THIRD DEPARTMENT, SEPTEMBER TERM, 1898. [Vol. 33. jurisdiction to do so, is a protection to a sheriff for acts done under it. (Bullis v. Montgomery, 50 N. Y. 352.) It has been held that an execution regular in form but void in fact, which did not, upon its face, convey to the sheriff knowledge of the facts that rendered it void, was a protection to him in making a levy upon property. (Hill v. Haynes, 54 N. Y. 153.) Not only is a process, issued by a court of competent jurisdiction, a protection to the sheriff, but it is his duty to act under it. When there is no defect of jurisdiction, neither irregularity nor error, in issuing an execution, will justify a sheriff in refusing or neglecting to execute it. (French v. Willet, 4 Bosw. 649.) As to the necessity of acting under process of the court, see, also, Conner v. Long and Wilmarth v. Burt (supra). It has been held that a sheriff, when sued for an escape or as bail, cannot object that the order of arrest was improperly or irregularly granted, or that there was error or irregularity in the judgment or execution. The order of arrest justifies the sheriff in making the arrest, and, unless set aside, justifies the execution. (Bensel v. Lynch, 44 N. Y. 162.) The officer executing the process is protected, although the party causing it to be issued may not be. A judgment may be void as to the parties and valid to protect ministerial officers, where the court issuing it had jurisdiction of the subject matter, and nothing appears on the face of the process to apprise the officer that the court had not also jurisdiction of the person. (Welles v. Thornton, 45 Barb. 390.) "Where the court issuing the process has general jurisdiction, and the process is regular on its face, the officer is not, though the party may be, affected by an irregularity in the proceedings. Where a judgment is vacated for an irregularity, the party is liable for the acts done under it, but the officer has a protection by reason of his regular writ." (Savacool v. Boughton, 5 Wend. 170.) The case last cited is the leading case in this State upon the nonliability of a sheriff for executing a process regular upon its face and issued by a court of competent jurisdiction, and his non-liability was asserted in that case upon the ground that it was unjust to hold him liable as a trespasser for doing what it was his duty to do, with App. Div.] THIRD DEPARTMENT, SEPTEMBER TERM, 1898. out knowing or having the means of knowing, whether his process was, or was not, invalid. (Porter v. Purdy, 29 N. Y. 106, 113.) If the sheriff will be protected in the execution of process void in fact, or for any reason invalid, because of want of knowledge, how much more should he be protected in the service of process valid in fact, and where the only objection to its execution is an agreement between the plaintiff in the execution and another creditor of the defendant in the execution, of which agreement he is not notified and has no knowledge. There would be no safety for the officer serving process if he were to be held bound by undisclosed agreements or equities between parties, or by the irregular manner in which judgments were obtained. Under the evidence in this case in relation to the agreement by which judgment was obtained, and the charge of the court in relation thereto, the jury might have found a verdict against the defendant without considering the question as to whether the bill of sale under which the plaintiff's claimed title, in fact gave them any right to the possession of the goods levied upon by the defendant; or they might have found such bill of sale fraudulent and void, and that it conferred no title to the plaintiffs, and still have found a verdict against the defendant. Without considering the other questions in the case, but for the errors in the reception of evidence, and in the charge herein discussed, the judgment and order appealed from should be reversed. All concurred. Judgment and order reversed and a new trial granted, costs to abide the event. THIRD DEPARTMENT, SEPTEMBER TERM, 1898. [Vol. 33. 33 270 a165a623 33 270 62 236 63 611 HENRY H. DARLING, Appellant, v. DANIEL KLOck, Jr., Fraudulent representations in the sale of stock · when representations to third parties are inadmissible action of a mining corporation in forbidding the use of a silver brick to sell its stock—striking out evidence admitted without objection. In an action, not based upon a conspiracy, brought to recover damages arising out of a purchase of mining stock alleged to have been induced by fraudulent representations of the defendant's agent, the agent's declarations, made in attempting to sell the stock on other occasions to other parties, are incompetent where no offer is made to show that such declarations had resulted in a sale of the stock to the third parties, or that a fraud had thereby been perpetrated upon them. This is certainly the rule where the party making such declarations was acting, Where the good faith of the mining corporation is attacked, the action of the APPEAL by the plaintiff, Henry H. Darling, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 26th day of June, 1896, upon the verdict of a jury, and also