text:
    DAVID WOOLF, Plaintiff and Appellant, v. AARON JACOBS AND JULIUS G. SALHINGER, Defendants and Respondents.
    It is the duty of the court, at general term, to examine anew the questions of fact and law that arose at special term (upon a motion for a new trial that was granted on terms), in the consideration of an appeal from the order (Macy v. Wheeler, 80 N. 7. 281).
    And if, upon a full review of the facts, by the general term, it appears that they do not justify, or are not sufficient to sustain the order of the special term, the order should be reversed.
    Before McCunn, Freedman and Sedgwick, JJ.

      Decided May 13, 1872.
    Appeal from an order of the special term granting a new trial, on the grounds of newly discovered evidence, and on the. further grounds of falsehood, fraud and perjury.
    The facts are fully reviewed in the opinion of the court.

      Dubois Smith, for appellant.

      Christopher Fine, for respondents.
   By the Court.—Sedgwick, J.

It is the duty of the general term to examine anew the questions of fact and law that arose upon the motion for a new trial, and which were granted subject to certain conditions, at the special term (Macy v. Wheeler, 30 N. Y. 231).

Judgment in this action was entered June 11, 1869. A new trial was asked on the ground of newly discovered evidence, and on the further ground of falsehood, fraud and perjury. The motion was made on an order to show cause, granted August 17, 1870, upon affidavits sworn to on and about August 15, 1870. Proceedings supplementary to execution, for the examination of the defendants, were began May 30, 1870. These fell through, and others were had in July, 1870, on which adjournments were had until the middle of the next August, when this motion was made.

The affidavit of the defendant, Aaron Jacobs, states that he had no information,, of the facts upon which the motion was based until March 13, 1870. He delayed making the motion until August. This delay is not excused ; and, when considered in connection with the facts that will hereafter be examined, and that "in the intervening time supplementary proceedings were begun against him, was itself cause for a denial of the motion.

In main, the facts on which a new trial was asked are stated in the affidavit of Moses Kelson. In the present action, an attachment had been levied upon individual property of each of the defendants. The amount of Jacobs’ property levied upon was about eight hundred dollars in value, • and of Salhinger's, about six thousand dollars.

Kelson became a surety on an undertaking for the release of Salhinger’s property from the attachment. The present plaintiff assigned to Mr. Berry the judgment and the cause of action on the undertaking. The judgment being entered June 11, 1869, then an action in the month of July, 1869, was begun by Berry against Moses Kelson, on the undertaking. In such action, an attachment was issued against Kelson. It will not be necessary, and it would take too much time, to point to all the inferences to be drawn in this case. Most of them are suggested by a bare statement of the facts. Kelson’s affidavit avers that in April, 1868, defendant, Salhinger, asked him to become security on the undertaking to release Salhinger’s goods from the attachment in this action. At first, Kelson declined, but was called upon by the plaintiff, Woolf, and he asked Nelson to sign the undertaking. Salhinger was brother-in-law to Woolf. Nelson asked Woolf what the suit and attachment meant. Woolf said that Nelson need not be alarmed, and would run no risk in signing; that the attachment was procured only to force Jacobs to release a judgment which the present defendants had obtained against Woolf, which had been assigned to Jacobs, and on which Jacobs had issued an execution against Woolf’s real estate in Sullivan county; that he, Woolf, to protect himself, had brought this action. Woolf then further stated, according to Nelson’s affidavit, with great minuteness—for instance, the minuteness a lawyer would use in pleading in its length and breadth and consequences, a tort committed by a defendant—the fraud, he, Woolf, had begun and intended to accomplish in this action. The substance was that Woolf had no cause of action against the defendants. ¿The affidavit alleges that W oolf, among other things, said that he, “the said Woolf, was going to charge that the boxes or trunks which he had sent to them, with articles for his own use and accommodation, contained merchandise for them, the said defendants, and that they agreed to sell such merchandise for him ; but that, in fact, he never had shipped or sent to said defendants any goods or merchandise, and that they had never received any goods or merchandise from him, or promised to sell any for him ; but that he had commenced a suit for such made-up claim, and had sworn out an attachment against the defendants under the mere pretense that they were about to dispose of their property to defraud creditors, and that under such attachment he had taken the goods of the defendant for goods, which he claimed, belonged to the defendants;” that he knew this would force an immediate settlement with Jacobs; that this action would never be tried, and that Nelson could safely sign the undertaking for Salhinger, and he would never hear anything more about the action.

The property owned by Jacobs, that had been attached, was about, in value, eight hundred dollars ; of Salhinger’s, six thousand dollars. This is stated again to bring it in connection with Woolf’s alleged conversation. But it is impossible, within the limits made for this decision, to disentangle such a fangled mass of cobweb.

Kelson, although he has thus been clearly, explicitly and deliberately put in possession of this scheme of fraud and perjury, seems, by the general effect of his affidavit, not to have appreciated it, and he directly says, in an earlier part of his affidavit, that he had become security on the undertaking “on an attachment sworn out, and as deponent verily believes falsely sworn but, by the said plaintiff, against the said defendants, on the, as the deponent now verily believes, false and fraudulent charge that the said defendants were about to dispose of their property to defraud creditors.”

The affidavit goes on to state, that on having this talk, Woolf asked Kelson to go with him to his lawyer, ‘‘ saying that deponent would then learn the facts to be as he, said Woolf, stated them to deponent.” That is, in substance, that if he, Kelson, would not believe from Woolf’s own statement what a rascal he was, his counsel would tell him facts that would convince him. By the affidavit the lawyer had not the slightest hesitation in demonstrating Woolf’s rascality, and admitting his equal depravity, and that too, in the presence of another witness, Gustave Kelson, who had been taken there by Moses Kelson. Gustave Kelson is not stated to have been called there in the interest of anybody, or for any special purpose. Woolf and bis counsel had no fear of him, for “the said Woolf repeated to this deponent in the presence of his said attorney, Mr. Smith, everything that is above stated, and that the said Mr. Smith affirmed the truth thereof, but said that his expenses and the sheriff’s expenses, amounting to five hundred dollars, on the said attachment against the said defendants, on which Salhinger’s goods had been taken, must be paid before the goods could be released, and that if that money - was paid to him the goods would be released,” and the action would never be carried any further; that Nelson could safely sign the undertaking, and would run no risk; that the said Woolf only wanted to use the action at that time for the purpose of compelling the defendant, Aaron Jacobs, to release Woolf from the judgment of four thousand eight hundred and seventy-five dollars.

It is also presented by the affidavit for our belief, that all this was said in the further hearing and presence of Mrs. Woolf, the wife of the plaintiff, and sister of Salhinger, and further, that she, before the lawyer, and the two Nelsons, “upbraided her husband for bringing said action, and for falsely swearing out the said attachment.” She never, however, seems to have tried to stop the wrong she reproached her husband with, by conveying information of it, and the means of proving it, to her brother. This seems to have led Moses Nelson to suspect something was wrong, and he believed what they said, for he swears that he, “ believing the statements of said plaintiff and his said wife and attorney, signed the said undertaking,” and this deponent also, then and there, and at the request of the said plaintiff, and on'his promise to refund the same, did pay to bis, said plaintiff’s, said attorney, Mr. Smith, the sum of five hundred dollars, and was then again informed that that would be the last, he, this deponent would ever hear of said action.”

The plaintiff must have had remarkable influence over Moses Nelson. He had refused to sign the undertaking at Salhinger’s own request, yet he submitted to the force of the considerations' presented by Kelson; that he, Woolf, had brought the action in fraud, and sustained it by perjury, and as it could come to nothing, he, Kelson, had but become liable in the sum of five thousand dollars, and besides lend him, Woolf, in cash, five hundred dollars.

At the end of the affidavit, one sentence is added as a subject which, indeed, called for explanation, and this sentence discredits all the rest. It is that this deponent never informed the defendants hereof “until within the last few months,” that is, from April, 1868, to March, 1870. Kot only was he moved by good nature, or something better, to at once take very little trouble to seek, out Jacob or Salhinger, or to send either a message, to let them know how things stood, but he did not do so much, even, to protect himself against his contingent liability on the undertaking. Woolfi s statements did not create any surprise in him, for he did not, it seems, remonstrate with Woolf, or express any sympathy with Mrs. Woolf’s sound feeling on the subject. Perhaps it is more remarkable that he never tried to get his five hundred dollars back from any one.

But the affidavit states that, supposing the action had been abandoned, he gave the same no attention until after judgment was entered, and when, in the next month of July, 1869, an action was brought against himself ón the undertaking by Mr. Berry. His answer in that action will be hereafter referred to. Even this did not cause him to communicate his knowledge to Jacobs or Salhinger. After this time, he says he several times reminded Woolf of what he had told him about having no claim, &c., on which occasions Woolf said he was sorry he ever commenced the action, but he was compelled to go on.by his attorney, and to swear to the claim and have his children do so. Besides, at various times after the signing of the undertaking, Woolf had asked Nelson to intercede with Jacobs, to have him release Woolf from the judgment against him, “but that this deponent, not being intimate or on friendly terms with said Jacobs, refused to have anything to say to him.” And he says he never did see Jacobs even after the action was brought against himself, although clearly, it was a matter of great interest to him that Jacobs or Salhinger should know what would suffice to prevent judgment being had against them or to set it aside if obtained.

Nelson further swears that Woolf made the original statements to him at his place of business in Delancystreetin the presence of Gustave Nelson, Joshua Singer, and Frank Oopper. Woolf did not hesitate to admit and describe with great clearness his villainy before these three.

