When we read the copies of this case at our chambers, we felt desirous, if possible, to support this declaration. We had recourse to the authorities read, and to others which we considered might bear upon the subject, and endeavoured to excite our recollection to cases already decided in this State. But as Judges, we are not to permit even the moral sense to induce us to exalt ourselves into legislator's. We sit here to declare the existing and not to create new laws.
The conduct of the defendant, as exhibited in the declaration, is highly reprehensible; and if prece*404dent alone were wanting, we should not hesitate in deciding that the declaration is sufficient.
Upon the first exception in demurrer, we observe, that we find no case in the books which reaches the present declaration.
The law considers, that contracting parties have a discretion to use, and they must in general exercise it at their peril. If they have not arrived at years of discretion, or if of adult age they are incapacitated by reason of idiocy, insanity, total imbecility, or .other dispensation of Divine Providence, the law will avoid their contract, and has provided guardians to contract for them. If a contract is made under duress, or under such fraudulent imposition as common discretion cannot guard against, it is also voidable.
But it would be an unprecedented and dangerous doctrine, would tend to-increase litigation, and render the citizens careless in the exercise of .their rational powers, to sustain an action upon the case for a deceit upon the traverse of every assertion which a purchaser might make to obtain credit in the maturing of a contract.
When a man seeks to obtain credit for a chattel, and boasts his ability to pay, here is a proper occasion for the exercise of the discretion and vigilance-of the vendor. If the defendant in the present case had falsely and roundly asserted that he was worth ten thousand dollars, and relying upon his assertion, the plaintiff had credited him for his horse, we believe it would not be contended, that an action of this nature would have lain. His falsely specifying the particulars of his pretended estate does not differ the case in a moral view, neither does it give a right of *405action, which the plaintiff would not have had in the former case. In both cases the plaintiff should have
In an action sf in a con' tract, some special damase ought to be allesed the declaration. if a credit 1SSubse^ qu^n.t t0 an<* of the original contract,it may at any time be retracted; but if it make any part of the original contract, it is so material a part of it, that if an action be brought within the time limited for the credit, it cannot legally be supported, unless it was not1 a bma'fide purchase by the vendee.been equally and sufficiently discreet to make proper inquiries of others before he credited a stranger ; for both the general and particular affirmations of the purchaser stand on the same ground, and resolve into the inquiry, whether he who relies on any. naked assertions of a stranger made in his own fa-' vour, unaccompanied by false tokens as’an'inducement to give him credit, has suffered such an imposition as common prudence could not guard against.
It may be observed, that the contract set forth in the declaration was in Orwell, and the farm which the defendant affirmed that he owned, and the person who owed him, were said by him to be in Cornwall, a town in the vicinity, and in this case it reduces the point in question to this; whether the law will give redress for every imposition, however gross and however readily and easily avoided; and the old and rational doctrine of due discretion, diligence and vb gilance in contracting parties shall be done away ?
The Court consider further, that some special damage should have been allegated in the declaration: • ° ° ’ but wc will not enlarge upon this point; for as this , ° 1 . 1 does not go to the right of action, it might have been 1 cured by jeofails.
The second exception in demurrer we consider as fatal. The doctrine laid down by Eyre, Chief Justice, in the case of De Symons v. Minchwich, is recognised by this Court; that if the credit given was voluntary, subsequent to, and not making any part *406of thé original contract, it certainly might at any time be retracted. But if it made part of the contract, it is so material a part of it, that if the action be brought within the time limited for credit, it cannot legally be supported, unless it was not a bona fide purchase at the time by the vendee.
Seth Storr and Samuel Miller, for plaintiff. Daniel Chipman and Loyal Case, for defendant.It is said, whether bona fide purchase or not, is not the subject of demurrer, but should be left to the Jury. This depends on the form of the declaration. If the declaration does not, as in the present case, negate the fairness of the purchase, no issue can be carved out of it, embracing this question.
Judgment, that declaration is insufficient.