author: Gardiner, J. Bronson, J.

text:
    Whitney vs. Allaire.
    Where one conveys or leases to another his right in real estate, an action wilt lie for a fraudulent representation as to the territorial extent of such right.
    And in such a case the proper measure of damages in favor of the lessee, is the sum which in good faith he is obliged to pay to a third person to obtain what the lease would have given him if the representation had been true.
    A demise for a term commencing in futuro, passes a present interest in the term to the lessee.
    And the lessee by taking possession at the commencement of the term, and after having discovered the fraud, waives thereby only his right to rescind the contract, but not his right to recover the damages occasioned by the fraud..
    The defendant, in February, executed to the plaintiff a writing under seal, stating that he had hired of the plaintiff a certain, water lot and his right to a wharf in the city of New-York, for one year from the first of May next, at $1000 rent. He was induced to make the contract through the fraudulent representations of the plaintiff, that the right mentioned in the lease comprehended a parcel of land which in fact belonged to the corporation of the city of New-York. The defendant discovered the fraud before the first of May, and obtained from the corporation a lease for that parcel at an annual rent of $1000. On the first of May he took posses sion of the whole and occupied during the year. In covenant for the rent; held, that he was entitled to a deduction by reason of the fraud, of the sum which he was obliged in good faith to pay for the corporation lease.

      It seems, that an action will lie for a fraudulent representation by which a party is induced to enter into a contract which is executory merely. Per Gardiner, J.

      It seems also, that where one conveys or .eases real estate, an action will lie for a fraudulent representation as to the title.

    Whitney sued "Allaire in covenant for rent, in the superior court of the city of New-York. On the first trial, the charge of the court upon the question raised was favorable to the plaintiff, and a verdict was had and judgment rendered for the amount of rent claimed. That judgment was reversed by the supreme court, on error brought, and a new trial ordered. (See 1 Sill, 484.) On another trial, the verdict and judgment of the superior court were in favor of the defendant. The plaintiff, having made a bill of exceptions, brought error into the supreme court, where the judgment was affirmed. The plaintiff brings error into this court.
    The case, as it appeared on the last trial, was this: The plaintiff claimed to recover upon an instrument duly signed and sealed by the defendant, in these words : “I have this day hired of Stephen Whitney the water lot, and his right to the wharf on the east side of Market-slip, for one year from the 1st of May next, at the yearly rent of $1000 and taxes on said water lot, whatever it may be, the rent to be paid quarterly. 9th February, 1837.”
    After the plaintiff had rested, the defendant called Richard 0. White, who had been sworn for the plaintiff, and offered to prove the representations made by the plaintiff to the witness, (who was the general agent of the defendant) respecting the extent of his right in the wharf on the east side of Market-slip, previous to the signing of the above memorandum. The evidence was objected to by the plaintiff’s counsel, the objection overruled, and an exception taken to the decision.
    The defendant then gave evidence tending to show that he was induced to sign the memorandum through a fraudulent representation of Whitney, that the right which was mentioned in the lease comprehended a certain other parcel of land which turned out to belong to the corporation of the city'of New-York; that Allaire discovered the fraud before the term commenced. and that in order to secure the parcel of land owned by the corporation, and which was necessary for the business.of the defendant, the latter was under the necessity of taking a lease thereof from the corporation, at an annual rent of $1000.
    White, the witness above mentioned, after testifying to the conversation which occurred between him and the plaintiff prior to the signing of the memorandum by the defendant, stated that the plaintiff told him that the wharf on the east side of Market-slip was his, and from this, witness supposed it was his, and so informed the defendant. This testimony was received without objection. The plaintiff’s counsel then examined the witness, and the defendant on further examination proposed to ask the witness the following question : “ What did you understand, at the time of the said conversation, from the statement of the plaintiff, that you did hire from him ?” The counsel for the plaintiff objected to the question, the objection was overruled, and the plaintiff excepted.
    The judge charged the jury that to defeat the right of the plaintiff to recover, the defendant must prove that the plaintiff had been guilty of fraud, and not that there had been a mistake or misconception upon the part of the defendant; that the plaintiff must have intended to mislead or entrap the defendant. That although the defendant, after the discovery of the extent of the plaintiff’s interest in the wharf in question, had entered into the possession thereof and enjoyed the use of the same for the term specified, without rescinding or offering to rescind the contract, yet he had a right to set up any fraudulent representations or concealment of the plaintiff, in respect to said contract, in bar of his claim for the rent or in reduction of the amount of such claim; that if the jury should find that a fraud had been committed by the plaintiff, in adjusting the matter, the court would lay down the rule, that the jury should consider what would have been a fair rent of the 150 feet of the wharf owned by the plaintiff; to this sum should be added the three quarters rent due, and taxes claimed in the declaration, and from that should be deducted the $1000 paid to the corporation, if they were satisfied that the same was a reasonable amount, and was agreed to be paid by the defendant in good faith, without any intent to defraud the plaintiff. The counsel of the plaintiff excepted to the whole and each part of the charge, and the jury returned a verdict for the defendant.

      E. Sandford, for plaintiff in error.

      F. B. Cutting, for defendant in error.
   Gardiner, J.

The first exception to the admissibility of any evidence to establish the fraud, is sought, to be sustained upon two grounds: 1. That the fraud relates to the title to lands. .2. Because the matters given in evidence are not embraced within the lease; as the plaintiff did not demise the wharf, but expressly limited it to his right to the wharf.

For more than thirty years it has been the settled doctrine of the courts of this state, that fraudulent representations in reference to the title of real estate, accompanied with damage, is a good ground of action, and that it is immaterial whether any or what covenants are contained in the deed of conveyance. This was -held in Wardell v. Fosdick, (13 John. 325,) where the defendant fraudulently sold without any title, but in effect with full covenants. In Monell v. Colden, (13 John. 402, 3,) the representation was that the vendor, as riparian owner, had' the pre-emptive right to a grant of land under water in the Hudson river, and opposite the purchased premises. In Ward v. Wiman, (17 Wend. 193,) the declaration was that the premises were free from incumbrance, and an action' for the fraud was sustained although the deed contained a covenant to the same effect. In Culver v. Avery, (7 Wend. 386,) the affirmation was that the premises were clear of any other incumbrance than the mortgage under which the sale was effected, and that the purchaser would acquire a perfect title. In the first case cited, the fraud pertained to the title of the land conveyed. In the second, to a privilege annexed to the land; in the third, to Eta incumbrance upon the title; and in the last, both to the title and to incumbrances. Such has been the adjudication of our state during the period mentioned.

The distinction between representations as to the title to land, and matters collateral to the land, was tabén in Culver v. Avery, and repudiated, (7 Wend. 386,). and I think with reason. There is no middle ground of principle, between excluding evidence of fraudulent representations in all cases of the conveyance of land, or admitting them when they refer to the title. They all are or may be equally obnoxious to objections arising from the statute "of frauds, and in each case the vendee can protect himself by appropriate covenants. The rule thus settled, affecting as it does the right of property, should be upheld unless its maintenance would conflict with established principles. No such conflict is perceived. On the contrary, it harmonizes with the law in relation to personal property, requires fair dealing from the vendor in each case, and permits the vendee, without a penalty upon his credulity, to trust to declarations of material facts within the knowledge of the other party. In a word, to treat with the vendor upon the presumption that he is an honest man.

2. There is no force in the objection that the plaintiff did not demise the wharf, but only his right to the wharf, and therefore the representation did not relate to a matter within the lease. The question in all these cases is not what passed by the conveyance, but what would have passed to the vendee, had the representations been true. The plaintiff fraudulently represented himself as the owner of three hundred feet of wharf, and the "defendant would have acquired that quantity by his lease, had the statement beén true, The lessor, however, knew at the time that he was the owner of one hundred and fifty feet only, and the falsehood as to trie extent of his right, was at once the inducement to the contract, and the reason why it was inoperative. (Monell v. Colden, supra ; Dobell v. Stevens, 3 Barn. & Cress. 623.)