As might have been anticipated, Nelson’s answer in Berry against himself is the antipodes of his affidavit. In that answer first he said that Woolf was the real party in interest. He then “ admits that at the solicitation of the said Julius G. Salhinger” “he did, under the circumstances hereinafter stated,” execute the undertaking.

These circumstances, as afterwards stated, do not include, and they are not consistent with, those stated in his affidavit. The answer proceeds to allege that he was induced to sign the undertaking by Woolf’s representations to him “that the same was obligatory only on him, the said defendant, for the due appearance of the said Aaron Jacobs and Julius G. Salhinger in the said action,” and that, confiding in such representations, he executed the undertaking. The answer immediately goes on to say that the action ought not to be maintained, because that the said Julius G. Salhinger, colluding with Woolf and Woolf’s agent, did pay to Woolf’s agent “the sum of five hundred dollars to procure him to accept, pass and receive the said undertaking.” And thereupon the agent of the said plaintiff’s “assignor” (Woolf), “to secure the payment of the said sum of five hundred dollars to be paid to him by said Salhinger, did, with the knowledge and assent ; of the said plaintiff’s assignor, induce this defendant to execute the said alleged undertaking, knowingly, &c., represented to him, the said defendant,” that he would become liable on the undertaking only for the personal appearance of Jacobs and Salhinger, and these representations induced him to sign the undertaking; “and thereupon the said Salhinger paid to the agent of the said plaintiff’s assignor the said sum of five hundred dollars.” .

One of the concluding averments is that Woolf had received from Jacobs and Salhinger one thousand one hundred dollars on account of the undertaking. This furnishes another occasion to point to the incredible assertion of Nelson, that the circumstances contained in the affidavit being true, he never sought Jacobs or Salhinger, even in his own interest, until a few months before August 15,-1870. x

A statement of the contents of this answer is sufficient. It would be a waste of time to comment on them. The disagreeable details of this case would not have had the attention that has been given to them, if the court below had not taken a view from a different position, and it is proper to justify at length the reversal of the order appealed from. The unusually rigorous conditions imposed upon granting the order probably indicates the view of the merits of the case held by the learned judge who made it.

Enough has been said to show that the motion for a new trial should have been denied.

It is not important to look, except generally, at the further affidavits presented in support of the motion. Three of these affidavits are by- persons in whose presence and hearing Woolf was alleged by Nelson to have unfolded with much detail his actual and intended fraud and perjury.

Another of the affidavits alleges that Woolf tried to suborn the deponent to swear, falsely in this action, Woolf at the same time stating with great exactness the nature of the fraud in the same terms as are set out in the other affidavits. Another affidavit, signed by one who makes his mark, states that he was called upon by Woolf, who, as to all the other persons making affidavits, described to him with much care what the fraud was, and why and how he undertook it, and then requested him to become his surety on the undertaking to procure the attachment. He declined so to become, and then Woolf consulted him as to whether he thought Mr. Bernstein would if he paid him for his trouble. Woolf went out and brought Mr. Solomon Bernstein to this deponent’s store, and stated to him all that he had stated to deponent. Mr. Bernstein said he disapproved of any such proceedings, and would not become security. Mr. Solomon Bernstein, who gives no residence in his affidavit, says in it that he has read the foregoing affidavit, and that its statements are true. Lastly, as if to make assurance doubly sure, Mrs. Fannie Nelson, wife of Moses Nelson, swears that she was at her husband’s store in Delancy-street at the interview between Woolf and her husband, at which, by the other affidavits, it is said that Gustave- Nelson, Joshua Singer, and Frank Coffer were present, and she says she heard Woolf say all her husband swears he heard him say. Mrs. Nelson had not been named by any one else as being present on this occasion.

Mrs. Nelson was the eighth witness who, in April, 1868, knew, from Woolf himself circumstantially the fraud he meant to commit against Salhinger, his brother-in-law, and Jacobs. Yet from that time until March, 1870, at the earliest, no one of these witnesses had conscience enough, or kindness enough, to (in some way) let the defendants learn the facts, nor had chance taken some rumors of the facts to the defendants. Unless the eight stopped their mouths tighter than did ever any other eight men in possession of a secret and a scandal, and without a duty to keep still, but with a duty to speak out, in the course of these two years, hundreds would have known all about it, and the eight would not have reappeared for the first time and altogether, just when supplement tary proceedings had reached an actual point.

These affidavits have the effect of increasing the original improbability of Moses Nelson’s statement, until it gets the strength of a moral demonstration that the testimony is untrue.

It would be a waste of time to look at” the opposing affidavits and papers, to see what additional reasons they give for discrediting the affidavits in support of the motion.

It is to be hoped that this is an isolated case of the kind. It cannot be believed that there are numbers or groups of men in our society who are willing to face the day, in a court, and by agreement to give as their oaths false testimony that has not to support it even plausibility. But it does not need to be repeated to remind courts that the law should be sternly enforced against such combinations, whether they are for plaintiffs or for defendants.

These were technical grounds urged on the argument both for and against reversal of the order below. This is a case which should be decided on the merits.

The order appealed from should be reversed, with costs.


source: Caselaw Access Project

author: By the Court.—Curtis, J.

license: Public Domain

text:
    JOHN GRAY, Plaintiff and Appellant, v. THE SECOND AVENUE RAILROAD COMPANY, Defendant and Respondent.
    The law imposes the duty upon every one, when upon a public highway, to use reasonable care and diligence to avoid threatened danger, and to protect himself and property therefrom, and for this purpose he is bound tó use all his senses. When a driver, who has a carriage and horses in charge, directs his mind and senses to the perusal of a newspaper, and releases all hold upon and control over the horses, at a time when he is standing by or near a railroad track that is being cleared of snow by a snow-plow and sweeper, of the approach of which he is heedlessly regardless or unconscious, it presents a case wherein, if damage occurs to the horses and carriage, he is guilty of negligence, and cannot recover (Barker «. Savage, Gt. of App., not reported, see opinion of Grover, J.).
    Before McCunn and Curtis, JJ.

      Decided June 1, 1872.
    Appeal from a judgment.

      Mr. Putney, for appellant.

      Waldo Hutchins, for respondents.
   By the Court.—Curtis, J.

The plaintiff sues to recover damages for injuries to his horses and carriage, used under a license to carry passengers for hire.

On March 8, 1870, the team was standing about eight feet west of defendants’ railroad track, in Chat-ham-square, in the city of New York, in charge of a driver in plaintiff’s employment, with the door of the coach next to the track open. The driver was standing by the door ■ of the coach, not having the reins in his hands, and reading a newspaper. The defendants, for the purpose of keeping their track clear of snow, were in the habit of using a snow-plow, which threw the snow from the track the distance of from six to fifteen feet. This machine made considerable noise, and was visible some two hundred feet from where plaintiff’s team was standing, as it approached. As it passed by the plaintiff’s carriage, it frightened the horses, and threw mud into the open door of the carriage. The driver did not discover its approach until then. One of the horses sustained an injury in its flight, and the carriage was broken. The blue cloth lining of the carriage was stained with mud.

The law imposes the duty upon every one, when on a public thoroughfare, to use reasonable care, and for this purpose to use their senses. When a driver de- - liberately directs his mind, eyes and ears to the perusal of a newspaper, releases all hold upon the horses under his charge' and attached to his vehicle, and that, too, when standing unfastened alongside of a railroad track that is being cleared of snow by a plow, of the approach of which he is heedlessly regardless and unconscious, it would seem to furnish strong ground for his being nonsuited in an action brought to recover damages (Barker v. Savage, Ct. of App., not reported, see opinion, Grover, J.).

In view of the negligence on the part of the driver contributing to the' accident, and which the most ordinary care and watchfulness on his part might have i avoided, the court properly refused to submit to the jury all claim of the plaintiffs for damages, by reason of the injury to the horses, and the breaking of the' carriage, but submitted to the jury the question whether the damage done to the inside of plaintiff’s coach was done by reason of the defendants’ negligence, and instructed them if it was, the plaintiff was entitled to recover the amount of such damage. It is not easy to see why the same principle will not apply to this claim as to the other.

It went to the jury, who found negligence, and assessed the plaintiff’s damages therefor at six cents. The plaintiff testified he thought the damage done inside of the carriage was about eighty dollars. His witness, a carriage-maker, testified, that by reason "of its being stained, to replace it with a new lining would cost not less than fifty or sixty dollars. But as it appeared that the lining was only stained, and had never been replaced, but was used as it was, the jury did not assess damages based on the cost of a new lining, but for a trivial amount, possibly their estimate of the expense of cleaning the lining. However it may be, there does not appear to be any just cause for disturbing the verdict of the jury. Upon looking through the case, it is apparent that even in the event óf a new trial being granted, it would be a most favorable view for the plaintiff if the court did not dismiss his complaint on the ground of his negligence.

The judgment appealed from, and the order denying plaintiff’s motion for a new trial, should be affirmed.


text:
    HEDWIG HIRSCHSOHN, Plaintiff and Respondent, v. THE HAMBURGH AMERICAN PACKET COMPANY, Defendants and Appellants.
    The law raises an implied contract on the part of carriers of passengers, to safely transport and deliver to their passengers their baggage, the same being such as travelers under like circumstances carry with them for their comfort and convenience. In the case of a steerage passenger on a vessel bound to provide her bedding for the voyage, that bedding constitutes a part of her ordinary baggage, that under this rule the passenger is justified and protected in carrying, and for which the carriers must respond and pay for if lost.
    Before Barbour, Ch. J., and McCunn and Curtis, JJ.

      Decided June 1, 1872.
    Appeal from a judgment.

      A. A. Redfield, for appellants.

      Julius Leipman, for respondent.
   By the Court.—Curtis, J.

