profit and undue emolument to the State,) that it can hardly be feared the action of the Legislature will be drawn into a precedent. But it may be said, the Legislature ought to hold with the supreme court that the jury in this case were more competent than the Legislature to judge. The answer is, that the application goes no further than for authority to the Comptroller to examine into the matter, and that the State having received from the petitioner the amount received on the sale of the mortgaged premiess, stands in the relation of a party who may refuse to avail itself of an inequitable advantage, although a court of law would not give relief.

It may be supposed difficult for the Legislature or the Comptroller to ascertain the facts upon which the verdict of the jury was grounded. But when it is recollected that the case made in the said action was prepared immediately after the trial, was submitted to the jealous scrutiny of counsel on both sides, and underwent the supervision of the judge who tried the cause, and that it was made with the purpose of applying to the supreme court for relief upon the same grounds urged by the petitioner to the Legislature, it must be admitted, that it presents with sufficient accuracy, the proceedings on the trial,

Upon a full and fair review of the case, the committee are of opinion that the verdict of the jury was unjust to the petitioner.

The false representations alleged to have been made by the petitioner were, that "the mortgaged premises were clear of any other incumbrance, and that the purchaser thereof under the mortgage sale would thereby acquire a good and perfect title." The gravamen of the charge against the petitioner was, that the premises had been sold under and by virtue of a judgment in favor of the petitioner himself, which judgment was outstanding and valid at the time of the execution of the mortgage. That the purchaser under the judgment had perfected his title, and therefore Culver, the plaintiff, acquired no title by his purchase under the mortgage, all of which facts were known to the petitioner.

The committee remark in the first place, in relation to this branch of the subject, that the evidence was insufficient to establish the fact that the petitioner made the representations alleged in the declaration. Three witnesses testified concerning the proceedings at the sale; Azor Cole, Allen Warden, and Matthias Hufman. Cole testified that after the land was put up at auction Culver came in;

Avery asked him, (Cole,) to bid. Culver asked Avery about the title of the premises, and whether it was good. Avery replied, that he presumed it was good. Warden testified that when Culver came in he made some inquiries about the title. Avery went on to state about the title, and said the loan-office commissioners had taken the necessary steps when the mortgage was taken, to ascertain about the title, that they had taken Seward's affidavit that Seward's title was clear; and also that Seward produced a certificate from the clerk of the county, that there was no incumbrance. Then a question came up about a judgment. Avery said there had been a judgment in his favor against Seward. He (Avery) had got his pay on it. Eleazer Burnham had transacted all the business relating to that judgment. He (Avery) had spoken to to Burnham about it a few days previous, and Burnham told him the judgment would be no impediment upon the title, and he (Avery) presumed it would not, for Burnham knew all about it. In this testimony the witness, Hufman, substantially concurred. The committee think it is doing violence to the language used by Avery to construe it as a direct and affirmative allegation, that the premises were unincumbered, and that the purchaser would obtain a good title. But this might be regarded as, a limited and technical view of the subject, and the committee would not recommend any measure of relief, if, upon a review of the whole case, it shall appear that the petitioner, although he made no direct affirmation, had given a false coloring, or fraudulently suppressed any material fact within his knowledge, relating to the title of the premises.

The judgment under which the premises were sold being in favor of the petitioner himself, the representations made by him would at first view seem incapable of any explanation consistent with his entire innocence of the fraud charged upon him. But the testimony furnishes an explanation entirely satisfactory to the committee. The history of the judgment as proved on the trial is, that the petitioner, in May, 1816, left for collection, with Eleazer Burnham and Seneca Wood, attorneys, two notes made by Seward. That on the 17th May, 1816, Wood and Burnham issued a writ in favor of the petitioner against the said Seward. That on the same day Seward paid the costs of the capias, and executed at the office of Wood & Burnham a bond and warrant of attorney in the penalty of $220 condition for the payment of $110. That judgment was perfected in the common pleas of Cayuga in favor of the petitioner against Seward, upon and by virtue of this bond and warrant of attorney on the 22d day of May, 1816, with stay

