By the Court, Baloom, P. J.
A warrant is the only process by which a person can commence an action for a tort or wrong before a justice of the peace of the county in which he resides, against a non-resident of such county. (3 R. S. 5th ed. 429, § 15. Id. 462, § 213. Benedict’s Treatise, 3d ed. 68, 69. 1 Cowen’s Treatise, 2d ed. 461, 462.) And it is provided by statute, that “In all cases, on application for a warrant, except where the suit shall have been commenced by summons, the person applying shall, by affidavit, state the facts and circumstances within his knowledge, showing the grounds of his application, whereby the justice may the better judge of the necessity and propriety of issuing such warrant.” (3 R. S. 5th ed. 429, § 17. 1 Cowen’s Treatise, 2d ed. 463.) The defendant’s counsel insists that the plaintiff did not state sufficient facts and circumstances in his affidavit in this case to entitle him to a warrant; but I am of the opinion he did. He stated positively that he was a resident of the county in which the action was brought, and that the defandant was not a resident of that county, but was a resident of Cayuga county. The affidavit was certainly sufficient in respect to the residence of the parties. (See Benedict’s Tr. 3d ed. 69, 70; 1 Cowen’s Tr. 2d ed. 463; Hunter v. Burtis, 10 Wend. 360; Loder v. Phelps, 13 id. 46; Smith v. Luce, 14 id. 237; 20 id. 77; Whitney v. Shufelt, 1 Denio, 592.) He also stated that he had, as Jie' verily believed, a good cause of action against the defend[633] ant, for fraud and deceit in the sale by him of a certain pair of horses to the plaintiff in the year 1857. This clearly showed, if he had a cause of action against the defendant, that it was not upon contract, but was ex delicto; in other words, for a tort or wrong. The contract of sale was stated and proved, by way of inducement; but the fraud and deceit constituted the gist of his claim. The defendant’s counsel seems to think the plaintiff should have sworn positively that he had a cause of action against the defendant for the alleged fraud and deceit, or that he should have stated more facts and circumstances from which it might be inferred he had such a cause of action. It will be observed that the statute only requires a person, applying for a warrant, to state the facts and circumstances “ within his knowledge,” showing the grounds of his application. Neither of the authorities above cited, nor any other that I am aware of, holds that the person or party who applies for a warrant, in an action ex delicto, must swear positively that the plaintiff has a cause of action against the defendant, or to sufficient facts and circumstances clearly to show the existence of the alleged cause of action. Such an affidavit could not be truthfully made by one plaintiff in twenty. In this case, if the alleged fraud and deceit were proved on the trial, the same were established by isolated facts and circumstances, that were stated by different witnesses, and as to which the plaintiff had no personal knowledge. I think all a person need state, in his affidavit for a warrant, as to having a cause of action for a tort or wrong, is that he believes he has a cause of action against the defendant, and then set out when and how he claims it arose, so that it may be seen to be ex delicto. If these views are correct, the affidavit authorized the justice to issue the warrant in this case.
The defendant’s counsel contends that the justice erred in adjourning the cause, on the application of the plaintiff, from the 24th to the 30th day of January. The defendant was entitled to' be discharged from the custody of the con[634] stable at the expiration of twelve hours from the time he was taken before the justice upon the warrant, because the trial of the cause was not commenced within that period. (2 R. S. 229, § 25. Arnold v. Steeves, 10 Wend. 515. Benedict’s Tr. 3d ed. 72. 1 Cowen’s Tr. 2d ed. 507. Id. 532, 533.) And as the return of the justice shows nothing to the contrary, it will be presumed he was discharged within that period. But the plaintiff, notwithstanding that, was entitled to have the cause adjourned upon showing good reasons therefor. It is stated in Cowen’s Treatise, that “it is also inferrible from the language of the seventy-second section, (2 R. S. 239,) that the plantiff, in a suit commenced by warrant, although he be a resident, may have an adjournment on his own application; but in such case the defendant is to be discharged from custody.” (2 Cowen’ Tr. 2d ed. 840, 841.) The cause was not discontinued by the adjournment or discharge of the defendant from the custody of the constable. (2 R. S. 239, §§ 72, 73.)
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By the Court, Baloom, P. J.