This action is brought to recover the value of certain baggage claimed to have been delivered on August 17, 1869, to the defendants, at their warehouse in the city of Hamburgh, to be transported to New York on board the steamship Saxonia. The baggage lost consisted of a linen case containing bedding, a large sack and two small ones, and three pieces of cloth, none exceeding three yards and a half in length. The delivery to the defendants at Hamburgh of the linen case was proved, and on the arrival of the vessel in New York it was missing. This case was not included in a receipt that was given, plaintiff for other baggage at Hamburgh contained in a box.

The plaintiff testified as to the value of the articles lost, the pieces of cloth and clothing from her own knowledge as a dressmaker, and the jury were enabled to arrive at the value of the bedding and linen case from her evidence of the value of the feathers, linen, cloth, and making up.

The defendants objected to the plaintiff showing the contents of the case of bedding, and claimed that if she was entitled to recover for the bedding she was not entitled to recover for the articles of wearing apparel, which, they said, were secreted therein.

I think the court properly overruled these objections. It was the plaintiff’s right to prove the contents of the case to establish her loss, and there is no evidence that the articles of clothing were placed there with any other intent than for the ordinary convenience of transportation. They were of small value, as well as the pieces of stuffs for the plaintiff’s dress. The defendants, if they had wished to set this up as a defense, should have had the complaint made more definite and certain, and then interposed it.

The defendants objected, that there was no contract proved for the carriage or delivery of this package, and excepted to the ruling of the court. There is not much force in this exception, for it seems to be well settled that the law raises an implied contract on the part of carriers, like the defendants, of passengers, that their baggage shall be safely transported and delivered to them, the same being such as a traveler ordinarily carries with him for his personal convenience (Angel on Common Carriers, § 115). The plaintiff was a steerage passenger, and as such was required to supply her own bedding by the defendants on the voyage, and there is a manifest propriety that bedding should be considered a part of such baggage, under these circumstances, as the law protects a passenger in-carrying and gives a right to recover for if lost.

The defendants objected that there was no competent evidence of value, that the plaintiff was not an expert, and only knew their value from their cost in Germany. The plaintiff was a dressmaker, and apparently knew the value of clothing and of materials for bedding. Her testimony furnished proof sufficient for the jury to arrive at an estimate of the value of the missing property of the plaintiff, and which the verdict shows was not an unjust one. There is no reason for setting aside the verdict as against evidence. On the contrary, this appears to be a. just demand, and there is no appearance of fraud, or of a disposition to recover more than the fair value of baggage misplaced or lost by the defendants. The latter did not contest the values put upon the respective articles by the plaintiff by. introducing any evidence to that effect.

For these reasons, it seems to me that the judgment and order denying a motion for a new trial should be affirmed, with costs.


text:
    GEORGE M. CHAPMAN, Plaintiff and Appellant, v. JAMES O’BRIEN and Others, Defendants and Respondents.
    In cases of alleged fraudulent transfer to avoid process, the papers, although correct on their face, are not conclusive. Testimony impeaching their validity and effect can be given, of almost any kind not clearly irrelevant, for the reason that the defrauded party oftentimes depends upon the proofs of many facts and circumstances . which together show the mala fieles of the transaction, yet, separately, might be deemed immaterial.
    When a party by Ms words or acts designedly induces another to believe in the existence of a certain state or condition of things or circumstances, and induces him to act in that belief, the party so inducing him is estopped from alleging or proving a different state of things and circumstances from that he had induced the party to believe in by his statements or acts.
    An ordinary illustration of this rule is where a sheriff, seeking property of a defendant to levy his execution upon, is informed by • another party that certain property pointed out by him belongs to the defendant, and in consequence' of that statement the sheriff levies upon the same. The party making such a statement is estopped from afterwards claiming that property as his own, and proving that he owned it at the time he made the statement, in order to recover its value from the sheriff.
    The existence of this rule is necessary for the prevention of fraud and wrong and lies at the very basis of society, and a public officer has to rely upon the protection afforded him by this rule.
    Before Barbour, Ch. J., McCunn and Curtis, JJ.

      Decided June 1, 1872.

      Mr. Paine, for appellant.

      Mr. Vanderpoel, for respondent.
   By the Court.—Curtis, J.

This is an action for the conversion of personal property, brought against the sheriff, his deputy and the indemnitors, on a levy under execution issued by the defendant, Douglas, against one William R. Ellis. The personal property consisted of ribbons and ruffles. The plaintiff claimed to be the owner of the former as manufacturer, and of the latter as purchaser, under a bill of sale, dated January 1, 1868. The defendants denied the seizure of a large part of the property, and, as to the remainder of it, justified under the executions and precept issued in the actions between Douglass and Ellis,, and averred property in Ellis. The judgments against Ellis were recovered January 23, 1868, and executions issued the same day.

There was a verdict for the defendantsand the plaintiff moved on a case and affidavits for a new trial on the merits, and on the ground of newly discovered evidence.

The plaintiff and Ellis occupied the" same room in Chambers-street, where these goods were exposed for sale, and the same buiidingin Thirty-third-street, where they were manufactured. The plaintiff claimed to have purchased the rufflings of Ellis, taking a bill of sale of them about January 1, 1868, and that the consideration of the sale was about two thousand nine hundred dollars loaned on call by him to Ellis, October 2, 1866. Entries of this loan and sale did not appear in Ellis’s books. The plaintiff testified that he would not say the 'bill of sale was given the exact day it bears date. The plaintiff also testified that the ribbons sued for by him were not removed by the sheriff, but were left at the store in Chambers-street, and that he had seen the boxes containing them about two weeks previous to the trial.

The plaintiff, and other witnesses, testified that at the time the deputy went to the store in Chambers-street with the execution, the plaintiff pointed out the goods in suit to him, and told him not to levy on them as they were his property.

The defendants called Ellis’s clerk, and other wit-' nesses, who testified that the rufflings claimed by plaintiff to have been bought by Ellis were not removed from the place occupied by them prior to the alleged sale, and that Ellis continued selling them as usual.

The deputy sheriff, and other witnesses, testified that at the time of the levy the plaintiff pointed out to the deputy the goods levied on, and said those were the goods of Ellis.

There was conflicting evidence, also, in respect to whether the keeper took the keys of the store at night or Ellis’s clerk. Mr. Woodbury, the partner of Ellis, testified that he never heard of any sale to the plaintiff by Ellis, until the plaintiff told him of it three or four weeks before the trial, nor did he ever hear of the loan by plaintiff to Ellis of two thousand nine hundred dollars, and that in the month of January he was at the store perhaps every day. The plaintiff excepted to the questions eliciting the evidence.

One of the controverted points in the case was whether the bill of sale was given before or after the levy, or when it bore date, and if it was fraudulent.

In cases of fraudulent transfer to avoid process, the papers are usually correct on their face, but the law goes beyond this, and allows testimony that is not clearly irrelevant, for the reason that it oftentimes occurs that the defrauded party can only establish Ms claim for redress by the proof of various circumstances, perhaps immaterial in themselves individually, but, when considered as a whole, proving the malafldes of the transaction (Castle v. Bullard, 33 How. U. S. 187; Phinney v. Holt, 50 Maine, 575-6.

Moulton, the landlord of the premises in Chambers-street, testified that there were ribbons there yet, and that two weeks previously, when he called on the plaintiff to see about collecting his account against Ellis, the plaintiff said the ribbons were his. The defendants excepted to his testifying that there were ribbons there, but this testimony was simply introductory to his contradiction of the plaintiff’s previous testimony, during the trial, that he had made no such statement to him. I see no force in this exception.

The court charged the jury that if they believed that the plaintiff pointed out the property to the deputy as belonging to Ellis, and made the declarations to the defendants as to ownership, as claimed by the defendant, it should operate as an estoppel upon him. To this the plaintiff excepted. It is clearly settled, that where a party by his words or acts designedly induces another to believe in the existence of a certain state of things, and to act on that belief, the party so inducing him is estopped from alleging or proving a different state of things from that which he has previously asserted. The existence of this rule of law is necessary for the prevention of fraud and wrongs, and' lies at the very basis of society (Frost v. Saratoga Mutual Ins. Co., 5 Denio, 154; Dezell v. Odell, 3 Hill, 216; Pickard v. Sears, 6 Ad. & E. 469). The court was right in its charge to the jury in this respect. A public officer constantly has to rely upon the protection afforded him by this rule.

The plaintiff also excepts to that portion of the charge to the jury where the court instructs them that if the executions came to the hands of the sheriff before the sale by Ellis to Chapman, then they would hold the property.

The statute protects “ the title of any purchaser in good faith, of any goods or chattels acquired prior to the actual levy of an execution, without notice of such execution being issued ” (2 R. S. 366, § 17). A person to whom property is transferred by a judgment debtor in payment of a pre-existing debt, is, however, held to be not “a purchaser in good faith” (Ray v. Birdseye, 5 Denio, 619, 625). The property was sold to the plaintiff by Ellis in payment of an antecedent debt. He fails to protect his title by showing that he was a bona fide purchaser wtihin the meaning and intent of the statute, and the court correctly charged the jury on this point.

Neither do I think the plaintiff’s position, that the verdict was against evidence, and that a new trial should have been granted on motion, can be maintained.

The evidence was contradictory in some respects, but there is no apparent reason for disturbing the conclusions of the jury.

The motion for a new trial on the ground of newly discovered evidence, which it is claimed would show that the ribbons in question were detained by the deputy sheriff in Chambers street, when plaintiff’s car-man was removing Ms goods, and that the plaintiff did not know of the.fact until after the trial, was properly denied. The plaintiff testified that when he removed, he left the ribbons in Chambers street, and had seen the boxes containing them about two weeks before the trial. Moulton, the landlord, testified they were there, and that within two weeks of the trial, plaintiff told him they belonged to him. The evidence claimed to be newly discovered, is of a character that affords no sufficient ground for granting a new trial (Burnett v. Phalen, 4 Bosw. 622).

