Barker v. Cook.

If the plaintiffs are not entitled to specie, they were at least entitled to payment in Illinois currency receivable in the ordinary transactions of business at par.

The judgment should be affirmed, with costs.

[NEW YORK GENERAL TERM, May 4, 1863. Sutherland, Clerke and Mullin, Justices.]

BARKER and others vs. Cook.

It is erroneous to vacate an order of arrest, merely because the copy affidavit served contains no signatures of the affiant or of the officer before whom the affidavit was sworn to.

If no copy, or paper purporting to be a copy, of the affidavit is served by the sheriff, on arresting the defendant, the omission is an irregularity only, and will not entitle the defendant to his discharge.

The provision of the code requiring the sheriff to deliver a copy of the order and affidavit to the defendant, on arresting him, is merely directory.

If an order to show cause why an order of arrest should not be vacated, on the ground of irregularity, does not point out the irrregularity, the order cannot be vacated for that reason.

A

N order of arrest was granted in this case, on an affidavit stating that the defendant had disposed of his property with the intent to defraud his creditors. The affidavit, duly signed and sworn to, was filed with the clerk at the time the order of arrest was granted. Subsequently the defendant, on an order to show cause not specifying the ground of objection, and without any affidavit, moved, on a general notice, to vacate the order. On the hearing of the motion, he insisted that the arrest was void, because the copy affidavit served on him did not contain the signatures of the affiant, to the affidavit, or of the officer to the jurat. The court, at special term, vacated the order of arrest, and discharged the defendant, although the objection was raised, by the plantiffs, that the irregularity was not specified in the moving papers. The plaintiffs appealed.

Barker v. Cook.

John N. Lewis, for the appellants.

H. M. Whitehead, for the respondent.

SUTHERLAND, P. J. It does not appear from the appeal papers upon what ground the judge at special term vacated the order of arrest. If, as stated by plaintiff's counsel, he vacated it exclusively on the ground that the copy affidavit served contained no signatures or copy signatures, I think he erred.

If no copy, or paper purporting to be a copy, of the affidavit had been served by the sheriff, upon arresting the defendant, such omission would I think have been an irregularity only, and would not have entitled the defendant to his discharge. (Keeler v. Betts, 3 Code Rep. 183. Courter v. McNamara, 9 How. Pr. R. 255.)

The provision of the code requiring the sheriff to deliver a copy of the order and affidavit to the defendant, upon arresting, is directory merely.

The facts stated in the affidavit upon which the order of arrest was granted, to show that the defendant had removed or disposed of, or was about to remove or dispose of his property with intent to defraud his creditors, are certainly slight.

MULLIN J. The matters stated in the affidavit on which the order of arrest was granted, authorized the order of arrest. But the copy affidavit served was not subscribed by the party, nor did it purport to show that the original paper was signed by any affiant; nor was the jurat signed by any officer authorized to administer oaths; nor did it purport that the original was signed by any such officer. If it was necessary to the validity of the order that these names should appear from the copy to have been signed to the original, then the order of arrest was correctly vacated; otherwise not.

In Graham v. McCoun (5 How. 353) Justice Willard reviewed the practice as to the necessity of serving the signatures

Sharp v. Mayor &c. of New York.

of the affiant and officer to an affidavit, and he came to the conclusion that in cases where the opposite party had an opportunity to inspect the original, and it was properly signed, it was not necessary to annex such signatures to the copy, nor that the copy should purport that the original was so signed; but where such opportunity was not given, as in the verification of pleas in abatement under the former, and of pleadings under the new practice, the papers served must contain the signatures, or they may be disregarded. The cases cited by the learned justice sustain his views of the practice. It follows that the affidavit in this case is not one which must contain the names.

The copy affidavit served was not void. If it was irregular, the order to show cause did not point out the irregularity, and hence the order could not, under the rules, be vacated for that reason.

I am of opinion the order of arrest was improperly vacated; and the order of the special term should be reversed, with ten dollars costs.

Order reversed.

[NEW YORK GENERAL TERM, May 4, 1863, Sutherland, Clerke and Mullin, Justices.]

JACOB SHARP vs. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK.

If a party makes representations, in such manner as to import a knowledge in him of facts, when in truth he has no knowledge of the facts, and the representations are made with the intent that another shall rely on them, and the latter does rely on them, and the representations turn out to be false, it is as much a fraud as if the party making them knew them to be untrue.

