place, Bum knew the real character of the note, wen he was guilty of a fraud in making the renreseatation '■:i¡un he did, and the plaintiff,.upon that ground, would be enied to rescind the exchange. The case of Haycraft v. " - '■'!/ (2 East. 92), upon which the defendants relyq was an /-■ non to recover damages for " & false, fraudulent and deceit*54fui representation; and all that need be said respecting it is that the decision was put upon the ground that the statement of the defendant, that he knew of his own knowledge that the person inquired about had been left a considerable fortune, -and was in daily expectation of a greater one, when the fact was that he had been duped himself to the extent of two thousand pounds, by the artful show.of appearances and false representafcions of the person referred to—was not sufficient to show an intentional design, on his part, to deceive the plaintiff; that his assumption of knowledge, under the circumstances, was rather his undiscriminating mode of asserting his strong conviction and belief, and not such an act of fraud or deceit as would subject him to an action for damages. It is a very different case from this. The judgment should be affirmed.