For these reasons I am led to the conclusion that the judgment appealed from, and the order denying a motion for a new trial, should be affirmed.


author: By the Court.—Barbour, Ch. J.

text:
    JOHN COURTNEY, Plaintiff and Appellant, v. FREDERICK BAKER, and others, Defendants and Respondents.
    What a person said at the time of an accident, of which he was the cause, which would tend to prove that the accident was caused by his carelessness, may be received in evidence to establish the fact of negligence, under the rule that it was a part of the res gestm.

    The only other question in this case was whether the evidence was sufficient to authorize a submission to, and a finding by, a jury, that the injury to the plaintiff was caused by the negligence or want of care of defendant’s servant while engaged in defendant’s employment. (See the statement in opinion of the court.) Held to be sufficient, and that the court below erred in dismissing the complaint.
    Before Barbour, Ch. J., and McCunn, and Curtis, JJ.

      Decided June 1, 1872.
    Appeal from a judgment.

      Samuel H. Randall, for appellant.

      James K. Hill, for respondent.
   By the Court.—Barbour, Ch. J.

This action was brought to recover ten thousand dollars damages for the breaking of plaintiff’s leg, and the permanent injury to his health by reason of the alleged negligence and unskillfulness of defendants, by their servant, in throwing on plaintiff a bale of cotton while he was engaged, on behalf of the owner or consignee, in receiving a quantity of cotton from defendants, who were proprietors of the Merchants’ Steamship Line, and which cotton was then being discharged and delivered by them. The complaint was dismissed at the trial, upon the closing of the plaintiff’s proofs, and the matter is brought here by an appeal from the judgment entered thereupon.

The only question presented by counsel upon the hearing is whether the evidence was sufficient to authorize a finding by the jury that the injury to the plaintiff was occasioned by the negligence or want of care of the defendants’ clerk while engaged in one of the acts of his employment as such clerk.

The evidence showed that just previous to, and at the time of the accident, the plaintiff was in the act of lifting a bale of cotton upon a cart, and was in a stooping position with one of his legs extended to the rear, and that, while in that position, a bale of cotton fell upon his extended leg and foot and broke the former; that the bale so falling was one of a row of cotton bales which were standing upon their ends behind or near the plaintiff, and that, immediately before the fall, the clerk was engaged in taking the marks of that row of bales. One of the witnesses testified as follows:

“ There was some of the cotton standing on its head and some lay down ; when Courtney got hurt there was a row of cotton on the lef fcffiand side of the bulkhead that ran parallel with West-street; he had his right foot out, going to heave the bale; I was in the center, and I saw Mr. Hand standing between two bales ; it looked to me as if he was looking for marks on the bale. He put his hand on the bale and the bale fell oyer.” “Mr. Hand” (the clerk) “put his hand on the bale and it went over ; it threw Mr. Courtney over.” “I saw Mr. Hand on the other side of the bale; my face was looking at him ; as far as I could judge, he was looking at the marks ; it looked to me as if he was looking for marks, and he threw the bale over that way.” The same witness was asked, “ What did Mr. Hand say at the moment of the accident ? ” The defendant objected to the question, but it was admitted as relating to the res gestee, and the witness answered, “ He said he was sorry; that it was carelessness on his part; he did not think of himself.”

Upon this evidence, which was wholly uncontradicted, we think the jury might properly have arrived at the conclusion that the handling of that standing bale by the clerk in such a manner as to cause it to fall upon the plaintiff was an act of negligence for which the defendant was responsible. The court erred, therefore, in dismissing the complaint.

The judgment should be reversed and a new trial granted, with costs.


author: Barbour, Ch. J.

text:
    ISAAC L. KIP and Another, Executors, &c., Plaintiffs and Appellants, v. JOSEPH MERWIN and Another, Defendants and Respondents.
    In an action upon a lease (to recover a quarter’s rent) that contained the following clause:

      " In case the premises leased shall be partially damaged by fire, but not rendered wholly untenantable, the same shall be repaired with all proper speed at the expense of the said parties of the first part; but in case the damage shall be so extensive as to render the premises untenant

      able, the rent shall be proportionally paid up to the time of such destruction, and shall from thenceforth cease until such time as the same shall liare been put in good repair. ” '

      Held, that this condition applied to the whole milding, and the use of it, as an entirety, and the building as an entirety must be proved to be untenantable.

      Untenantable defined as meaning “that the building was not fit for the use of an occupant,” 41 that it was not in suitable repair or condition for a tenant.”
    Before Barbour, Ch. J., McCunn and Curtis, JJ.

      Decided June 1, 1872.
    Appeal from a judgment.

      Livingston K. Miller, for appellants.

      W. Stanley, for respondents.
   Barbour, Ch. J.

This action was brought to recover a part of one quarter’s rent of a building, of which the defendants were the lessees, under a lease containing the following provision:—14 In case the premises leased shall be partially damaged by fire, but not rendered wholly untenantable, the same shall be repaired with all proper speed at the expense of the said parties of the first part; but in case the damage shall be so extensive as to render the premises untenantable, the rent shall be proportionably paid up to the time of such destruction, and shall from thenceforth cease until such time as the same shall have been put in good repair.” The answer alleged that a fire occurred upon the premises within the quarter in question which rendered the building untenantable, and claimed a rebatement from the rent for the time occupied in making the repairs. The only question for consideration here is, whether the evidence given: upon the trial was sufficient to justify the finding of the jury that the damage caused by the fire was so extensive as to render the premises untenantable.

The witnesses testified to the following facts :—The demised premises consisted of a four-story building, with a basement an.d sub-cellar; the first story, basement and sub-cellar were underlet by the defendant to Hotchkiss Brothers, dealers in Saratoga water; the second, third and fourth stories to Howell & Co., dealers in threads ; and the third and fourth stories were, by the latter firm, underlet to Stein, a hoop skirt manufacturer. The fire broke out in the third story, and burned á hole through the floor of that story, and the ceiling of the second story, about five feet in diameter, but extended little, if any, farther. The firemen, however, poured in a flood of water, and that, together with the fire itself, injured the building to such an extent that the cost of repairing it was seven hundred dollars. The mechanic who made the repairs said :— “Various parts of the building were damaged, .some more than others; the principal part of the damage was on the second floor, in the rear; there were about five feet of the ceiling and beams between that and the third floor burned through ; we had to plaster it pretty nearly all over, the ceiling and side walls, and to put in about five feet of new floor, two new beams, and three rear windows. After cutting away what was charred and injured by the fire, it left a clear opening of about five feet; there was no other part of the building burned; the other injury was by the water and smoke ; we had to kalsomine the walls and put on new ceiling and side walls on the third floor, and kalsomine the ceiling on the fourth floor. The roof was not interfered with at all, nor the fourth floor, except by smoke; on the third floor we put on an entire new ceiling, and put in three windows ; we kalsomined the first floor.” Another witness (Mr. Howell, the occupant of the second story,) testified that on the day succeeding the fire “the third floor was in a fearful condition, covered with smoke, water and rubbish, and entirely untenantable ; that part of the building was unfit for any one to stay in. I went to the floor below . . because I could not go into our loft. The rear part of the office was sopping wet, . . the walls were entirely wet; any one could see the water running down.” He also stated that the greater portion of his stock of thread, worth- ninety thousand dollars, was injured by the water, fire and debris, and he removed it from the premises.

Mr. Hollinshead testified : “Irepresent four insurance companies, at Ho. 6 Pine street. I have been a,n insurance agent about nineteen years in this city; I went to the premises in question the next morning after the fire. Howell & Colby had their goods insured in three of my companies, five thousand dollars in each. I got there in the morning about 9 or 10 o’clock, and found that a fire had occurred in what we term the second loft or third floor; there must have been a large quantity of water from what we saw running all over the premises ; the lower floor was occupied by persons selling soda water. The condition of the premises on the second floor was such that we immediately requested Howell & Colby to remove their goods, because the dampness and filthy condition of the place made every hour so much loss to us, being destructive to the goods. I did not go further up than the loft above; that was very much destroyed. I think there was no salvage of the goods there at all. I should judge the plastering had to come off from the dampness. The condition of the second floor was such that I should not have occupied it for any purpose at all; the walls were wet; the water thrown in above came down on the walls each side, and caused a great humidity of the atmosphere. They had to keep a fire going all the time, to make it bearable. On the first floor the water came down, and everything was apparently wet all around. ” Mr. Dawson, the occupant of the first floor, basement, and sub-cellar, said : On our floor, the, ceiling was replastered overhead, the office repapered, and the plastering in the office repaired. I remained there until the premises were put in order. I was in a very uncomfortable condition while there, after the fire; the floor was wet, and the walls wet for a long time afterwards. Our goods are not of a perishable nature by water or dampness ; they are very bulky and heavy to move. We had a large quantity of stock stored in the sub-cellar and basement, and we preferred to remain there, rather than to get another location. We preferred some personal discomfort rather than change places, considering the loss of business consequent on removal; it was known by our customers that that was our place of business.” Other evidence of a similar character was also given. It appeared, too, that the occupant of the first story, basement, and cellar, paid rent to the defendants for the entire quarter, but Howell & Co., did not, and there is no evidence whether the occupant of the third and fourth stories either paid rent or removed from the premises.

The question whether the sub-tenants, or any of them remained upon the premises and paid rent, or removed therefrom, is wholly unimportant, except in so far as the actual fact in that regard may tend to corroborate or discredit the statements and opinions of the witnesses touching the condition.of the building ; and that, of course, was a matter for the jury to consider and determine.