The question put to White, as to his understanding of the extent of the plaintiff’s interest from his statement to him, was objectionable; but it could not have affected the verdict of the jury. The witness had previously sworn, without any objection, that the plaintiff told him that the wharf on the east side of Market-slip was his, and from this, witness supposed that the wharf was his, and so informed the defendant.” His “ understanding,” derived from the plaintiff’s statement, was therefore a part of the evidence before the jury, and its repetition could not have affected the plaintiff injuriously.

A more important question arises under the exception to that part of the charge in which the jury were told that the discovery of the fraud, and the subsequent entry of the defendant upon and the enjoyment of the demised premises, would not bar his right to damages.

In support of this exception it was argued, 1st. That until the discovery of the fraud, the defendant was not bound by the memorandum signed by him, and then only at his election: that prior to his adoption, the writing was in the nature of a proposition, and being adopted with a full knowledge of all the material -facts, there could be no fraud, because no deception when the contract had its inception.

This hypothesis is rather specious than solid. The agreement when executed was binding upon both parties, and could be repudiated by neither without the assent of the other, except by an action. If the defendant had discovered the fraud the day after the contract was made, he could have no relief short of a court of equity. In the mean time he would lose the advantage of a sale of his interest, would be in form legally responsible on his covenant, and subject to the doubtful chances of a litigation as the only means of reinstating himself in his former position. He made, as he had a right to suppose, an advantageous bargain, when in truth he had only purchased a lawsuit as a means of deliverance from a bad one. Now the very gist of the fraud consists in placing a man in this situation. It was an injury for which the supreme court have adjudged an action would lie, when the contract was consummated. I see no reason to doubt the correctness of their conclusion. Every one must perceive the distinction between a mere proposition, and an agreement requiring an action to avoid it; between the right to annul a contract by the mere volition of one of the parties, and a right to resort to a court of justice for the sama purpose.

In the second place, it was insisted that if there was an agreement, it was executory when the fraud was discovered ; and in such a case, whatever might be the rule as to contracts wholly or partially executed, the defendant, if he affirmed the contract, waived all right to damage for the fraud. In the first place, the contract was not executory, if by that is meant that until entry, the lease was a chose in action. A lease to commence in futuro is gran table. (Shep. Touch. 241.) .The interest vests presently, although it does not take effect in possession until a future time. (Comyn’s Dig. tit. Assignment; Taylor’s Land, and Ten. 207.) The defendant, therefore, upon delivery of the lease, acquired an interest in the term which he could assign, and for which he could maintain ejectment without any further act upon hi's part, if possession was withheld after his right of entry became complete. (Taylor’s Land, and Ten. 132; Adams on Eject. 2d ed. 33, 161.) The interest of the defendant cannot be distinguished from the sale of a chattel to be delivered at a future period, to be paid for subsequent to delivery. The property would pass by the contract of sale, and replevin might be maintained by the purchaser after the time stipulated for the delivery. (2 Sumn. R. 211.) But if the agreement was- executory, it would not, it is believed, change the right of the parties. It is conceded that if the" contract had been partly executed, even in the most trifling particular, the defendant would have the right to rescind and bring his action for the deceit, or affirm the contract and have his remedy by way of recoupment when sued for the rent. Why should he not have the same remedies when the contract is executory ? In neither case, according to the assumption of the plaintiff, could there be a contract until ratified with a knowledge of the fraud. And if an adoption under such circumstances, of the agreement, is an abandonment by the person defrauded, of his claim to damages for the deceit in the one case, it must be in both. In neither will repudiation of the contract alone, as I have attempted to show, relieve the party defrauded from his responsibility, and restore him to his rights as they existed prior to the agreement. No such distinction is recognized by the authorities. It is true, ' that if a party affirms a contract with knowledge of the fraud, he affirms it wholly, and this whether it is executory, or partially executed. But in neither case does he affirm it as a contract made in good faith. He consents to be bound by the provisions of the agreement, but does not thereby release or waive his claim for damages arising from a fraud collateral to the agreement. The case 5 Mees. & Weis. R. 83, is consistent with this doctrine, and the cases referred to in the opinion of the supreme court cannot otherwise be reconciled with each other or first principles.

The last question relates to the damages. The rule given to the jury was as favorable as the plaintiff had a right to require. The measure of damages in an action upon a warranty, and for fraud in the sale of personal property, are the same. In either case they are determined by the difference in value between the article sold, and what it should be according to the warranty or representation. (Sherwood v. Sutton, 5 Mason, 1; Clare v. Maynard, 6 Adol. & Ellis, 519 ; 4 Hill, 625.) The same rule obtains, I apprehend, upon the sale of real estate, where the action is for deceit; although a different one is applied when the suit is brought upon a certain class of covenants, such as that of warranty, quiet enjoyment, seisin, &c. which is founded upon considerations of public policy,, without reference to the actual damages sustained by the party.

In 13 John. 395, supra, it was held that the defendant was chargeable with all the damages resulting from the false representations. In Van Epps v. Harrison, (5 Hill, 69,) this rule was applied to an action upon a bond given for the purchase money of land, and where the defendant was suffered to recoup damages on occasion of the fraud of the vendor. Bronsón, J. remarks, that the jury must inquire how much less the land was worth for building purposes than it would have-been had the representations of the vendor been true.

This rule of compensation is founded upon sound principles of morality.' It compels the fraudulent vendor to make good the representations, upon the faith of which the vendee entered into the contract. This is but just. Applied to this case, it will at least justify the charge, and the verdict of the jury. Tne judgment should be affirmed.

Bronson, J.

It is not necessary in this case to decide, whether an action will lie for a false and fraudulent representation by the vendor of real estate that he has title to the property ; for that question seems not to have been made on the trial. And besides, the representation of which the defendant complains related to the extent of the demised premises, rather than the landlord’s title to the property. The conveyance was of all the plaintiff’s right to a wharf, without specifying its boundary or extent; and the complaint is, that the plaintiff said he owned the whole wharf, which is three hundred feet in length, when in truth he owned only one half of it.

Actions have been sustained where the deceit was in relation to some collateral thing, as the rents or other profits derived from the land, things appurtenant to it, the incumbrances upon it, the location, quality or condition of the land, what the vendor paid for it, and the like. (Ekins v. Tresham, 1 Lev. 102; 1 Keb. 510, 518, 522, S. C., by the name of Leakins v. Clizard; Lysney v. Selby, 2 Ld. Raym. 1118; 1 Salk. 211, S. C., by the name of Risney v. Selby ; Dobell v. Stevens, 3 B. & C. 623; Bowring v. Stevens, 2 C. & P. 337; Pilmore v. Hood, 5 Bing. N. C. 97; Holbrook v. Burt, 22 Pick. 546; Monell v. Colden, 13 John. 395; Culver v. Avery, 7 Wend. 380 ; Ward v. Wiman, 17 id. 193; Early v. Garret, 9 B. & C. 928; Sandford v. Handy, 23 Wend. 260; Van Epps v. Harrison, 5 Hill, 63.) Some of these cases are open to observation ; but it is enough for the present to say, that in none of them was the false representation upon the naked fact of title. In Wardell v. Fosdick, (13 John. 325,) the defendants fraudulently sold and conveyed land which had no real existence; and it was held that the purchaser might treat the deed as a nullity, and have an action on the case for the deceit. In Bostwick v. Lewis, (1 Day, 250,) there was a comoination to defraud the purchaser in relation to the quality of the land, as well as the title to it; and it may fairly be inferred from the report, that the recovery was on the ground of fraud in relation to the quality alone. Although evidence was given that the title to a part of the property was out of the vendor, it was admitted for the sole purpose of showing that the residue of the tract was of no value. In Wade v. Thurman, (2 Bibb, 583,) it was held that the vendee might have an action against the vendor for falsely representing that the title to the land was in a third person, who would convey at any time. If this case does not go too far to prove any thing, it is sufficient to say that it is not the case of a fraudulent representation by the vendor of title in himself; and I do not find that such an action has ever been maintained. The learned judge who delivered the opinion of the court in Leonard v. Pitney, (5 Wend. 30,) evidently thought that such an action would not lie; and the case of Roswell v. Vaughan, (Cro.Jac. 196,) as understood by Lord Holt and Powell, J. in Lysney v. Selby, (2 Ld. Raym. 1119,) tends to the same conclusion. It is a strong argument against the action that no precedent for it has been found.