of execution until September 1816. That on the 30th of September, 1816, an execution was issued to collect the amount received by the condition of the bond, with the costs of the suit; which execution was taken back by the attorneys from the sheriff, and does not appear to have ever been levied. That the petitioner on the 19th October, 1816, assigned the judgment to Eleazer Burnham, who then became in his own right the owner of the judg ment, and on the same day, paid and accounted to the petitioner for the debt and interest received by the said judgment. All this transaction took place, it will be recollected, before the execution of the loan-office mortgage. On the 7th December, 1816, Seward paid to Burnham $100 on the judgment. That the mortgaged premises were sold and conveyed on the 11th June, 1818, by Samuel Seward, to Hale and Peck, and Hale and Peck, or one of them, on the 9th of March, 1819, without the agency or knowledge of the petitioner, applied to Burnham and Wood to issue an execution upon the judgment for the balance due. The execution was levied under the management of Hale and Peck, upon the mortgaged premises, which were sold on the 13th May, 1819, to Hale and Peck for $33.21; who thereupon received a deed from the sheriff for the premises, whereby their title became perfect, and the loan-office mortgage was overreached and defeated. The testimony of David Thomas, the deputy sheriff, of Burnham and Wood and Hale himself, all excuse the petitioner of any agency or participation in, or knowledge of these proceedings, which there can be little doubt, were fraudulent on the part of Hale and Peck.

After Avery had advertised the premises for sale, in pursuance of the mortgage, Hale, as he testifies, had a conversation with Avery, in which they spoke concerning the judgment and the sale of the premises by execution. Hale contended that Avery ought not to sell the premises; Avery then called upon Burnham for information and advice, and was advised by Burnham that the sheriff's sale was fraudulent; that Hale and Peck had received from Seward a deed for his property, upon consideration that they should pay his debt; that they had taken out the execution to overreach the loan-office mortgage, and that from the information he, Burnham, had received, he was satisfied there was hugger mugger work about it, and advised Avery to sell the premises, on the ground that the purschase by Hale and Peck was fraudulent and void. The petitioner is not a lawyer, Mr. Burnham has long been a respectable counsellor; acting as it appears under his advice, the petitioner proceeded to sell the premises.

The fair import of all the evidence justifies the assertion, that at the sale Avery communicated all the above facts relating to the incumbrance, and gave merely his opinion that the sale on the judgment would be no impediment upon the title, which opinion he grounded upon the advice of Mr. Burnham, to whom he referred both for facts and for authority as to his opinion on the legal questions relating to the effects of the sheriff's sale. Whether the petitioner erred in opinion upon the legal effect of the sheriff's sale, depends upon the facts vouched to him by Burnham, but if it be admitted, the committee are satisfied that he committed no more criminal error in the sale, and that having taken every prudent measure to be correctly advised, the error is not such an one as to justify his being left under an unjust verdict for fraudulent and deceitful representations concerning the title.

The fact was proved on the trial, that Seward did produce to the commissioners a certificate of the county clerk, that the premises were unencumbered; this certificate was doubtless made by mistake, but it contributed with the affidavit of Seward, who was a reputable citizen, to induce the belief on the part of the petitioner, that the judgment was virtually satisfied.

It remains to be considered; whether the Legislature ought to afford any relief. It will be seen that the State has received the sum of seventy-five dollars, the avails of the sale of the mortgaged premises, of which the deed of the State gave no title. It would seem therefore to be just, that inasmuch as by the verdict this amount was recovered from the petitioner, he being an agent of the State, that amount, if no more, should be refunded to him.

Convinced that the petitioner has acted in good faith, and has without gross fault on his part, suffered the loss of the damages and costs recovered against him in consequence of acts done in the discharge of his official duty as a commissioner of loans, the committee deem it proper that he should be allowed in the settlement of his accounts as such commissioner the amount of damages and costs paid by him. But inasmuch as the grievance most complained of is the injury inflicted by the verdict upon his reputation, a reimbursement to him of the monies received by him on such sale, will perhaps be sufficient evidence of the confidence of the State in his integrity, the committee will not here urge the allowance a of sum greater than that amount.

The committee are sensible that the Legislature will hardly be willing to bestow upon this subject a degree of attention so close as to warrant their definitive action upon the subject, and that the Comptroller can with greater ease and probability of correctness examine into the matter. They therefore do not recommend that the Legislature shall grant relief in the first instance, but that a law be passed authorising the Comptroller to examine into the facts stated by the petitioner, and if in his judgment the petitioner in the transaction of such loan and sale, has acted in good faith, then that the Comptroller be authorised to audit and allow to him in the settlement of his accounts, all sums of money which he has been compelled to pay or expend in consequence of the prosecution of the aforesaid action at law against him.

The committee ask leave to introduce a bill in conformity to the views contained in this report.

All which is respectfully submitted.