There can be. no doubt that the condition in the lease which exonerated the lessees from the payment of rent in case the building should become untenantable by reason of a fire, applied to the whole building, and the use of it, as an entirety ; for it was the whole building, as an entirety, that was the subject matter of the lease. If, then, the evidence presented to the jury,' as above, was sufficient to satisfy them, as reasonable men, that the building, considered as an entirety, was so injured by the fire as to have become for the time untenantable,—or, according to the very apt definition of Dr. Webster, if it was “ not fit for an occupant; not in suitable repair or condition for a. tenant,” the verdict cannot be disturbed.

The testimony shows, not that one or two rooms only were injured, or that- the damage to the building in so far as its use by a tenant was concerned, was so small as to bring it within the maxim de minimis non curat lex, but that all the principal stories, except the fourth, were injured by the fire, water, or debris, to such an extent as to be, for some time at least, in an unfit condition for occupáney and the proper transaction of business by a tenant. . The verdict, therefore, is fully sustained by the evidence; and, of course,, the judgment and order appealed from must be affirmed,, with costs.


author: By the Court.—Barbour,. Ch. J.

text:
    JOSEPH W. BURNHAM, Plaintiff and Respondent, v. CHARLES THURMAN and others, Defendants and Appellants.
    Upon the question of the value of the stock of a certain railroad company ai a certain time, when the same was sold, letters written by the president of the railroad in regard thereto, previous to the time of sale, are not admissible as evidence of the value of the stock at that time or any time, for it is mere hearsay evidence, nor was it admissible to prove that by this information, received by the plaintiff, he was.prompted to rescind the sale of the stock.

      The objections of defendants to this testimony being overruled, and the same received and exception taken,-—-Held, that the testimony cannot be deemed immaterial, and it cannot be held that it did not harm the defendants. That its reception after objection was error in the court below.
    Before Barbour, Ch. J., Monell and Freedman, JJ.

      Decided June 1, 1872.
    Appeal from a judgment.

      A. J. Vanderpoel, for appellants.

      Christopher Fine, for respondents.
   By the Court.—Barbour,. Ch. J.

This action was brought to recover twenty thousand dollars damages from the defendants, because of their alleged wrongful possession and detention of one hundred shares of the capital stock of a certain railway company in Rio de Janiero, Brazil.

The complaint charges that on or about November 11 and 14, 1868, the defendant, Thurman, in concert with, and procurement of, the other defendants, applied to the plaintiff and proposed to buy his stock, and at the same time, in answer to the plaintiff’s inquiries in that regard, falsely and fraudulently stated and represented to the latter that no news or tidings had been received from the company in Brazil, or any of its officers, other than such as had been received long before and was known to the plaintiff, and that it was wholly unknown whether the said road would or would not succeed, although, in fact, Thurman then knew that the company had suddenly become a great success, and that the defendants had, on the 9th of the same November, received a private telegram from the president of the company in Rio de Janiero, informing them of the great success of the company, and suggesting the purchase of all of its stock ; and that by means of such fraud and deceit, the plaintiff, being ignorant of the real facts, was induced to and did deliver his stock to the defendants, about thirty per cent., being less than a third of its value.

On the trial, the plaintiff, after giving evidence tending to prove the representations and their falsity, offered in evidence a letter, written to him by the president of the company at Bio, dated November 24, 1868, which stated that the'road was a great success, that its daily receipts were seven hundred and fifty dollars, and when fully completed, would be much more, and that he had been offered seventy dollars in gold for stock, but considered it worth more than double that as an investment for dividends. That letter was objected to by the defendants, and the case states, “ Objection overruled for the present, subject to be renewed by the defendants.” The letter was then read. No exception directly appears by the case to have been taken to that ruling, nor was the objection renewed or any motion made to strike out the evidence.

The plaintiff then next offered in evidence another letter to himself from the president, dated at Bio de Janiero, October 26, 1868, but not received until after the sale to the defendants, stating, in effect, that the road had proved a great success, that the receipts were four hundred and seventy dollars per day, and would be eight hundred or one thousand when fully opened, and that shareholders would receive back their original investments within a year, and large dividends thereafter. The case says, Same objection, same ruling, and exceptions.” The letter was then read in evidence.

It is not quite clear whether it may not properly be inferred that an exception was taken by the defendants to the admission of the letter first read in evidence. But that is not material, inasmuch as the letter of October 26 was written just previous to the sale, and was fully as objectionable as the other, and was objected to, admitted, and an exception to the ruling duly taken. The question, therefore, is, as to the admissibility of the October letter.

The counsel for the plaintiff now claims that the letter in question was not offered nor received as evidence of the facts therein contained, but only as evidence that certain information was received by the plaintiff, which prompted him to rescind the contract of sale, and that it was competent for that purpose, or, if not competent, its admission was immaterial, as it did not harm the defendants.

The letter, certainly, was not legally admissible as evidence that the road had suddenly become a great success, or was producing large receipts, nor to prove that the stock was worth much or any more than the purchase price at or subsequent to its transfer by the plaintiff to the defendants. For, it contained only the statement of a third person, not a privy in interest or otherwise with the parties to the action or either of them, so far as concerned the subject matter of this action, and must, therefore, be considered as mere hearsay. ¡Nor was it properly receivable for the purpose of proving that the plaintiff’s demand upon the defendants for the return of the stock was based upon the information conveyed to the plaintiff by such letter. For although it was incumbent upon the plaintiff to prove that the facts which entitled ¡him to the return of the stock were in existence when the demand was made, it was quite unnecessary and irrelevant for him to show what particular information upon the subject had then reached him. Assuming, then, as we may, that the letter was not properly receivable in evidence, the question remains whether its admission tended to the injury of the defendants upon the trial.

I As the case does not show that the application and effect of the letter as evidence were in any manner restricted or limited, it must be held to have been received and read as evidence, generally, in the canse. The jury, therefore, had a right to, and they probably did, consider it as the true statement of the actual condition- and income of the road at the time the letter was written, and also of its earnings and value, as founded upon the opinion of an expert, who, as the president of the company and employed in constructing and managing the road, might well be presumed -to be fully informed upon the subject, This evidence, then, was quite material; for the witnesses who testified upon the stand as to the value of the stock, showed so little knowledge upon the subject that the jury would have been justified in discrediting their conclusions. The error of the court in admitting the letter as evidence was, therefore, a material one ; and for that reason, and without considering here the further exceptions in the case, we think the judgment and order appealed from should be reversed with costs, and. a new trial granted.


author: By the Court.—Curtis, J. Barbour, Ch. J.

text:
    GILBERT GILES v. WILLIAM AUSTIN.
    I. Beargument at General Term, when not ordered.

    ¡H. Btjt a General Term order or judgment reversing a judgment below and dismissing the complaint, may be amended so as to order a new trial, instead of dismissing the complaint.

    1. See statement of case for a detail of the facts on which the court refused to order a reargument, but did order an amendment.
    Before Barbour, Ch. J., McCunn and Curtis, JJ.

      Decided June 1, 1872.
    Motion for a reargument, and if that should be refused, for a resettlement of a general term order, so that it shall grant a new trial instead of dismissing the complaint.

    The plaintiff is the tenant of the defendant under a lease for a term of years, where a right of re-entry is reserved for non-payment of taxes and assessments. The plaintiff for a long period omitted to pay taxes and assessments on the demised premises. The landlord brought ejectment against the plaintiff, to enforce the forfeiture. About twelve years of the term of the lease were yet unexpired. The rent reserved by the lease to the landlord was two thousand eight hundred dollars per annum, and the rent received by the lessee, who had improved the property at considerable expense, was about thirteen thousand dollars or fourteen thousand dollars per annum.
    The present suit was brought against the landlord, to restrain him from proceeding in his ejectment suit, and to obtain equitable relief from the forfeiture. It was referred, and upon the referee’s report there was a judgment for the plaintiff, relieving him from the forfeiture upon making certain payments of arrears, costs, allowances, &c. From this judgment the defendant appealed to the general term, and there was a decision made'thereupon reversing the judgment appealed from, and an order entered dismissing the complaint.
    The present application is made by the plaintiff upon affidavits, the papers on appeal, the opinion given on the decision, and the order entered thereon for a re-argument, and, if that is not granted, then for a resettlement and correction of the order on appeal, so as to grant a new trial instead of dismissing the complaint.
    The affidavits on the part of the plaintiff claim that of the two members of the court who were for a reversal, one placed it mainly upon the ground that the bringing of a suit in equity by the plaintiff for relief against the forfeiture, instead of seeking relief by motion for leave to file a supplemental answer, was in itself such, a breach of equity and good conscience as to deprive the plaintiff of any equitable right to relief against the forfeiture, and that there should be a reversal, not only, but also a dismissal of the complaint without ordering a new trial.
    It is further stated that this point in reference to plaintiff ’ s bringing a suit in equity, was not discussed or taken on the argument, that its consequences are serious, and that it has operated as a surprise to plaintiff’s counsel, and that they believe, upon a reargument, a different view of the question may be taken. Also that the concurring opinion put the case generally upon plaintiff’s laches and action, but said nothing in relation to dismissing the complaint without ordering a new trial, and that such order of dismissal was entered without any previous notice of settlement, or other notice to the plaintiff’s attorneys. That the question whether, in case of reversal, there should be a new trial or an absolute dismissal of the complaint, was.not discussed on the argument, it being expected on plaintiff’s part that if the judgment was not affirmed a new trial would be ordered, and that this is customary, and that in case of a new trial the case can be so changed by new evidence from its appearance upon the former trial as to induce the court to come to the conclusion that the forfeiture should be relieved against in this suit.
    It is further set up by the affidavits on the part of the plaintiff that his leasehold estate is exposed to jeopardy by the defendants neglecting to pay large assessments upon the demised premises, imposed before the granting of the lease, and for which they were sold by the corporation in September, 1871; and that plaintiff supposed that the time when he should pay the taxes concerned himself alone. Also that the course which was taken for obtaining relief against the forfeiture by a regular suit in equity, was not dictated or requested by the plaintiff, but was wholly the act of his counsel, who, considering the estimated value of the leasehold interest—some sixty thousand dollars— and the advanced years of the plaintiff, and its great importance to him, and the opinion of this court in Garner v. Hannah, 6 Duer 275, deemed it a just and necessary measure of precaution to thus present the claim, where there could be a regular trial, with full opportunities for exceptions and remedies on appeal, rather than by a summary application by a practice motion addressed to the discretion of the court.
    That plaintiff was guilty of no fault, unless it was in. passively following the advice of his counsel, which was according to their best judgment. That the plaintiff is a simple-minded man, and of very slender business capacity at his now advanced age, and that whatever may be regarded as censurable in his conduct in this affair has proceeded from no worse cause than weakness and folly in a man far advanced in years, and of such present condition as is alleged in the affidavits on plaintiff’s behalf.
    There were no affidavits read on the part of the defendant, the lessor.