In the usual course of business men insert covenants in their conveyances of real estate where it is intended that the vendor shall answer for the goodness of the title; and it is easy to see that bad consequences may follow if the vendee shall be allowed to lay aside his deed, and have an action founded upon conversations about the title pending the bargain. In Dobell v. Stevens, (3 B. & C. 623,) where the vendee of a public house was allowed to recover in an action for the deceitful representations of the vendor in relation to the amount of business done in the house, Chief Justice Abbott said, the representation was not of any matter or quality pertaining to the thing sold, and therefore likely to be mentioned in the conveyance, but was altogether collateral to it; as was the rent in the case of Lisney v. Selby. And in Monell v. Colden, (13 John. 403,) Thompson, Ch. J. remarked, that the false representation was not respecting any thing to be included in the deed, but with respect to a privilege which the plaintiffs were to acquire in consequence of owning the land on the shore adjoining the river. The intimation in both of these cases is, that had. the fraud related to the title, or any thing else which is usually provided for in the conveyance, the action could not have been maintained.

I do not intend to express a definitive opinion on the point; and have only said enough to show that it is a grave question, which, as it is not necessarily before us, should not be regarded as settled by our decision.

A present interest in the term passed by the lease: (Allaira v. Whitney, 1 Hill, 484:) and as the contract was not wholly executory when the defendant discovered the fraud, the question which was considered in The Saratoga R. R. Co. v. Row, (24 Wend. 74,) does not arise.

The defendant called his agent, White, as a witness, who gave the conversation between himself and the plaintiff about hiring the wharf; the defendant was then allowed to ask him what he understood from the statement made by the plaintiff on that occasion; and the witness answered that he understood from the conversation that the plaintiff owned the whole wharf from Water-street to the end of the pier. The plaintiff was not answerable for the manner in which the witness understood the conversation, unless he had a right so to understand it; and how it should be understood was a question for the jury. It was for them, and not the witness, to draw the proper inference from what the plaintiff said. I see no principle on which the evidence could be properly received; and on that ground I think the judgment should be reversed, and a venire de novo be awarded.

Wright, J. was also for reversal on the same ground; but on the other questions he concurred with Gardiner, J.

Jones, J. orally delivered an opinion for reversal on the same ground with Bronson, J.; also on the ground that the defen dant, by taking and enjoying the possession after the discovery of the alleged fraud, had elected to affirm the contract, and therefore had no legal cause' of complaint. He also thought the rule of damages was improperly laid down at the trial.

Gray, J. concurred with Jones, J.

Jewett, C. J., Ruggles, J. and Johnson, J. concurred in the opinion of Gardiner, J.

Judgment affirmed.


source: Caselaw Access Project

author: Jewett, Ch. J.

license: Public Domain

text:
    Sherman vs. The Mayor, Aldermen and Commonalty of the City of New-York.
    S. contracted with the corporation of the city of New-York to furnish all the materials and labor necessary to complete the excavation, re-filling, and re-paving of a trench of specified dimensions for water pipes.- The corporation agreed to pay as a “ compensation for such excavation, re-filling, and re-paving,” as follows: “ Por executing the digging” and re-filling, seven cents per cubic yard; for repaving, &c. four cents per square yard. A considerable portion of the trench was excavated through hard pan, and this was proved to be worth 75 cents per cubic yard. Another portion was through rock, worth $1,00 per cubic yard. It was also shown that seven cents (the contract price) per yard was the lowest price for excavating common earth. Held, nevertheless, that S. could recover nothing beyond the contract price, and that extrinsic evidence was not admissible to prove the valxs cf excavating hard pan and rock.
    The ccntract provided that, as the work progressed, the engineer of the corporation should, upon the request of the contractor, make estimates of the work done, which estimates were to be paid on the next pay day, less ten per cent; also that when the work was done, the engineer should make a final estimate of all moneys due to the contractor, and then the whole to be paid. The engineer accordingly made a final estimate. It seems, however, competent in such a case, to resort to other proof of the amount of the work.
    On error from the supreme court. Sherman sued the mayor aldermen and commonalty of the city of New-York, in the superior court of that city. The cause was heard before referees appointed by that court, and the case was this : On the 17th of November, 1.842, a written contract, under seal, was entered into between the plaintiff and defendants, whereby the plaintiff agreed “ to furnish all the materials and labor necessary to complete the excavation, backfilling, ramming, and re-pavitig” of a trench for water pipes in 14th street, from Union square to avenue A. The trench was to be six feet wide at the bottom, and eight and a half feet deep. The back filling and ramming was defined by the contract to be the filling up of the trench in a certain specified manner, after the pipes should be laid. The compensation for the work was provided for in the same agreement in these words: “And the parties of the second part agree to pay the party of the first part in full compensation for the excavation, back filling, ramming and repaving aforesaid:
    “ For executing the digging, back filling, and ramming of the said trench, at the rate of seven cents per cubic yard. For re-paving,” <fcc.
    It was also provided in the contract, that the engineer of the corporation “ should, upon request of the contractor, make estimates of the work actually completed, and not included in any previous estimate; and that payments should be made upon such estimates, at the succeeding pay day as by law established ; ten per cent being retained until thirty days after the completion of the whole work, when a final estimate was to be made of all moneys due to the contractor, the same to be pain at the next succeeding pay day.” The work was “ to be subject to the inspection of the defendants by their engineer aforesaid, and was to be done at such times and- in such order as the said engineer should direct.” There were also other provisions in the contract upon which no question arose.
    On the hearing before the referees, the plaintiff offered evidence as to the amount and value of the work done under the contract. The defendants objected to any other evidence of such amount and value than the estimates of the engineer under the contract. The referees admitted the evidence, and the defendants excepted. It was then proved that the amount of excavation, independent of hard pan and rock, was 5416 cubic yards. The plaintiff then offered evidence of the amount and value of the hard pan and rock excavation, insisting that the seven cents per cubic yard for “ executing the digging,” &c. as provided for in the contract, did not cover this species of excavation. The defendants objected to the evidence on'the ground that the written contract controlled the price, and did not admit of any other rate of compensation than the seven cents per cubic yard. The referees admitted the evidence, and the defendants excepted. It was then proved, that the amount of hard pan. excavation was 5146 cubic yards and 12 feet, and of rock excavation 491 cubic yards and 21 feet; that the hard pan excavation was worth 75 cents per yard, and the rock $1,00 per yard. It was also shown that seven cents per yard was the lowest price,for common earth excavation. There was some evidence tending to show that when the plaintiff entered into the contract, he might, with ordinary attention and diligence, have ascertained the character of the ground to be excavated ; and there was also evidence tending to a contrary result.
    “ The referees reported in favor of the plaintiff the sum of $4743,43, which included the above quantities of hard pan and rock excavation at the prices proved. The defendants moved, in the superior court, to set aside the report, which motion was denied, and judgment rendered for the amount reported and costs. The defendants then removed the cause by writ of error into the supreme court, where the judgment of the superior court was reversed, and a new trial ordered in that court. The plaintiff brings error to this court.

