majority"> Avery, J.:

It was essential to the successful prosecution of the indictment to show that the prosecuting witness Ritter was induced by a reasonable reliance upon false representations made by the defendant to pay the latter money to be applied to the gradual extinction of his note theretofore executed. The question that confronts us at the threshold of our investigation is whether the testimony of Ritter tended to prove that any false statement was made by Moore in reference to the ownership of the note which was calculated to deceive or did deceive him, and influence him to pay the money to the defendant. As well in civil actions, brought to recover of another for losses incurred by false representations, as in criminal prosecutions founded upon the same species of fraud, the burden is on the actor or prosecutor to show, not only the false representation, but that a reasonable reliance upon its truth induced the plaintiff or prosecutor to part with his money or property, the only difference being as to the quantum of proof. State v. Phifer, 65 N. C., 321; Walsh v. Hall, 66 N. C., 233. Hence it is that both indictments (relied upon as separate counts of one indictment) charged that the fraud was accomplished and the money paid over to the defendant because of his fraudulent representation that he owned the note, to-the discharge of which the prosecutor proposed to have the payments applied. By collating the facts bearing upon the main questions that were elicited both by the direct and *673 cross-examination of the prosecuting witness, we learn that after purchasing supplies from the defendant for the two previous years, and delivering to him in 1886, on opening an account at his store, a note which he thought was a bank note, Ritter, on the first day of January, 1888, executed the first of a series of notes for $500 which was payable to the defendant. Before the expiration of ninety days from January 1, 1888, the prosecutor states that in consequence of notice from the bank that his note, endorsed by defendant, was due, he came to Fayetteville, saw the defendant Moore about it, and signed a printed Peoples Bank note, in blank, in order to renew that in bank, which he had notice would fall due. Again, in July, 1888, the prosecutor admits that he signed a third note for $500 in order to enable Moore to renew the bank note. The note last mentioned was in evidence, and proved to have been a promise to pay to E. F. Moore, or order, negotiable and payable at The Peoples National Bank at Fayetteville. No payment seems to have been made on any of this series of notes till near Christmas, 1888, when the prosecutor sold a lot of rosin and turpentine, the proceeds of which passed into Moore’s hands and were sufficient to pay all of the amount due-on the note except the sum of $24.75; but the amount so received was not, in fact, applied by Moore in discharge of said note — no credit having ever been entered upon it. On the same day that the last and largest payment was made, the prosecuting witness, for the first time, asked to see the note. It does not appear that he asked for it before paying the money, and that anything that was said by Moore in reference to his ability to get the note influenced the prosecutor, to pay the money. The more natural inference from his testimony is that he asked Moore to get it for him, and take a new note for the balance, after paying all but $24.75 of the sum due. It is possible that the defendant would have gotten the note and settled on the proposed basis had Ritter *674 remained long enough at the store; but even if Moore told a falsehood or deceived him after all the money had been paid, the misleading inference that he naturally drew from the defendant’s language or conduct, after such payments were made, were not, in contemplation of law, the means by which he was deceived or defrauded. • As the prosecutor, neither on his own showing nor by other testimony, proved any false representation made by the defendant, or any misleading conduct before the money was paid, which could have induced him to pay when he would not have done so but for such language or conduct, we think that the Judge should have given the instruction embodied in the three first prayers submitted by the defendant, and which would have amounted practically to telling the jury to return a verdict of not guilty. The defendant knew, at every stage of the transaction, that his note was in bank, and had every reason to believe it was controlled by the bank, except in so far as Moore’s personal influence might induce its officers to entrust it to him. According to his own testimony it is manifest that he trusted Moore, without question, to see to the application of the money paid him in liquidation of the note, which he knew was in the bank and subject to the control of its officers. If Ritter was so ignorant of the law and custom among brokers as not to understand what was implied by the repeated invitations to renew ninety-day notes, Moore cannot be held a criminal for failure to enlighten him and fully explain the situation. Ritter testifies that Moore never, at any time, told him that the note was not in bank, but he 'did tell him that the second note was a renewal of the first mote. The third note, the prosecutor must have understood, was substituted for the second note, which he knew was a bank note, and though he signed it at Moore’s store, as he had signed the other notes, he says that Moore never, at any time, told him that his note was not in bank.. If, then, there is no testimony tending to show a purpose' on Moore’s part *675 to mislead, or that he did deceive Ritter, till after the payments were made, the evidence was totally insufficient to go to the jury in support of the charge that Moore had obtained the prosecutor’s money by false representations as to the ownership of the note.

We have not deemed it necessary to discuss or decide the interesting question whether any misrepresentation made by Moore was calculated to deceive, under the rule laid down by this Court, as we have not noticed numerous other points raised by the exceptions.

In refusing the instructions asked, there was error for which a new trial must be awarded.

New Trial.

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