      Joseph H. Choate, for plaintiff.

      Thomas B. Browning, for defendant.

       Note.—For principal case see Ante.

   By the Court.—Curtis, J.

The tendency of the administration of justice is to relieve from forfeitures. Equity has always sought to mitigate the harshness and severity of the common law. The undenied statements on which this application is addressed to the court, the magnitude of the forfeiture attempted to be enforced, the importance of the interests at stake, the relative characters, capacities, and intentions of the parties, and their respective claims to the equitable consideration of the court, are all matters that are presented in this application.

If, as it appears to be, this case was in part decided at the general term adversely to the plaintiff, upon a point not raised or discussed there, a question as to the equities of his mode of applying to the court for relief from the forfeiture ; then, it appears to me, that he should have an opportunity of presenting the additional evidence of his good faith and the equities of his position, as urged by this application. When a suitor of slender capacity, and advanced in years, seeks to be relieved from a most onerous forfeiture, upon such terms as to the court may seem equitable, and as it may impose, unless he has taken a position or performed acts, depriving himself of all claim to equitable consideration, the court will be disposed to hear his application and in all proper cases extend the relief prayed upon suitable terms.

The plaintiff sought relief by bill in equity, instead of by motion to set up his equities by a supplemental answer ; and as the question respecting the fairness and. propriety of his course in this respect was not raised or discussed at the general term, but was presented in its decision as a prominent ground for debarring him of his relief, and as he now applies upon verified statements that are uncontradicted, alleging that upon a new trial he can'show that he acted in good faith and fairness, and upon the advice of able counsel, and upon what they believed to be the settled practice of this court, it is but just and in accordance with equity that he should have such an opportunity. When he places himself in the hands of the court to be relieved of the heavy forfeiture consequent upon his errors, or his infirmities and mistakes, and upon their own terms as to what he shall be compelled in equity to do as a condition for this relief, he should have an opportunity by proofs and arguments to present his position, and protect it from a new and undiscussed difficulty.

There can be no injustice or wrong result to the defendant from this course. The court can relieve him from all loss that may occur from costs or delay, in case they relieve from the forfeiture.

There are substantial reasons why a reargument should not be ordered, and it is a sufficient one, that the plaintiff has a remedy by appeal; but the ordering of a new trial instead of dismissing the complaint after reversing the judgment, seems more in accordance with usage, and in this case under the circumstances shown, especially, a just and proper course to be pursued.

I think the order of the general term should be amended by granting a new trial, instead of dismissing the complaint.

Barbour, Ch. J.

(Concurring in denying the motion for a reargument, but dissenting from the decision on the motion 'to aménd.)—This is a motion for leave to reargue an appeal which was heard and determined at general term, some time since, by three judges, of whom only one is now sitting upon the hear- „ ing of this motion. Eo new fact is alleged to have been discovered, nor any important decision is claimed to have been overlooked. Indeed, 1 have been unable to find in the points or argument of the learned counsel who makes the motion, any reason in support of his client’s case which was not or ought not to have been presented to the court upon the hearing of the appeal. This motion, therefore, is simply, in effect, an appeal from a judicial decision of three judges, sitting at general term, to one only, of them, and two other judges of the same court, at a different general term ; and for that of other considerations, the motion should be denied. Even in appellate courts of dernier resort which are composed of the same judges at each succeeding term, motions for leave to reargue appeals-are seldom granted, and never unless for very strong reasons, suchas that a material fact has been overlooked or misconstrued by the court, or some recent authoritative decision, not cited upon the argument, has been found. If, then, courts of ultimate appellate jurisdiction, thus composed, are chary in regard to motions of this character, with still greater reason ought this court to refuse to entertain them, except, possibly, in extraordinary instances. For, aside from the general rule of all appellate courts, above adverted to, the granting by three of the six judges of -this court of a motion to reargue an appeal which had already been heard and judicially decided by a general term composed wholly or in part of other judges, would be not only discourteous in the extreme to those not then sitting, whose opinions are sought to be reviewed, but. unusual and highly indecorous. Indeed, if such a practice were to obtain and become general, the inconvenience resulting' from it, both to the court and its counsellors, would become unbearable. We had better adhere to the maxim stare decisis.

Besides, if the plaintiff is aggrieved by the final judgment which has been rendered against him at gen-, eral term, he has a full and perfect remedy without resorting to a motion like this. The court of appeals, it may safely be assumed, will reverse the judgment and award a new trial if that ought to be done.-

The motion should be denied, with costs.-


author: By the Court.—Sedgwick, J.

text:
    WILLIAM LIVINGSTON, Plaintiff and Respondent, v. THOMAS KEECH, Defendant and Appellant.
    Where a party calls himself as a witness and is examined in chief, the opposite party may go into the whole case on a cross-examination, and need not confine himself to a cross-examination on the matters that were the subject of the direct examination.
    A party to the action, examined as & witness, does not become the witness of the opposite party to that extent that the latter should not be permitted to ask leading questions of him in regard to matters that were not the subject of the cross-examination, and it is error in the court to rule in such case that the opposite party, by this course of examination, makes the party witness his witness in regard to those matters.
    It is the right of the opposite party in such a case (by rigid cross-examination, &c.), to search out every thing in the way of motive (using that word in a broad sense), that would affect the mind of the witness, and its emanations, on the trial.
    When part of the case-or defense is based upon the state of mind, at a certain time, of a party to the action, who becomes a witness on the trial, it is pertinent and proper that he should state (in answer to leading questions from the opposite party) what was his declara- ' tion as to his state of mind at a subsequent time, in reference to. a subject alleged by him to have induced that former state of mind which was essential to his cause of action.
    The subject of fraud and fraudulent representations, and actions based thereupon, considered and discussed in the light of many cases cited in the opinion of the court, and made applicable to this case.
    Before Barbour, Ch. J., Freedman and Sedgwick, JJ.

      Decided June 1, 1872.
    Appeal from a judgment.
    The facts in the case, and the points decided, fully appear in the opinion of the court.

      Mr. Frederick Smyth, for appellant.

      J. W. Fisher, attorney for respondent.

      Luther R. Marsh, of counsel.
   By the Court.—Sedgwick, J.

The motion by defendant’s counsel, to dismiss the complaint, was properly denied. Each of the grounds on which it was made involved a question of fact, and as to each enour evidence had been given to take the case to the j The position was not taken that there was an en. variance between the representations testified to am those alleged in the complaint. Therefore, such a position will not be now examined.

The defendant excepted to the admission by the court of testimony that the portion of the road mortgaged to secure the payment of the bonds in question had been sold in proceedings to foreclose the mortgage, and had sold for nine thousand dollárs. The reason given for the objection to the evidence was that the last transaction between the parties, in- reference to the bonds, was in March, 1868, and the testimony given related to a time, in 1869, which was too remote to make the price brought at the sale any evidence of value. The value of real estate is more permanent, perhaps, than- that of any other kind, certainly than most other kinds of property. The testimony gave a fact that was relevant to the material issue of the value of the bonds in 1868. There was no objection that this testimony proved by parol foreclosure proceedings, which could only be proved by a record or other written documents.

The declaration by the defendant, before the bonds were delivered by him to the plaintiff, that a coupon -which the latter noticed to be cut. from one of the bonds had been paid, was properly received in evidence.

The plaintiff was examined as a witness on his own behalf. On his own examination he said that, after this action was begun, he went to the office of the defendant’s attorney. His own attorney was expected to be there, but had failed to go. He there met defendant and his attorney, with whom he had a conversation respecting this litigation. Defendant’s counsel put questions to the plaintiff on his cross-examination as to whether he did not, in that conversation, state that he could not and would not swear to any false or fraudulent representation made by Mr. Keech to him in respect of the bonds; and further as to whether when, in that conversation, his attention was called to the statement in the complaint, that the “bonds were worthless, or nearly so, as the defendant well knew,” and' that he gave them with intent to defraud, he, the plaintiff, did not state that he could not and would, not swear to any such fact.

The plaintiff objecting to these questions, the court ruled that the plaintiff was the witness for the defendant on this point, and that the defendant must put a general question—that he might caH for what was said.