      S. Sherwood, for plaintiff in error.
    The price for “ executing the digging,” which means, according to the popular sense, the loose excavation which may be done with a spade or shovel, was seven cents per cubic yard, and was not intended, nor did it in fact include “ rock” or “ hard pan,” the first worth $1,00, and the latter 75 cents, per cubic yard.
    The position taken by the defendants, that “ the engineer’s estimate of the amount and value of the work should be taken instead of other proof,” cannot be sustained, inasmuch as no provision to that effect wg,s contained in the contract; and estimates were never made satisfactory to the plaintiff, or founded upon a knowledge of the work by the engineers.
    The objection that no proof of the value of hard pan or rock excavation could be given with a view tó compensation, on the ground that the contract did not admit of any extra compensation therefor, was not well taken.
    ■ The words, in the instrument, executing the digging,” shows the sense of the parties, and refers to the lowest grade, or common earth excavation, which only could be done for seven cents per yard.
    It was competent to show by parol proof, that.neither rock nor hard pan were included in the terms “ executing the digging,” by showing the usage in relation to the allowance for either when found, and by showing the value of the lowest grade, or earth excavation, from which the meaning of the parties could not be mistaken.
    Evidence of usage, or course of trade, where the contract is to be carried into effect, is admissible to explain the meaning, and remove the doubt.
    Ambiguous terms may be explained by proving the facts and circumstances tending to show the sense in which the terms were used. (Doe v. Burt, 1 T. R. 701; Coit v. Com. Ins. Co. 7 John. 385 ; Powell on Cont. 378; 3 Kent’s Com. 556; Story on Conf. of Laws, 225, 233.)

      Willis Hall, for defendants in error.
    (1.) The testimony as to the amount and value of the work done under the contract was improperly admitted, as that was to be paid for on the estimate of the engineer; and he having made a final estimate, the same is conclusive. (2.) The evidence as to the value of the hard pan and rock excavation, was improperly-admitted.
    The terms of the written contract include excavation of every kind, and the price of seven cents per cubic yard is stipulated to be “ in full compensation” therefor.
    There is nothing in the contract to indicate that the word
      “ excavation” is used in any special sense. The written contract must therefore govern as to the rate of compensation for that labor. (Robertson v. French, 4 East, 135; Delaware & Hudson Canal Co. v. Dubois, 15 Wend. 89, 95.)
    (3.) It was the duty of the contractor to have ascertained the nature-of the soil before entering into the contract. Ordinary diligence would have enabled him to do so.
   Jewett, Ch. J.

The principal question in dispute between the parties is, whether the plaintiff had a right to show and recover the real value of excavating that portion of the trench composed of, “hard pan,” or “rock.” The plaintiff offered such evidence, which the referees admitted, although objected to. The plaintiff insists' that for excavating such portions of the trench no price was agreed upon between the parties, and that therefore he is entitled to show its value, and recover accordingly ; that the contract merely contemplates and provides for excavating common earth. The argument for the plaintiff is founded upon the idea that the term digging, as applied in the contract, means nothing beyond removing common earth, and does not include hard pan or rock, or at least the term is ambiguous as applied, and therefore may be explained by proof of facts and circumstances tending to show the sense in which it was used by the parties in this contract.

I am unable to see any ground for such argument. The plaintiff expressly contracts to furnish all the materials and labor necessary to complete the excavation of the trench in the manner set forth, and as a full compensation for the excavation aforesaid—that is, for opening the trench described—it is agreed that he should be paid by the defendant, seven cents per cubic yard.

The term “ for executing the digging,” in the paragraph describing the rate of compensation, is plainly used as synonymous with the term excavation in the paragraph immediately preceding it, and the same term is used in the specification • showing the manner in which the work was to be done.

It may have been a hard and ill advised contract on the part of the plaintiff. The substance to be dug out to make the trench, may have been composed of materials unexpected by him, rendering it worth tenfold more to do the work than he expected, but that furnishes no valid ground to say that the digging contracted for was not to be of any other material than common earth.

The contract, under the head excavation, called for the opening of a trench of the prescribed width and depth, through whatever substances should be met with on the line agreed upon; and full compensation for that part of the work is agreed upon under the terms for executing the digging,” at the rate of seven cents per cubic yard. Therefore I am of opinion that the referees erred in admitting parol evidence of the value of that work. I think it is fixed by the written contract, which must, in this case, control the rate of compensation.' An objection was made by the defendant that it was not competent for the plaintiff to prove the number of yards excavated, in doing the work, by any other person than the engineer. It is supposed that the parties have, by their contract, confined the proof as to the amount of the work to the estimates of the defendants’ engineer. I do not think that its terms can receive such construction. The referees were right therefore in admitting the evidence offered as to the amount of the work. I am of opinion the judgment of the supreme court should be affirmed.

Judgment affirmed.


author: Bronson, J. Jewett, Ch. J. Gardiner, J.

text:
    Spies vs. Gilmore and others.
    Where a note, specifying no place of payment, was made and endorsed in the state of New-York, but the maker and endorser resided in a foreign country, and continued to reside there when the note fell due, their place of residence being known to the payee and holder, both when the note was given and when it matured; held, that presentment of the note to the maker, demand of payment from him, end notice to the endorser, were necessary in order to charge the endorser.

      F. being indebted to S'., in order to obtain further time for payment, executed to him a note payable to the order of S. Before the note was delivered to S., G. endorsed it. The purpose for which the note was made being known to him, and it being part of the arrangement that he should become security for F. Held, that G. was liable only as endorser, and not as a joint maker, or as a guarantor.
    The case of Hall v. Newcomb, in error, (7 Hill, 416,) referred to, and the doctrine there established, reaffirmed.
    On error from the supreme court. Adam W. Spies sued Robert Gilmore, John Jewett and George W. Jewett, in the superior court of the city of New-York, upon a bond given in a proceeding by attachment instituted by Spies against Gilmore as a non-resident debtor. The bond bore date October 20th, 1841, and was executed by Gilmore as principal, and by the other defendants as his sureties. The condition of the bond was such, that the plaintiff’s right to recover depended upon the question whether, at the time the proceeding was instituted, he was a creditor of the said Gilmore, and the facts relating to that question, as proved on the trial, were as follows : On the 16th of September, 1835, one John Furlong executed to the plaintiff his promissory note, as follows:
    “ $530,07. New-York, Sept. 16, 1835.
    , Six months after daté, I promise to pay to the order of Mr. Adam W. Spies five hundred and thirty r\\ dollars, value received. John Furlong.”
    The defendant Robert Gilmore was the first and only endorser on this note. At the time the note was given, Furlong was indebted to the plaintiff in the amount thereof for goods sold to him by the plaintiff, at a credit of six months, which had expired. Furlong applied for a further credit of six months, and proposed to give the defendant Gilmore as security. The plaintiff agreed to the proposal. This arrangement took place in the presence of Gilmore, and in pursuance thereof Furlong executed and Gilmore endorsed the above note. The note was made and endorsed in the city of New-York, but both the maker and endorser then resided at Matamoras, in Mexico, and continued to reside there when it came to maturity; and their residence was known to the plaintiff. There was some evidence tending to show that when the note fell due the plaintiff wrote to the maker and endorser at Matamoras, stating the non-payment of the note, and requesting payment, but there was no evidence that the note was presented to the maker or any other demand made upon him than by the letter aforesaid.
    The superior court ruled, and so charged the jury, that under the circumstances of the case, as they appeared in the evidence, no demand and notice were necessary to enable the plaintiff to sustain the action. The defendants excepted. A verdict and judgment for the plaintiff were had in the superior court. The supreme court, on writ of error, reversed such judgment. (See 1 Barbour’s Sup. Court Rep. 158.) And from the decision last mentioned the plaintiff brings error to this court.