A warrant is the only process by which a person can commence an action for a tort or wrong before a justice of the peace of the county in which he resides, against a non-resident of such county. (3 R. S. 5th ed. 429, § 15. Id. 462, § 213. Benedict’s Treatise, 3d ed. 68, 69. 1 Cowen’s Treatise, 2d ed. 461, 462.) And it is provided by statute, that “In all cases, on application for a warrant, except where the suit shall have been commenced by summons, the person applying shall, by affidavit, state the facts and circumstances within his knowledge, showing the grounds of his application, whereby the justice may the better judge of the necessity and propriety of issuing such warrant.” (3 R. S. 5th ed. 429, § 17. 1 Cowen’s Treatise, 2d ed. 463.) The defendant’s counsel insists that the plaintiff did not state sufficient facts and circumstances in his affidavit in this case to entitle him to a warrant; but I am of the opinion he did. He stated positively that he was a resident of the county in which the action was brought, and that the defandant was not a resident of that county, but was a resident of Cayuga county. The affidavit was certainly sufficient in respect to the residence of the parties. (See Benedict’s Tr. 3d ed. 69, 70; 1 Cowen’s Tr. 2d ed. 463; Hunter v. Burtis, 10 Wend. 360; Loder v. Phelps, 13 id. 46; Smith v. Luce, 14 id. 237; 20 id. 77; Whitney v. Shufelt, 1 Denio, 592.) He also stated that he had, as Jie' verily believed, a good cause of action against the defend[633] ant, for fraud and deceit in the sale by him of a certain pair of horses to the plaintiff in the year 1857. This clearly showed, if he had a cause of action against the defendant, that it was not upon contract, but was ex delicto; in other words, for a tort or wrong. The contract of sale was stated and proved, by way of inducement; but the fraud and deceit constituted the gist of his claim. The defendant’s counsel seems to think the plaintiff should have sworn positively that he had a cause of action against the defendant for the alleged fraud and deceit, or that he should have stated more facts and circumstances from which it might be inferred he had such a cause of action. It will be observed that the statute only requires a person, applying for a warrant, to state the facts and circumstances “ within his knowledge,” showing the grounds of his application. Neither of the authorities above cited, nor any other that I am aware of, holds that the person or party who applies for a warrant, in an action ex delicto, must swear positively that the plaintiff has a cause of action against the defendant, or to sufficient facts and circumstances clearly to show the existence of the alleged cause of action. Such an affidavit could not be truthfully made by one plaintiff in twenty. In this case, if the alleged fraud and deceit were proved on the trial, the same were established by isolated facts and circumstances, that were stated by different witnesses, and as to which the plaintiff had no personal knowledge. I think all a person need state, in his affidavit for a warrant, as to having a cause of action for a tort or wrong, is that he believes he has a cause of action against the defendant, and then set out when and how he claims it arose, so that it may be seen to be ex delicto. If these views are correct, the affidavit authorized the justice to issue the warrant in this case.
The defendant’s counsel contends that the justice erred in adjourning the cause, on the application of the plaintiff, from the 24th to the 30th day of January. The defendant was entitled to' be discharged from the custody of the con[634] stable at the expiration of twelve hours from the time he was taken before the justice upon the warrant, because the trial of the cause was not commenced within that period. (2 R. S. 229, § 25. Arnold v. Steeves, 10 Wend. 515. Benedict’s Tr. 3d ed. 72. 1 Cowen’s Tr. 2d ed. 507. Id. 532, 533.) And as the return of the justice shows nothing to the contrary, it will be presumed he was discharged within that period. But the plaintiff, notwithstanding that, was entitled to have the cause adjourned upon showing good reasons therefor. It is stated in Cowen’s Treatise, that “it is also inferrible from the language of the seventy-second section, (2 R. S. 239,) that the plantiff, in a suit commenced by warrant, although he be a resident, may have an adjournment on his own application; but in such case the defendant is to be discharged from custody.” (2 Cowen’ Tr. 2d ed. 840, 841.) The cause was not discontinued by the adjournment or discharge of the defendant from the custody of the constable. (2 R. S. 239, §§ 72, 73.)