The rule in this State (1 Greenl. on Ev. § 445 ; Jackson v. Varick, 7 Cow. 242; Varick v. Johnson, 2 Wend. 201; Fulton Bank v. Stafford, 2 Id. 483; Bogert v. Bogert, 2 Edw. Ch. 403) is that when a witness is placed upon the stand and examined, even as to formal matters, that he is thereby made a witness for all purposes, and may be cross-examined in the whole case. The cases just cited declare this to be the rule where one party called as a witness a person who, by reason of interest, could not be called by the opposite side; yet it was held that this opposite side could go into the whole case on cross-examination, and not be confined to matters of direct examination. A fortiori must be the rule applied to cases when a party calls himself as a witness. Therefore, the plaintiff did not become, as to the subjects of the question, the witness of'the defendant.

Still, if the questions of the defendant were improper, the ruling upon them must be sustained, even if the court here do not agree with the court below as to the reason of excluding them on account of this form. The court below said, in effect, that questions might be put on the same subjects if they were general in form, that is, not leading.

Gbeexleab, in section 435, states it to be the law that leading questions are to be permitted even on a direct examination, namely, where the witness appears to be hostile to the'party producing him, or in the interest of the other side. When the witness stands in a situation which of necessity makes him adverse to the party calling him, as for example, on the trial of an issue out of chancery, with power to the plaintiff to examine the defendant himself as a witness, he may be cross-examined as a matter of right. It may be that these are general rules which are not to be uniformly and rigidly applied in all cases and under all conditions. It may be that a judge may limit action, under these rules, to their use and not their abuse. But they are general rules, and should not- be suspended unless there are exceptional circumstances in the case which call for their suspension. There is another general rule, that it is within the discretion of the court to allow or forbid leading questions. In this case, in proceeding under these general rules, the defendant’s right to ask a leading question should have been recognized, and he should have been allowed to put it, unless there then appeared something in' the case which called for the exercise of discretion, in depriving him of that right, beyond those bare circumstances which gave him that general right. Perhaps it would be best that such special facts should be stated in the objection to, or the ruling on, the objection to such a question. This is not here insisted upon; something should present itself in the case which calls for the exercise of discretion, and which indicates that the ruling was made in the exercise of that discretion (Russell v. Conn, 20 N. Y. 81; Lanergan v. People, 39 N. Y. 39). The ground of the ruling here appears to have been that on those points the plaintiff was the defendant’s witness. This was incorrect, as has been just shown. Nothing appears in the case which called upon the court to apply any other than the general rule, that on a cross-examination leading questions may be put.

After all, it must be determined that the evidence sought, if given, would have been material. If immaterial, the defendant has not been deprived of any substantial right.

Here it must be stated that the questions were proper under ordinary cross-examination, if they were material, in respect of the witness’s credibility and recollection. He had sustained his action by swearing that the defendant had made certain oral representations to him, and these he maintained in the complaint, and by bringing his action to trial, were false and fraudulent. It was a proper position for the defendant to take that it was possible for the witness to give color to these words, or infuse into them a significance not intended by the defendant, by transposing the sentences or changing a word, or even by giving unduly, perhaps unconsciously, emphasis to a certain word or phrase. These are important matters at any time, but especially in this class of actions (Marsh v. Falker, 40 N. Y. 536). Everything was material then that was relevant to the condition of his mind when he testified, and at other times, since the original transaction.

In this regard, as well as in regard to any hostility the witness might have against the defendant, it was right to search out everything in the way of motive, using that word in a broad sense, that would affect his mind and its emanations on the trial. He had brought and maintained his action for fraud, as plaintiff he had constructed in a certain sense the case. First he testified to the representations. Then he put on the stand his own witnesses and called from them such testimony as he thought it expedient to draw out. He, by the nature of his action, took the position that he had been deceived by the representations, and in. his reexamination testified that he took the bonds on the faith of the representations made by the defendant. If, as a fact, he had said that the defendant, 'had not made any false and fraudulent representations to him, the defendant might have asked the jury to say, if there had not been some conversation by the plaintiff when he pretended that it was a case of fraud and yet himself did not believe it. It might be that the pretenses were not so falsely or fraudulently made as to have deceived the plaintiff, and that, in fact, he was hot deceived. It might be that he had fitted his testimony in regard to what the defendant said to the other evidence he could produce as to the value of the bonds. If the questions had been answered favorably to the defendant, the ground of the belief might have been called for, and some fact of importance disclosed.

On the other hand, under the explanations of the witness, or, indeed, without them, a jury might attach an importance to the testimony. Still it should be submitted to them. In cases of this kind the jury should have all means that the rules of evidence can give them, deciding cautiously and with full knowledge of all the facts.

As a general rule, the opinion or belief of a witness is not evidence, and therefore a former statement of his as to them, cannot be called for. In this case the questions referred to statements of belief or opinion, but not purely so. There were elements of fact included. Whether any representations were made, what influence originally they had, if made as the plaintiff considered in reference to their being false and fraudulent, also whether such as were actually made were not false or fraudulent, because the witness by investigation had found them to be true, were all matters of fact. The questions that related to these matters of fact were not made incompetent in this case as partly calling for mere opinion and belief, on two grounds. First. When a party claims a legal right, and has put himself on the stand as a witness, his credibility is affected by an unexplained statement of his that he believes that he has no such right, and the fact of the statement is so unusual and so against his interest, that it is, as cross-examination, a proper mode of approaching to his knowledge of material facts, which may be the foundation of such belief (Opinion of Judge Monell, in Green v. Rice, 33 N. Y. Sup. Ct. 1 Jones and Spencer, 293). Second. When part of the case or defense consists of the state of mind of a party, it is proper to ask of him on the witness stand Ms declaration as to Ms state of mind, at a subsequent time, in reference to subjects alleged by Mm to have induced that state of mind which is essential to his cause of action or defense.

On this point the conclusion is, that the defendant should have been allowed to ask the question under examination. Marsh v. Falker, 40 N. Y. 565 ; Chester v. Comstock, Id. 575, have given a clear rule to be applied to cases of this kind. Judge Daniels said, in Marsh v. Falker, “ that the representations made by the defendant to the plaintiff in that case were sufficient to warrant a recovery if they were fraudulently made.” But “before the plaintiff could lawfully recover that loss from the defendant, it was equally as essential to the right to do so, that he should satisfactorily prove that these representations were fraudulently made. That they were not only false in fact and caused the loss sustained by him, but beyond this that they were made with intent to deceive him. This was the gist of the action, and it has always constituted its distinguishing element, and as such it has been described by all the authorities,” citing many cases, and Chester v. Comstock.

In Chester v. Comstock, Judge Woobbttff said, “ actionable ” fraud, consisting in a false representation imports, ex m ternimi, an intent to deceive. It may be committed by stating what is known to be false. It may be committed by professing knowledge of the truth of a statement which is untrue. But in either case falsehood uttered with intent to deceive are the essential “ ingredients.” But a representation made without intent to deceive, in the belief .that it is true, whether it be a representation imputing the existence of the fact or imputing the knowledge of the fact, is not per se a fraud for which an action will lie. Whatever the representations may be, it is in such actions a question and vital question whether it. was fraudulently made ; that it was made imprudently or indiscreetly, is not enough. Deceit is the gist of the action. Falsehood, the intent to deceive, and damage, must concur.

Nothing can be less doubtful than these propositions. The test is, did the defendant mean to mislead 1 If he did, then he had an intent to deceive ; and whatever- were the forms of the words he used, whatever the meaning of the words, considered apart from his object in using them, if he did not have as an object the misleading of the plaintiff, he is not liable to an action. "The legal, though, perhaps, not the usual reason for this is, that previous to his saying the thing complained of, he owed no legal duty to the plaintiff; a plaintiff has no claim upon a defendant that he, upon request, shall exert his powers of recollection or judgment in behalf of the plaintiff. If he proceeds to do or say anything in acting upon the plaintiff ’ s request, the measure of his duty is, not to commit a tort, i. e., ‘ not to intentionally deceive the plaintiff to his damage.

Judge Daniels, in reconciling Bennett v. Judson (21 N. Y. 238), with Marsh v. Falter, or rather in showing that it did not establish a different principle, notices that in that case the representations were made in such a manner and under such terms ££ as were calculated to produce the conviction in the mind of the purchaser, that he had personal knowledge of the truth. That instead of being the result of information derived by him, he had actual knowledge acquired by ocular inspection and personal examination, and therefore, that ah intent to deceive could be very naturally inferred.” The learned judge means inferred by a jury and not as a matter of law. Judge Woodbuee thought that Bennett»; Judson was not in harmony with' the rule he stated in Chester v. Comstock, which was followed in Marsh v. Falker, and cases afterwards decided. Judge Daniels did not mean to unsay what he had just stated and which of itself decided the case. He had said that representations must be made with intent 'to deceive.' He proceeds, “The difficulty in the case was as to the existence of the fact, arising out of the common habit of mankind to express themselves in positive unqualified terms when the statements are dependent upon their faith in the veracity of others. Where convictions thus derived may be inadvertently expressed in positive terms without any intent to deceive, they would be insufficient to sustain an action of this nature, because the design to defraud would be excluded from the transaction. That is, men often say affirmatively and honestly that things exist, which may be their conclusion in reasoning, or may have been learned from others who themselves have made no original observation, or may have been read in a newspaper.” Certainly, very little is said in the common in't^rcourse of life, even when subjects of importance are spoken of with gravity and sincerity, which is based upon that kind of knowledge required in a witness to testify. In Marsh v. Falker the representatons consisted, of unqualified, positive statements, among them that Kahn was good for seventeen thousand dollars or eighteen thousand dollars in property, “a thing which Falker might know by what is called direct knowledge.” Such a statement was calculated to produce the conviction, that Falker had actual knowledge on the subject, so far as the meaning of the words goes, and the presumption is that a person understands the meaning of words he uses. Falker assumed to have knowledge of their truth, and of course he at the time knew he had no such knowledge.