      Charles O’Conor, for the plaintiff in error.
    Furlong the maker, and Gilmore the endorser, having been both residents of Mexico, a foreign country, at the maturity of the note, the plaintiff was entitled to recover without evidence of demand or notice. (2 Burr. 1077; Brown v. Harraden, 4 T. R. 148 ; 1 R. S. 768, § 1; Chitty on Bills, 400,485, note e, 8th Am. ed.; Magruder v. Bank of Washington, 9 Wheat. 598; Anderson v. Drake, 14 John. 117; Hepburn v. Toledano, 10 Mart. 643; Story on Prom. Notes, § 236; 1 Dev. Law R. 247; Taylor v. Snyder, 3 Denio, 151; 20 John. 102; 1 id. 94; 7 T. R. 242; Co. Litt. 210, B.; 3 Cov. Powell on Mort. 939, note u.; 2 Smedes & Marsh. 553; 8 N. Hamp. Rep. 413 ; 20 Maine Rep. 325; 1 Bingh. N. C. 151; Consequa v. Fanning, 3 John. Ch. Rep. 588; 17 John. 518; Cox et al. v. United, States, 6 Peters, 203; Story’s Confl. Laws, § 280; Buckner v. Finley, 2 Peters, 590; ib. 179, App. 2.)
    The note ought to be held binding upon Gilmore as the joint and several note of himself and Furlong, or as a guaranty (Hall v. Newcomb, 3 Hill, 234, S. C. in error, 7 id. 420 Labron v. Woram, 1 id. 93; 2 id. 84; 4 id. 421; Dean v Hall, 17 Wend. 217.)

      A. Crist, for the defendant in error.
   Bronson, J.

There are a few cases in the books which hold, in effect, that a written contract of one kind may be turned into a contract of a different kind, by parol proof concerning the intention of the parties; that the endorser of a promissory note may, under certain circumstances, be charged as maker or guarantor; and that the guarantor of a promissory note may sometimes be charged as maker or endorser. Although these cases stand upon no principle, it has been a work of some time and difficulty to get rid of them. The court of errors was at first equally divided on the question; but after a second argument the court decided by a pretty strong vote to uphold contracts as they had been made by the parties, instead of making new contracts for them. (Hall v. Newcomb, 3 Hill, 233, and 7 id. 416, S. C. in error, and note, p. 426 ; Seabury v. Hungerford, 2 id. 80 ; Manrow v. Dunham, 3 id. 587, per Bronson, J.) The work was not completed until after this proceeding had been commenced, and the case had been disposed of in the superior court. It is evident from the declaration that the plaintiff expected to recover on the ground that Gilmore might be charged as maker or guarantor. But the court of errors having overturned that doctrine, the plaintiff now seeks to uphold the judgment on another ground. He insists that as Furlong, the maker, lived at Matamoras, out of this state, and out of the United States, at the time the note fell due,- no demand of payment from the maker, nor notice of non-payment, was necessary for the purpose of charging Gilmore as endorser. No such exception to the general rule, which requires demand and notice, has ever been sanctioned by the courts; and Taylor v. Snyder, (3 Denio, 145,) is a case in point against the plaintiff. It is not pretended that the maker had absconded, or removed out of the state, after the note was made; nor that there had been any other change of circumstances to excuse the want of a demand. So far as appeared on the trial, the maker still continued to reside at Matamoras, in Mexico, where he resided when the note was given, as the plaintiff well knew. The oidy excuse which has been offered for not making demand is, that it would have been inconvenient to go or send to Matamoras for that purpose. It is often inconvenient to present the note for payment when the maker and holder both reside in the same state; and yet when the maker has a known place of residence, and there has been no change of circumstances after the giving of the note, mere trouble or inconvenience to the holder has never been held a good excuse for omitting the demand. And this is so, however wide asunder the maker and the holder may live. If the plaintiff wished to avoid the inconvenience of sending to Matamoras, he should have made the note payable in New-York, or got an endorsement with a waiver of demand. He has no right to change the contract which the endorser made, for the purpose of promoting his own convenience.

If the demand could be dispensed with, the endorser was still entitled to notice of the default of the maker, and that the holder looked to the endorser for payment; and there is no color of excuse for omitting to give notice. The giving of it would have cost the plaintiff no trouble, beyond sending a letter by the next ship which sailed for Matamoras, where the endorser lived. The plaintiff attempted to prove that this was done; but there was a defect in the evidence. If there had been proof enough to carry the cause to the jury on that point, it would not aid the plaintiff; for the question was not left to the jury. The judge instructed them that neither demand nor notice was required by law to entitle the plaintiff to his action. The truth evidently is, that the cause was tried upon the doctrine which has since been finally exploded, that Gilmore might be charged as maker or guarantor of the note. He was in fact endorser, and nothing else; and as such he was entitled to notice

I am of opinion, upon both grounds, that the reversal by the supreme court (1 Barb. 158) was correct, and that their judgment should be affirmed.

Jewett, Ch. J.

The case of Hall v. Newcomb, (7 Hill, 416,) is m point to show that Gilmore cannot be made liable to Spies, as guarantor or maker of the note. The material question then is, Was there proof given on the trial, sufficient to charge him as endorser ? The evidence showed that both the maker and endorser at tlje time of making and endorsing the note, as wed as at the time of its maturity, were residents'of and doing business at Matamoras in Mexico, and that these facts were known to Spies, who at the same time resided in New-York, where the note was drawn, dated and endorsed. There was no evidence given to show either a demand of payment of the maker, at maturity, and notice of non-payment to the endorser, or of any facts'constituting an excuse for omitting to make such demand, or any efforts to make it and give such notice, other than to show the residence of the maker and endorser to have been in Mexico, a foreign country. It is insisted in behalf of the plaintiff, that upon that ground the law excuses any demand and notice. The general rule of law is, that when a promissory note is not made payable at any particular place, in order to charge the endorser, payment must> be demanded of the maker personally, or at his dwelling house,..or other place of abode, or at his counting house or place of business. The note in question is not made payable at any particular place. There are, however, exceptions to this general rule, by which any demand is dispensed with. It is a question of diligence, and if a demand is found to be impracticable, proper efforts for that purpose having been made, the endorser will still be held liable, due notice having been given to him by the holder. These exceptions are enumerated in the opinion of the court delivered by Mr. Justice Beardsley in Taylor v. Snyder, (3 Denio, 151,) and embrace cases under the following circumstances: 1. When the maker has absconded, that will ordinarily excuse a demand ; and notice of the fact is sufficient to hold the endorser. 2. When the maker is a seaman ón a voyage, having no domicil in the state, the endorser is liable without a demand being made ; nut if he has a domicil in this state, although he be absent on a voyage, payment must be demanded there. 3. Where the maker has no known residence or place at which the note can be presented for payment. 4. Where a note is made by a resident of the state, who, before it is payable, removes from the state and takes up a permanent residence elsewhere, the holder need not follow him to make demand, but it is sufficient to present the note for payment at the former place of residence of the maker.