The only other question in the case, worthy of notice, arises out of the refusal of the justice to allow the defendant to answer the following question as a witness, that was put to him by his counsel, viz: “ Did you intend on that sale to cheat, defraud, or deceive the plaintiff in any manner ?” The sale here referred to, was that of the horses by the defendant to the plaintiff, in which the latter claimed he was deceived and defrauded. The plaintiff objected to the question on the ground that it was inadmissible, and that the jury were to judge from what was said and done. His counsel now contends it was immaterial; for the reason that the defendant had stated all that was said and done between the parties, on the sale. This position is untenable, if the intent of the defendant, in what he said and did in selling the horses to the plaintiff, was material. In Sizer v. Miller and others, (1 Hill, 227,) the plaintiff sought to recover upon a promissory note, to which the defense of usury was interposed ; and Clary, one of the payees named in the note, was [635] called as a witness for the defendants, and on his cross-examination was asked by the plaintiff’s counsel, “ if there was any intention, shift or device on his part in the transaction, to get or realize more than seven per cent from Miller,” the borrower. The question was excluded, and the plaintiff’s counsel excepted. The plaintiff was beaten. But a new trial was granted by a majority of the court, without passing upon the question raised by the above exception. Justice Cowen dissented ; and in his dissenting opinion said, “ Clary was asked, whether there was any intention, shift, or device, on his part, to get more than seven per cent. The question would have been very exceptionable as a leading one, had it not been put to the witness on cross-examination; but it was exceptionable also as calling on him to pronounce broadly upon the point in issue.” Hanford v. Artcher (1 Hill, 347) was replevin. The plaintiff’s title to the goods in question was by a sale to him, from the assignees of one Horton. One of the assignees was called as a witness for the plaintiff, who put to him the following question: “ So far as you are concerned, was there any actual fraud in the whole transaction?” and it was held irrelevant, as being an inquiry after the secret operations of the witness’ mind, which could not affect the case one way or the other. The reversal of that case, by the court of dernier resort, (4 Hill, 271,) was not for the reason that the question I have mentioned was proper; but it was placed upon other grounds : and it was held by Senator Hopkins and Chancellor Walworth, the only members of that court who alluded to the question, that for the purpose of rebutting the presumption of fraud, which the statute raises from the want of a change of possession of the goods sold, mortgaged or assigned, it is not proper to ask the vendor, in general terms, whether, so far as he is concerned, there was any actual fraud in the whole transaction. Those decisions were the only evidence of what the law is on the question under consideration, that I recollect, until the court of appeals decided, in Seymour v. Wilson, [636] (4 Kern. 567; S. C., 15 How. Pr. Rep. 355,) that on an issue of fact, as to whether an assignment or transfer of property was made to hinder, delay or defraud creditors, it is competent, where the assignor is a witness, to inquire of him whether in making the assignment or transfer he intended to delay or defraud his creditors. That decision remains unshaken by any subsequent adjudication; and I think, notwithstanding the report of it does not show the cases in Hill’s Reports, which I have mentioned, were cited by counsel or alluded to by the court, that it must be regarded as overruling those cases. I am therefore of the opinion that this court is now bound to hold that a party, when charged with an intent to deceive or cheat or defraud, or with fraud and deceit, must be allowed to testify as a witness in his own behalf, that he did not intend to cheat, deceive or defraud, or to practice any fraud or deceit in the transaction wherein he is charged with having had such motive, however inconclusive, unsatisfactory or inconsistent his evidence may be. (See 22 N. Y. Rep. 549, 550.)
The return of the justice in this case shows that the plaintiff asked the defendant if he would warrant the horses, and that he expressly refused so to do. There are two claims in the complaint; the first is for false, deceitful and fraudulent representations, and the second is for a fraudulent and willful concealment. In such case the complaint, to be good, must aver a knowledge of the fraud on the part of the defendant, because to support the action such knowledge must be made to appear by proof on the trial.” (1 Van Santvoord’s Pl. 2d ed. 286. See 1 Cowen’s Tr. 2d ed. 328; 2 id. 644-646; 2 John. 550; 6 id. 138; Collins v. Dennison, 12 Metc. 549.) If the defendant fraudulently represented to the plaintiff that the horses were materially different from what he knew they were, or fraudulently concealed a material fact concerning them from his knowledge, he intended to deceive, cheat and defraud him. Hence the defendant had the right to testify that he did not on the sale of them to the plaintiff in[637] tend to cheat, defraud, or deceive him in any manner. The weight due to the evidence, if it had heen admitted, would have been for the jury to determine. (See 4 Kern. 567; 22 N. Y. Rep. 549, 550.) Such evidence, in some cases, can have but little influence; hut we cannot say, as was held in Seymour v. Wilson, (19 N. Y. Rep. 417,) that it could not have had any, in this case, and therefore hold that the error of the justice in rejecting it did not affect the merits. The case is not like that of Bennett v. Judson, (21 N. Y. R. 238.)
[Broome General Term,
January 28, 1862.
My conclusion is, that for the error of the justice in refusing to allow the defendant to testify that he did not intend on the sale of the horses to cheat, defraud or deceive the plaintiff in any manner, the judgment of the Cortland county court and that of the justice should be reversed, with costs.
Decision accordingly.
Balcom, Campbell and Parker, Justices.]