It must, therefore, be always held in view that no matter what the statements were calculated to produce as cause and effect, no matter what a person, so far as the form of what he said is answered, assumed to know, if he did not actually calculate to produce that effect, or if he did not assume, by a form of words, knowledge for the conscious purpose of leading the plaintiff to believe he had knowledge, he is not liable. If he meant to deceive and defraud in any way, by stating what turns out not to be fact, he is liable. Of course, his previous knowledge or means of knowledge, the forms of the words he uses, and the presumption of fact made by the law, are all to be considered by the jury, but the conclusion of the whole matter must be a purpose or intention to mislead, deceive, injure, or defraud.

It should be noticed that in Oberlander v. Spies (45 N. Y. 177), in which case the referee had omitted to find that the defendant knew that the representations made by him were false or made with fraudulent intent, the opinion of the court said that if the defendant believed, or had reason to believe, that the representations were false at the time, then they were for that reason fraudulently made. This does not say that if the defendant had had at a time previous to the representations reason to believe that the facts stated by them did not at that previous time exist, then that the repre- ' ^audulent.

"t the time of the representations, .on to believe that they were then u’audulent. The reason of belief vne representations as they were made, .a not dormant, as entertained at a past time, ot be present to the mind of the defendant, and ygnized by him, at the time he says what was at /ariance with it.

Atkins v. Elwell (45 N. Y. 760) sanctioned the charge of the court below in that case, that if representations were made which the defendant knew were false, or knew or had been informed of facts or circumstances which would have led a man of common sense and prudence to think and believe that the ship was or might be wormed, the defendant, &c.

The court of appeals then says, that a request which had not been acceded to by the court below should have embodied this element of knowledge of the falsity of the representations or information of facts and circumstances which would put upon inquiry. This would seem to imply that if, at a former time, facts had come to the knowledge of the defendant which would have led a man of common sense to proceed to inquire and'then to reason upon and weigh the facts he knows, or the results of the inquiry, he will be liable upon making the representations, if the representations turn out to be false. No doubt testimony on these points is material and relevant to the question of fraud, but it looks as if the court meant to say that it was of itself proof of fraud in making the representations. Applying this without qualification seems to lead to results at odds with the essential traits of actions for deceit. If it is clear that the defendant owes no duty to the plaintiff to make the representations, then, when the previous facts occurred which would put a man of common prudence on inquiry, and which, with the results of the inquiry, would lead such a man to the true state of the case, the defendant was not bound .to inquire nor to exercise his judgment, i. e., he was not bound to get into possession of the facts which, by the opinion, showed that he intentionally deceived when he made representations contrary to the result he would have . reached if he had inquired, &c. Does he, at the time of making the representation, become bound to the plaintiff to exert his memory and judgment ? If he does not exert these, is he liable for his omission or neglect \ It is hard to understand why, in an action not for breach of contract or for negligence, the defendant should be held to have been bound to the plaintiff, at the time of the representations, to recall the facts and circumstances which would have led to inquiry, and to give his attention and best judgment in drawing conclusions from them, before he speaks. The case seems to suggest that the mere existence of facts which would have led to inquiry, though they themselves were not sufficient to falsify the representations, will be proof of fraud.

In the present case, the counsel for the plaintiff made no point of the kind last referred to, so it must be decided upon Chester v. Comstock, as approved by Marsh -y. Falker, Oberlander v. Spies, and Atkins x>. Elwell.

It results from these considerations that the court should have charged, as requested by the defendant’s counsel, “that if the jury believe that the statements made by the defendants were made in the honest belief of said statements, and although said belief has resulted from a mistake he has fallen into without fault on his part, the plaintiff cannot recover ” unless the court otherwise made the same charge in substance.

The learned counsel for the plaintiff argues that the court could not have charged this, because if this defendant assumed to speak from knowledge when he had none, the fact that he believed the representations is no defense. But this does not seem to be a possibility. If the representation was that the defendant knew a certain thing, if he did not know it, it is not possible that he could believe the representation, unless you say, in a colloquial sense, that he believed he knew, and in this sense he could have no intention to deceive. More broadly, Marsh -9. Falker is in its main proposi- ' tion against this position of the counsel. It says,' in effect, that loose method of conversation prevails in which men assume to know things which they do not know, and yet do not assert with any fraudulent purpose. It is hardly necessary to assert again that the fact that a man uses a positive and unqualified form of assertion, and in that sense assumes to have knowledge of the proposition he makes, no doubt will always have great influence with a jury in examining the issues as to whether he meant to deceive, but it does not seem to have been decided by the cases that it is conclusive proof of fraud. Judges in delivering opinions have used the phrase alluded to as a practical illustration of a principle of law, but they do not make it the rule.

The counsel for plaintiff further urges that the court did, in effect, charge the equivalent of their request under examination. After considering deliberately all the charge, as it appears in the case, the conclusion has been reached that the court, in declining to make the charge, misled the jury as to its province of saying , whether or not, as a matter of fact, the defendant intended by means of what he said to defraud the plaintiff.

The learned judge began by stating that the counsel had presented some questions for him to charge which are sound in law. I do not see any conflict between the points. That is, the jury was instructed that substantially the law as stated by the plaintiff’s counsel was the same as the law stated by the defendant’s counsel ; in other words, that one was the equivalent of the other.

The court went on to give the proposition of law as stated in behalf of the plaintiff. The first was that if a material misrepresentation be made, it is considered as a constructive or legal fraud, although it be made without any «willful intention to deceive, but merely carelessness, mistake or ignorance. As to this, the court said that he did-not agree positively with it, and that he would qualify it by what should be charged thereafter. The second was that if a man be actually ” deceived by a misrepresentation, the practical result is the same, whether it was a willful fraud or not. This the court charged. The third was that if a party undertake to make a material statement, not knowing whether it is true or false, and thereby mislead the other to his injury, it is no defense that he did not know that the statement was false, since, before making the affirmation, he should have ascertained the truth. Then the court went on to give the proposition of law stated on behalf of the defendant, which the judge had said did not conflict with the points made for the plaintiff. The court did not go over the defendant’s points in detail, but as to seven of them, he said that these propositions of law generally were sound. Two of them requested the court to charge that the jury must be satisfied that the defendant was guilty of intentional falsehood in making the representation, and that the plaintiff must satisfy the jury that the defendant was guilty of falsehood, and that he intended to deceive the plaintiff. It seems to result from this that the jury was led to think that this intention to defraud might be found in a constructive or legal fraud, which the jury were bound to say existed if a man were actually deceived to his damage by a material misrepresentation which misled him, although the party making did not know whether it was true or false, because he .was bound, before making the affirmation, to have ascertained the truth.

But to make a party liable it is necessary that the jury find that he was guilty of an actual fraud in fact, as distinguished from a constructive or legal fraud ; nor does a party become liable if, in undertaking to make a material statement, not knowing whether it is true or false, he thereby misleads another, because before making the affirmation he should have ascertained the truth. That breach of duty, admitting for the moment that he was so bound, does not amount to fraud, which must exist to make a cause of action. It seems to me, without going into unnecessary detail, that the conception of the cause of action by the plaintiff was essentially unlike that presented by the defendant, and therefore, a refusal to charge the request in view, led the jury to think that under some conditions the defendant might be found guilty, if he had, without fault on his part (Atkins v. Elwell, supra), an honest belief that his statements were true.

The court did not afterwards so qualify the first proposition made by plaintiff’s counsel as to weaken any force it had in its specific construction. The court afterwards did say that the jury must find that the defendant meant to deceive. This was not a qualification of the proposition, but in substance negatived it. If the two were to be (from the court saying it meant only to qualify the proposition) considered together by the jury, the jury could not tell which to rely on, and the eighth request might form a turning point, and probably would, in the minds of the jury in coming to the conclusion, that at least the court did not mean that an honest belief in the statement was to be considered by them on the question of fraud.

In that part of the charge that followed the refusal to charge the eighth request, the court told the jury what it was necessary that they should find before making a verdict against the defendant. The learned judge explicitly said that it was necessary to find that the defendant intended to defraud the plaintiff. No doubt the court intended to make this a vital requisite, but inadvertently did not anywhere instruct the jury as to what should be the effect with them of an honest belief held by the defendant that what he said was true. As said before, by refusing to charge as to such effect, the jury were permitted to think that even if without fault on his behalf he believed what he said to be true, they could still find that he intended to defraud. This is in opposition to the reported cases.

Another portion of the charge might have sustained this construction of the charge by the jury. The court said that if the defendant in making the statement expressed his opinion upon the bonds as to their future or present value, then the plaintiff took them at his peril. “But representations” made by a party of personal knowledge of facts is different from a mere expression of opinion; for if a party makes a representation in such a way to you that it is calculated to make an impression upon your mind that he is spea,king from his knowledge, or that he has knowledge and is speaking from that knowledge, then he must be held liable. The jury were then told that the facts then described were proof of the intent to defraud. But this leaves the proof of fraud to rest, not upon what the jury should say was sufficient evidence that the defendant meant to cheat, but upon the form of expression as calculated to produce a certain impression. Not much, if anything, beyond the fact that the defendant, though cautious and prudent, was actually deceived, would be necessary to be found to prove that the defendant did express himself in a way that was calculated to give the impression particularized by the charge./ But as has been before insisted on, if the defendant did not mean to mislead the plaintiff, no special form of expression, whatever it is calculated to effect, will make him of itself guilty of an intent to defraud.

In looking through the charge, the defendant does < not appear to have had the benefit of the substance of f the eighth request, and to which he was entitled.

The judgment should be reversed, with costs to the defendant, to abide the event of the new trial that is granted.