These exceptions to the general rule, as Judge Beardsley remarked, it will be seen, all rest on peculiar reasons. In the first, the maker has absconded; in the second, he is temporarily absent, and has no domicil or place of business within the state; in the third, his residence, if any he has, cannot be ascertained; while in the fourth, he has removed out of the state and taken up his residence in another country. In each of these instances, let it be observed, the fact constituting the excuse, occurs subsequently to the making and endorsement of the note; and it is this new and changed condition of the maker, and that only, by which the endorser stands committed, without a regular demand. And this is just: for it is but reasonable to suppose that neither party, when the note was given, looked for this new and changed condition of the maker, and that each contracted upon the supposition that no such change would take place.

It is obvious that the case at bar is not within either exception to the general rule dispensing with a demand and notice. No change in the condition of either party has taken place since the note was made and endorsed. The maker and endorser, I repeat, respectively had a residence in Mexico at the time the note was made in New-York, which remained unchanged at the maturity of the note, and which was known to the plaintiff at each period of time. If the exception now insisted upon is made, it must rest upon some principle not hitherto recognized by any rule of law, as I think is abundantly shown by the opinion in the case to which I have referred.

I cannot assent to the truth of the position assumed, that because the maker and endorser of a promissory note at the time of the making and endorsing reside in another state or foreign country, the endorser may be held liable without any demand being made on the maker; especially when such residence was known to the holder at the time the note was made and has not been changed before the maturity of it. And in this there is no injustice: for it is but reasonable to conclude that each party contracted upon the supposition that the holder should make a demand of payment on the maker at maturity, at the place of his residence, and if not paid give notice to the endorser, or else a place as well as time of payment would be stipulated for in the note itself. To hold that a demand and notice can be dispensed with on the ground that the maker and endorser resided in a foreign country at the time of the making and maturity of the note, would, in my judgment, be nothing short of judicially changing the terms and legal effect of the contract between these parties. I think the judgment of the supreme court should be affirmed.

Gardiner, J.

dissenting. I cannot assent to the opinion, that a demand of the maker was necessary in this case. By his endorsement, the defendant contracted that if the note was duly demanded of the maker and not paid, or if after the exercise of due diligence no such demand could be made, he would on receiving due notice pay the amount to the endorsee or holder. (14 John. 117.) The question is whether due diligence required that a demand should be made of the maker, under the circumstances disclosed by the evidence.

In Anderson v. Drake, (14 John. 114,) it was held that where the note is not payable at a particular place, and the maker has a known and permanent residence within the state, the holder is bound to make demand at such residence. The rule applies where there has been a change of residence by the drawer subsequent to the making the note, as well as to other cases. In McGruder v. Bank of Washington, (9 Wheat. 601,) it was decided that where the maker of a note had removed into another state subsequent to the making, no demand was necessary. So also in Anderson v. Drake, (supra, 117,) and in Taylor v. Snyder, (3 Denio, 146.) Justice Beardsley, in delivering the opinion of the court, after a very able review of all the cases, came to the conclusion that demand and notice must be given where the drawer of the note at the time of the making and when it fell due, had a known residence in one of the United States—the payee residing and the note being given in this stale.

The question is now presented in a new form,,whether the payee, in the exercise of due diligence, is required to follow the maker to a foreign country in order to make a demand.

If the legal effect of the contract of the endorser is as stated by the learned judge in Snyder v. Taylor, namely, that it requires a demand except in those cases where it “shall be found impracticable,” the plaintiff was not excused in this instance, since it was possible to have demanded payment of the maker when the note matured. But I apprehend that this is stating the condition of the endorser’s liability a little too broadly. In McGruder v. Bank of Washington, it was neither impossible or inconvenient to have demanded payment, as the maker lived, after his removal from the district of Columbia to the state of Maryland, only nine miles from the holder. The court determined, as matter of law, that, due diligence did not require a demand under such circumstances. They say, “ on this point there is no other rule that can be laid down which will not leave too much latitude as to place and distance.” The rule was adopted as a rule of convenience, and not .on account of its abstract justice. The reasoning of the court is applicable to the case before us. In the absence of direct authority, we are called upon not to make a new exception to the general rule, but to apply that rule to a new class of cases. Expediency, public convenience, it seems to me, require that the necessity of a personal demand should be confined to cases where the maker resides within the states or territories of the Union. It is difficult to prescribe any other rule which will not leave “ too much latitude as to place and distance,” and of course be fluctuating when it should be certain. Instances will readily occur to every one, in which the making of a demand in a foreign country would be attended with little inconvenience, and others in which it would be impracticable. Between these extremes there is a wide interval which would be opened to litigation, which sound policy requires to be closed. The case of Hepburn v. Toledano, (10 Martins R. 643,) and the remarks of Judge Story in his treatise, are opposed to the'extension of the privilege of an endorser further than they have been carried in Snyder v. Taylor, even if the criticism of Judge Beardsley upon that case is in all respects correct. Looking then to the nature of the instrument in question, as essentially domestic in its origin and uses; to public convenience, vvhich demands certainty in the general rule, rather than strict equity in special cases ; and to the extent of the country under the government of the United States, I have come to the conclusion that no demand was necessary in this case in order to charge- the endorser.

Judgment affirmed.


author: Ruggles, J. Bronson, J.

text:
    Noble and others vs. Halliday.
    By statute (2 R. S. 464, II 41, 42; id. 469, II 67, 68, 72; id. 43, § 12) whenever a receiver of an insolvent corporation “ shall.shoto by his own oath or other competent proof,” that any person is indebted to the corporation, or has property of the corporation in his custody or possession, the officer to whom the application is made shall issue a warrant to bring such person before him for examination. Under this statute it is sufficient for the receiver, who applies for a warrant, to swear to the facts on, information and belief.

    Accordingly, where the receiver of an insolvent corporation applied for a warrant under the above statute, and showed the facts only by his own oath on his information and belief, and a warrant was issued upon which the person proceeded against was taken and brought before the officer; held, in an action brought by such person against the receiver and others acting under the warrant for an assault and battery and false imprisonment, that the warrant was a good justification. Under the above statute, a person having in his custody, as administrator of a deceased person, effects of the corporation, or indebted as such administrator, is liable to be proceeded against; and where the sworn petition, on which the warrant was granted, stated that such person had property of the corporation in his custody, either individually or as administrator, &c. held good.
    On error from the supreme court. Halliday sued Noble, Livingston and Lamberson, in the superior court of the city of New-York, for an assault and battery and false imprisonment. On the 20th of July, 1841, Noble, one of the defendants, was appointed by the court of chancery receiver of the property and effects of The New-York Northern Fire Insurance Company. On the 24th of November, 1841, Noble, as-such receiver, presented a petition to the recorder of the -city of New-York, and obtained from that officer a warrant directed to the sheriff of that city and county, commanding him to bring the plaintiff before the recorder for the purpose of being examined. The warrant was duly served and the plaintiff held in custody under it; and that was the assault, <fcc. for .which the action was brought. The question presented by the pleadings, on demurrer, was, whether the petition and oath annexed thereto, on which the warrant issued, were sufficient to aüthorize the issuing of such warrant. The principal facts required to be shown to the officer, were stated and sworn .to on the information and belief merely of the petitioner. That was one objection to the validity of the proceeding. Another was, that the petition stated that the plaintiff Halliday, either individually or as administrator with the will annexed, of Robert Halliday deceased, (without stating which,) had in his hands and custody property and money which belonged to the petitioner as such receiver; and it was insisted for the plaintiff that he was not liable under the statute to be proceeded against as an administrator, and therefore that the petition being in the alternative did not give the officer jurisdiction. The superior court gave judgment against the plaintiff; which, on error, was reversed by the supreme court. (1 Barb. Sup. Court Rep. 137.) The defendants bring error into this court. The statutes defining the powers of Noble as such receiver, and under which the proceeding in question was instituted, are material to a proper understanding of the case ; and these are sufficiently set .forth in the opinion of Ruggles, J.

      h. Livingston, for plaintiffs in error.