from an order entered in said clerk's office on the 25th day of July, 1896, denying the plaintiff's motion for a new trial made upon the minutes. Lansing & Holmes, for the appellant. John H. Peck and E. Countryman, for the respondent. The plaintiff in this case claims that, by reason of fraudulent representations made by the defendant or by his authority, he was App. Div.] THIRD DEPARTMENT, SEPTEMBER TERM, 1898. induced to purchase a large amount of the stock of the Socorro Mountain Mining Company, which was practically worthless, and damages are claimed to the extent of the amount he paid. The verdict of the jury in favor of the defendant is claimed to be against the weight of the evidence. The first purchase by the plaintiff was on or about the 19th of June, 1890. He then bought of Theodore B. Mills, through J. N. Van Wagner at Troy, 5,000 shares of the stock of the company of the par value of five dollars each, at the price of one dollar per share. Other purchases were afterwards made, but the representations upon which the plaintiff relies as a basis for his claim were made at or before the first purchase. In November, 1889, Mills and Van Wagner owned or controlled a silver mine called the Mountain Chief, situated near Socorro in the Territory of New Mexico. Mills lived at Las Vegas, New Mexico, and Van Wagner lived at Troy, N. Y. On November 21, 1889, under the laws of New Mexico, a corporation called the Socorro Mountain Mining Company was organized by Mills and several others, who were residents of New Mexico, having a capital, as stated in the articles, of $1,000,000, divided into shares of five dollars each. One of the first things done by the corporation was to purchase the mine of Mills and Van Wagner at the price of one-half of the capital stock of the company. The balance of the stock was called treasury stock, and some of it was authorized to be sold at a minimum price of one dollar per share for the purpose of raising money for the development of the mine. In the early part of January, 1890, the defendant, who lived at Troy, became owner of 15,000 shares of the stock, which he received from Van Wagner in payment of a loan of $2,500 previously made by him to Van Wagner. This stock was a part of what Van Wagner received in the sale of the mine to the company. The defendant soon after this became a director of the company and its president, and was such in June, 1890. The representation mainly relied upon by the plaintiff and as testified to by him was that a silver brick, called in the case the large brick, which was then in the possession of Van Wagner at Troy, and was exhibited to the plaintiff prior to his purchase, was the product of fifteen tons of ore taken from the mine. The plaintiff THIRD DEPARTMENT, SEPTEMBER TERM, 1898. [Vol. 33. testified that this was said to him by Van Wagner and also by the defendant. The defendant denied that he, or any one by his authority, made such statement. Van Wagner died before the commencement of the suit. In June, 1890, he was the secretary of the company. The brick was not the product of fifteen tons of ore from the mine, but had been purchased and sent by Mills to the defendant on or about the nineteenth of May. The defendant was, as he testified, informed that it represented the value of the silver in fifteen tons of ore taken from the mine, according to assays made in the usual way. He claims that he only stated to the plaintiff the facts as he honestly understood them to be. There was also evidence tending to show that the plaintiff, before he purchased, was informed that the large brick was not the product of ore taken from the mine. In such a case as the present, "the rules of law require a reasonable degree of certainty as to each requisite necessary to constitute the cause of action, viz., representations, falsity, scienter, deception and injury." (Arthur v. Griswold, 55 N. Y. 410.) As said in Brackett v. Griswold (112 N. Y. 454, 457), there must have been a false representation, known to be such, made by the defendant or by his authority, calculated and intended to influence the plaintiff, and which came to his knowledge, and in reliance upon which he in good faith parted with his money; and the absence of any of these elements is fatal to a recovery. The defendant was not the originator of the enterprise. The plaintiff did not purchase any of the defendant's stock, except upon an occasion in November, 1890, and at that time the purchase was evidently made to get rid of the defendant, who was not then disposed to co-operate with the then managers, including the plaintiff, in further efforts at development. No question is made that the brick was not in fact as valuable as stated; the contest was as to whether the statement was made that it was the actual product of the mine. The plaintiff, upon a visit to the mine soon after his first purchase, seems to have been well satisfied as to the situation. No doubt there was silver in the mine, but the trouble was that the expense of reducing the ore, under the circumstances then existing, was greater than the value of the silver that could be obtained. There was evidence that if there had been a tramway from the |