Where the complaint, in an action to recover damages for false representa

tions, sets forth the representations that were made, stating them as representations of fact made by the defendants of their own knowledge, and not as expressions of opinion or belief; that those representations were

Sharp v. Mayor &c. of New York.

false; that the plaintiff relied on them, and that he suffered damage thereby, this is sufficient to entitle the plaintiff to recover, upon proof of those facts, unless the defendants can justify their representations; although the complaint does not in terms allege any fraudulent, willful or intentional misrepresentation.

Upon those facts the law adjudges fraud.

Where parol proof of representations made at the time of executing a lease is offered, not for the purpose of showing that the lease was intended to pass something which by its terms was not passed, but to show what the terms of the lease would have passed, if the representations had been true, it is not liable to the objection that a written instrument cannot be contradicted &c. by parol evidence.

So held where a lease of a ferry slip demised to the lessee the slip "or so much thereof as belongs to the parties of the first part," and the representations sought to be proved were that the lessors owned the whole slip, with a trifling exception.

A committee of a common council, to whom is referred the petition of an applicant for a lease of a slip and ferry privileges, has power to bind the corporation by its representations in respect to the title of the corporation to the slip; where the representations are such as touch the very matter with which the committee is charged. CLERKE, J. dissented.

The general principle that a corporation may delegate to agents the performance of any act which it can itself perform, is well established. Per BARNARD, J.

There is no principle of the common law by which the incidents attaching to the appointment of an agent, when that appointment is made by a corporation, are more restricted than when the appointment is made by an individual. Per BARNARD, J.

A principal is liable for the false representations of his agent, made in and about the matter for which he was appointed agent, not on the ground of express authority given to the agent to make the statement, but on the ground that as to the particular matter for which the agent is appointed he stands in the place of the principal, and whatever he does or says in and about that matter is the act and declaration of the principal, for which the principal is just as liable as if he had personally done the act, or made the declaration.

The power of the agent to render the principal liable for representations flows from his mere appointment to do the act or transact the business in and about which the representations are made.

Where a corporation has power to do some act, and as incident to that act to render itself liable for representations made in and about the doing of that act, it can appoint an agent to do the act; and from the mere fact of such appointment the same powers will flow to the agent as if he had been appointed by an individual; provided only that the powers so flowing could have been exercised by the corporation itself. VOL. XL.

17

Sharp . Mayor &c. of New York.

Thus, where a municipal corporation had power to negotiate a lease of a slip, and in the course of such negotiation to render itself liable for any misrepresentation made in relation thereto; Held that it had also power to appoint an agent to conduct the negotiation, and from such appointment there flowed to the agent the power to render the corporation liable for any misrepresentation. CLERKE, J. dissented.

After the granting of a lease of a slip, by the corporation of New York, to S. the lessee informed the officers of the corporation that his possession of the property, which had been represented to him to belong to the city, had been obstructed. The common council then passed a resolution directing the property to be surveyed. It was surveyed, and the surveyor made a map representing the property to belong precisely in accordance with the representations made to S. Thereupon another resolution was passed, directing the corporation counsel to put and keep the lessee in the possession and enjoyment of the property as laid down on the map. Held that the reasonable presumption and fair intendment was that the common council, when it passed these resolutions, knew of the representations that had been made, and passed the resolutions in view of them; and that this was a ratification of the act of the committee in making such representations; and the common council, in effect, again represented that the corporation owned the property.

A

PPEAL from a judgment entered at a special term. The action was brought by Jacob Sharp, to recover damages for injuries sustained by him in consequence of certain misrepresentations made by the defendants. The cause was tried before Mr. Justice HOGEBOOм and a jury, at the New York circuit, in October, 1861. It appeared, from the evidence produced at the trial, that in the month of March, 1852, the plaintiff applied, by petition to the common council of the city of New York, for a lease of the slip at the foot of Wall street, with the right of establishing and taking the tolls of a ferry between that point and Brooklyn. The misrepresentations complained of were made in respect to, the title of the corporation to the inside of the slip, on the east. It appeared from the maps of the corporation, lodged in the office of the street commissioner, that the defendants owned the whole of the slip of which he sought a lease, except a small triangle hereafter mentioned. The boards of aldermen and assistants referred the petition of the plaintiff to their