      E. Sandford, for defendant in error.
   Ruggles, J.

The question raised by the pleadings in this case is, whether the petition presented by Noble, the receiver of The New-York Northern Insurance Company, verified by his own oath as to the principal facts, on his information and belief, was sufficient to give the recorder jurisdiction to issue the warrant. If it was, the arrest of Halliday was legal, and his action, founded on the supposed illegality of the arrest, must fail.

The legality of the warrant is here drawn in question in a collateral action; and for the purpose of maintaining the action it is necessary to show not merely that the recorder’s decision in granting the warrant was erroneous, but that it was absolutely void.

The authority of the receiver to apply for and obtain the warrant against Halliday will be found in the following sections of the revised statutes, by which the receiver of insolvent corporations is charged with like duties and clothed with the same powers as are by another section given to trustees and assignees in cases of insolvency. (2 R. S. 464, §§ 41, 42 ; id. 469, §§ 67, 68, 72; id. 35, § 1.) The nature and extent of the powers and duties of trustees of insolvent debtors will appear by 2 R. S. 40, 41, 42, §§ 6, 8, 12. The latter section is that under which the warrant issued. It is as follows :

§ 12. Whenever the trustees shall show by their own oath or other competent proof, to the satisfaction of any officer named in the first section of the seventh article of this title, or of any judge of a county court, that there is good reason to believe that the debtor, his wife, or any other person, has concealed or embezzled any part of the estate of such debtor, vested in the said trustees; or that any person can testify concerning the concealment or embezzlement thereof; or that any person who shall not have rendered an account as above required, is indebted to such debtor, or has property in' his custody or possession, belonging to such debtor; such officer or judge shall issue a warrant, commanding any sheriff or constable to cause such debtor, his wife, or other person, to be brought before him at such time and place as he shall appoint for the purpose of being examined.”

Upon a careful examination of the case I am satisfied that the judgment of the supreme court was erroneous; and that the error arose mainly from a misconception of the nature of the proceeding against Halliday. It was in substance a proceeding to obtain his testimony as a witness, and not a proceeding against him as a party for relief by judgment or decree. It is true he was an interested witness and was called to testify against his interest, and in that respect he stands in the situation of a defendant in a bill of discovery, where the sole object of the proceeding is to obtain the defendant’s evidence under oath. The proceeding authorized by the statute appears to have been intended as an informal, but prompt and effective substitute for the tedious and expensive process on a bill of discovery in a court of equity. The necessity and utility of the proceeding are too obvious to require elucidation. The' property of an insolvent corporation is usually in the hands of the officers and agents under whose management it has become insolvent. They are frequently its largest debtors; and the power of compelling them and all others to disclose its condition, and of ascertaining by that means where its property is, in whose hands, under what claim or pretence it is held, and who are its debtors, is indispensable to the interest of its cred itors for whose benefit it is to be collected and distributed by the receiver.

It seems to have been supposed that an executor or administrator cannot be called upon to testify, under this statute, in relation to a debt due from his testator or intestate, or in relation to property in his hands claimed in his representative ca pacity. I am at a loss to know whence that idea could have arisen. Certainly not from the statute itself. If the administrator have in his custody and possession property belonging to the corporation, it is immaterial by what right he claims it. He is bound to testify in relation to it. And if as administrator he is indebted to the corporation, there is nothing in the statute to excuse him from disclosing, under oath, what he knows in relation to such indebtedness. Such a case is embraced within the general terms of the 12th and 13th sections of the statute.

The cases of Jackson v. Walsworth, (1 John. Cas. 362,) and Hinds case, (9 Wend. 465,) have no application to this proceeding for discovery. Those cases relate to attachments against the property of an absconding debtor under 2 R. S. 3, 4. Proceedings under that statute have no resemblance or similarity to the proceedings against the debtor of an absconding debtor to compel him to testify. To authorize an attachment against an absconding debtor, the creditor must, by the. express terms of the statute, have a demand against him personally. (2 R. S. 3, § 3.) But the power to examine those who have his property, or who owe him money, is not thus limited. The statute would be exceedingly defective if it exempted those who owe in a representative capacity from liability to answer like all others as to their indebtedness. Executors and administrators are not thus exempted upon a bill in equity for a discovery, and the power under the statute to call for a disclosure is as ample as under such a bill. The receiver therefore was right in calling on Halliday to testify in relation to property that he held, or money that he owed the corporation as administrator with the will annexed of a deceased person. In that character he was liable to an action at law by the receiver ; and the power of discovery was undoubtedly intended to be co-extensive with the right to sue.

It constitutes no good objection to the petition for the warrant, that the grounds on which it was demanded were stated in the alternative. If it had been a declaration in a suit at law, or an indictment, or a proceeding under the act to abolish imprisonment for debt, by which Halliday might have been committed to jail until he paid a debt, the objection would have been a good one. In these cases the plaintiff, or party prosecuting, is supposed to know the ground of his proceeding; and he is bound to state it with precision, in order that the defendant may know what he is to controvert; for he controverts at the peril of his property or his liberty. But this was a proceeding of a different character. The object was inquiry, and nothing else; and the receiver could not be required to state positively facts which he did not know, and which he could not be supposed to know until the inquiry should be answered. In bills of discovery the complainant’s allegations are usually stated in the alternative. They are so stated in judgment creditors’ bills, and in others of the like nature, although relief as well as discovery is sought. No hardship was imposed on Mr. Halliday in compelling him to answer allegations thus stated. Nor is there any just objection on his part to the discovery, at the same time, of matters which might affect him individually, and of others which might affect him in a representative capacity. The statute authorizes an informal discovery; and it is much better that it should all be done at one time and under the same process, than to have two distinct applications and warrants.

The remaining question as to the sufficiency of the petition is, whether the facts set forth in it were properly verified. It was sworn to by Noble, in the form heretofore prescribed in the court of chancery for the verification of bills of discovery, that is to say, as to the principal facts on his information and belief. In determining this question the statute under which the warrant issued must be our guide. This statute (2 R. S. 43, § 12,) does not require the receiver to establish the truth of his petition by positive proof. It does not require him to give positive proof of the facts and circumstances from which its truth is to be inferred. It requires him to show to the satisfaction of the officer that there was good reason to believe that Halliday was a debtor to the corporation, or that he had its property in his possession; and it made the receiver’s own oath evidence for that purpose. It also authorized “other competent proof” instead of the oath of the party ; but the makers of the statute could not have intended proof competent to establish the facts in a legal sense, as before a jury. The facts are not required to be so established; and proof sufficient to create a rational belief is all that the language calls for, and this may fall far short of that which is necessary to authorize a verdict. In all other respects the statute is silent with respect to the nature and quality of the proof on which the officer is to exercise his judgment.

By the act of 1811, for relief against absconding debtors, from which the provisions in the present statute are taken, (see 1 R L. 160, § 12,) a warrant in a case like the present might have been issued by any justice of the peace, upon Lie applica tion of the trustees against any person known or suspected to detain any part of the estate or to be indebted to it.” The present statute has taken this power away from justices of the peace, and has conferred it upon officers of a higher grade. (2 R. S. 34, § 1.) And instead of allowing the warrant against any person whom the trustees might suspect to be indebted to the estate, it is now allowed, wherever the officer has “good reason to believe,” that any person is so indebted. But the object and policy of the law is unchanged; and it is apparent that the legislature intended to, permit examinations of this nature to be made at the instance of receivers and trustees upon very slight proof; a shade stronger, indeed, than mere suspicion; but it is clear that legal certainty is not required. It would have been absurd to require it, or to suppose it could De had until after the arrest and examination.

