¶1—In this case it was incumbent on the plff. to prove that the deft, made a false representation of the solvency of Waggoman, knowing it to be false, and with the intent to deceive and defraud the plff. The knowledge must be proved. It has been argued that the fact of the recommendation proves a knowledge of the circumstances. We can’t agree to this conclusion. It is at best but a mere inference and too unsubstantial as a foundation for the fraud that is to be built upon it. The scienter ought to be proved aliunde. The evidence in the cause is that Waples lived in this county and Waggoman in Washington city. Some of the depositions of witnesses residing in Washington hesitate about Waggoman’s insolvency in 1830, though the proof does establish this; yet there is not a tittle of evidence produced to show that Waples knew Waggoman’s circumstances either real or apparent. It being incumbent on the plff. to prove this knowledge he must be nonsuited.
¶2Judgment of nonsuit.