The proof in this case was that the receiver was informed and believed that Halliday was indebted to the corporation and had its property in his possession. According to the case of Fitch, an absent debtor, (2 Wend. 298,) this was sufficient. In that case the creditor was required by the statute, (1 R. L. 163, § 23, act of 1801,) to make proof by two witnesses to the satisfaction of the judge, of the residence of the debtor out of the state. Two witnesses swore to their belief that he resided out of the state, without setting forth the grounds of such belief. The proof was held to be sufficient; and in the case of Haynes, ex parte, (18 Wend. 614,) Mr. Justice Cowen says, on such a statute, with the high authorities to which I have referred, I think I should not hesitate in receiving the oath of mere belief.” The belief of the applicant was, in that case, regarded by those eminent judges sufficient to establish a fact to be proved to the satisfaction of the judge. The statute, in the present case, does not require any fact to be established by proof; it demands only that the judge shall be satisfied that there is good reason to believe the fact.

When the warrant against Halliday was issued, the officer had before him, as the basis on which his belief might be founded, not only the belief of the receiver, but the information on which the receiver’s belief was founded. The case as it existed in the mind of the receiver, was laid before the officer. Information constitutes, in many cases, ground of rational belief. In our daily and most important transactions we act on belief resting on that foundation only. The fact that this information had been given to the receiver was legally proved. The truth of the information was not proved; but I think the recorder might properly take notice of the fact that such information had been given, and if it operated on his judgment as it seemed to have affected the mind of the receiver, by creating a belief that Halliday was indebted to the corporation, it was all the act required. The act does not require the certainty of legal conclusion, as to the facts on which the application is grounded.

In regard to the proof on which the warrant, in cases like the present, is to issue, the statute differs entirely from that which authorizes attachments against absconding debtors; (2 R. S. 3, § 5;) and from that which authorizes attachments and warrants in justices’ courts. (2 R. S. 229, § 19 ; Laws of 1831, ch. 300, § 35.) In those cases the facts and circumstances to establish the grounds on which the application is made must be stated and proved. Such facts are made the only evidence on which the magistrate can act, and the belief of the applicant as one of the ingredients of proof is excluded. It differs also from that part of the act to abolish imprisonment for debt, which authorizes warrants against fraudulent debtors. (Laws of 1831, ch. 300, §§ 3,4.) The party applying for a warrant undei that act must give evidence establishing one or more of the frauds specified in those sections, and facts must be shown to satisfy the judge that the fraud actually exists; and not merely to show there is reason to believe that it exists. The decisions, therefore, as to the proof required under these statutes, are not applicable to the present-case. The objects and consequences resulting from the granting of process under those statutes are entirely different from the object and purpose of the warrant in the present case. They are proceedings to obtain a judgment or decree. This is to obtain evidence. There he must controvert the allegation or pay the debt. Here he is discharged from the process on giving his testimony.

I am unable to perceive any good reason, independent of the statute, why the proof to compel Halliday to testify should be any stronger or more formal than that on a bill of discovery, or indeed than that on which an attachment is granted against an ordinary witness for non-attendance under a subpoena. Such a witness may be subpoenaed without any proof of his materiality, and is bound to attend; he is liable to a penalty of fifty dollars for non-attendance. (2 R. S. 400, § 43.) An attachment issues against him on proof of his having been served with a subpoena and of his failure to attend. (Id. 441.) And where he is summoned to appear before any judge or officer to give testimony or have his deposition taken, such judge or officer, on his failure to attend, and on proof of service of the summons and of such failure, is required to issue his warrant to bring him before the officer to be examined; and for refusing to be examined when brought before the officer, the witness is committed to jail until he submits. No proof of the materiality of his testimony, or of the necessity of taking it, is required.

The statute, however, under which the warrant issued in this case, must govern. But if there be any doubt about its meaning, as to the proof required to obtain the warrant, it should receive that construction which is most in conformity with proceedings having the like nature and object. I am satisfied that the petition and warrant were in all respects legal. They constituted a valid defence to the action brought by Hal liday againt those who acted under them.

But it seems to be supposed that the plaintiff is, nevertheless, entitled to judgment, on the ground that Noble, by his demurrer to the plaintiff’s replication to his second plea, admitted on the record that Noble did not show to the recorder good reason to believe that Halliday was indebted to the corporation,” &c.

For the purpose of understanding the force of this objection, it is necessary to make a brief statement of the pleadings be-tween Halliday and Noble.

1. Halliday declared against Noble for an assault and battery, and false imprisonment. 2. Noble pleaded a justification under the warrant issued by the recorder of New-York, setting it forth in substance. 3. Halliday replied, setting forth at full length Noble’s petition to the recorder for the warrant, and concluded his replication with a traverse denying that Noble had shown, by his own oath, to the satisfaction of the recorder, that there was good reason to believe that the plaintiff, Halliday, was indebted to the corporation, or had its property in his possession.” To this replication Noble demurred, and Halliday joined in demurrer.

It is now contended that by this demurrer Noble admitted that he did not show on his oath, to the satisfaction of the recorder, that Halliday was so indebted, <fcc. But this is a mistake. Halliday’s replication is bad, because it puts his case upon a supposed defect in the petition, which defect does not exist. The petition for the warrant was good; and the plaintiff, Halliday, by setting it forth in his replication, showed that Noble had made all the proof necessary to entitle him to the warrant from the recorder. The traverse by Halliday was repugnant to the previous part of the replication. It denied what he had just previously shown was true, to wit, that Noble had made the necessary proof to obtain the warrant. Noble was right in demurring. Halliday had shown in his replication all that was necessary to Noble’s defence. If the traverse was not a contradiction of the matters of fact previously stated in the replication, it was nothing but a denial of the legal effect of the petition for the warrant. This was a question of law, and not traversable. It is a familiar principle that a demurrer confesses nothing except that which is well pleaded.

The cases of Livingston and Lamberson are governed by the same principles which are applicable to that of Mr. Noble. They are alike in all those respects in which the sufficiency of the defence is questioned.

The special pleas would have been bad on special demurrer, on the ground that each attempts, toy the averment that the acts mentioned in it are the several trespasses mentioned in the declaration,” &c. to make that an answer to all the counts which is in fact an answer to one count only. But by replying, the plaintiff has lost the benefit of that objection. (1 Ch. Pl. 450, 559, 7th Am. ed.; 7th Lond. ed. 429, 553 : 23 Wend. 488; Arch. N. P. 497, Lond. ed. of 1845.)

On the whole, the defence set up by the defendants under the recorder’s warrant, appears to be a good one; and to have been substantially well pleaded.

The judgment of the superior court was not erroneous. That of the supreme court should be reversed.

Jewett, C. J., and Gardiner, J., also delivered opinions in favor of reversing the judgment on similar grounds.

Bronson, J.

(dissenting.) I cannot agree in the result to which a majority of my brethren have arrived. This is not merely a question about the examination of a witness. It is a question of personal liberty. The plaintiff has been arrested; and, as I think, without lawful authority. The necessary facts were to be shown, to the satisfaction of the officer, by the oath of the receiver, or other competent proof.” (2 R. S. 43, § 12.) Information and belief that a man owes a particular debt, or that he has money or property in his hands belonging to another, are no proof whatever of the fact: especially where as in this case, the deponent tells who gave him the information, and assigns no reason for not producing the affidavit of his informant. The recorder had no right to be satisfied without some proof; and there was none at all.

I do not doubt that the defendants acted honestly, and without any improper intentions; but that is not enough where a man has been imprisoned w'thout authority.

Judgment reversed.