Hubbard & Cutler agt. The National Protection Insurance Co. tion above taken. Mr. Justice PARKER, in speaking of the verification of a pleading by the attorney, in his opinion in the last case, says, that "in all cases the attorney must state, in his verification, his knowledge, or the grounds of his belief, and the reason why it is not made by the party." The case of Roscoe agt. Maison, (7 How. Pr. R. 121,) holds, that where the attorney resides in a different county from the party, that is a sufficient reason for allowing the attorney to verify the pleading; and perhaps an inference may be drawn from the case that, under such circumstances, the verification may be made by the attorney, whether he has any knowledge of the facts stated in the pleading, or any grounds for believing they are true or not. But I do not think that the learned justice who wrote the opinion in that case, intended any such inference should be drawn therefrom. The attorney, in his affidavit, swore that the facts stated in the pleading were as well, and some of them more fully, known to him than to the party. Perhaps the justice considered that a sufficient statement of the knowledge of the attorney, or of the grounds of his belief. If otherwise, this case is in opposition to Stannard agt. Mattice, and Treadwell agt. Fassett, in the last of which cases I think that Mr. Justice HARRIS has given a correct exposition of the section of the Code under consideration. The affidavit on the part of the plaintiffs, that they have material witnesses residing in the county where the venue was laid, is no answer to this motion. After the venue is changed to the proper county, the plaintiffs can move to change it back to Erie county, if the convenience of witnesses requires it. On this motion, the convenience of witnesses cannot be considered, or taken into account. The defendants have had no opportunity to be heard on that question, or at least to present any affidavit in relation to it. It may very well be, that a large majority of the witnesses in the cause reside in Saratoga county; and the defendants should have an opportunity to show it, if it be so. (Park agt. Carnley, 7 How. Pr. R. 355.) That part of the motion asking for an order that the answer served stand as the answer in the cause, must be denied. If Sherman and others agt. Partridge and others. the answer was well served, the order is unnecessary; and should the plaintiffs proceed in the cause, disregarding the answer, the remedy is by motion to set aside the proceedings for irregularity. If it was not well served, the defendants must move the court, as a matter of favor, for leave to answer, notwithstanding the time to answer has expired; and the motion must be founded upon affidavits excusing the default, and showing a defence upon the merits. No merits are sworn to in the affidavits read in support of this motion. The defendants are entitled to an order changing the place of trial to the county of Saratoga, as the county where it should have originally been laid. No costs are allowed to either party. I am inclined to think, that in cases of this kind, where a plaintiff, after a demand made, does not himself change the venue to the proper county, either by stipulation or an amendment of his complaint, or by an application to the court for that purpose, he should be charged with the costs of the motion when the defendant moves for the change, and that the costs should not abide the event of the action. But in this case, as the defendants have asked for more than they are entitled to, costs should not be allowed. SUPERIOR COURT. ISAAC SHERMAN and others agt. WILLIAM PARTRIDGE and others. An order of interpleader, under § 122 of the Code, can only properly be made when the whole controversy turns upon the right of property: that is, upon the question whether the plaintiff in the suit, or the claimant whose substitution as the defendant is desired, is the true owner of the debt, fund, or other property for which judgment is demanded. Where the plaintiff relies on, and has averred in his complaint, a special promise or contract to pay the value of the property sold to the defendant, and the same property is claimed by a third person as being the real owner, the latter Sherman and others agt. Partridge and others. cannot be substituted or made a defendant in the action, because it would deprive the plaintiff of his legal remedy; and might involve the sacrifice of his legal rights, without affording him any equivalent or compensation. Where a plaintiff seeks to recover a debt arising upon contract, the claimant who seeks to be substituted a defendant, must, in the language of the Code, be "a third person, not a party to the suit, making a demand for the same debt." A demand by such third person for the identical property as owner, and that the plaintiff had no authority to make the sale to the defendant in the action, is not ground for an interpleader. As owner, he must seek his remedies against the defendant, or those into whose hands the property may have passed. In such a case, if the defendant in the action has not rendered himself absolutely liable upon his promise, and the sale of the property made to the plaintiff, through whom defendant derived title, was fraudulent and void, the title of the true owner may be set up by the defendant as a full defence. New-York Special Term, February, 1855. THIS was a motion under § 122 of the Code, for the substitution of one Henry Delafield as the sole defendant, and the discharge of the present defendants from all liability to either party, upon their paying into court the sum of $340.17. If this motion should be denied, the application then was, under the same section of the Code, that Delafield should be made a codefendant. The allegations of the complaint were, that one Philip N. Searl had sold to the defendants a quantity of logwood of the value of $500; and, for a valuable consideration, had transferred and assigned to the plaintiffs his claim against the defendants arising from the sale. That the defendants, in consideration of this assignment, had expressly promised the plaintiffs to pay to them the price, or proceeds, of the logwood, which it was averred amounted to the sum of $499.11; for which sum, the defendants having refused to pay upon request, judgment was demanded. The application of one of the defendants, upon which the motion was founded, stated, (interalia,) that one Henry Delafield, a person not a party to the action, and without collusion of the defendants, demanded of them the proceeds of the logwood, alleging that it belonged to him, and that Searl had not Sherman and others agt. Partridge and others. the possession as owner, nor had any right or authority to sell the same, or assign the price thereof. The affidavits, which were read on the part of the plaintiffs in opposition to the motion, stated the following facts:—That they had sold to Searl, for cash, a quantity of staves, and that he gave them this check for the price, the payment of which was refused. That he then gave them an order on the defendants for a definite sum, as the price of the logwood. That the defendants declined to pay the order, on the ground that the logwood had not yet been fully weighed, and that it was not certain that the price or proceeds would amount to the sum mentioned; but that they expressly promised to pay to the plaintiffs the whole proceeds when ascertained, provided the plaintiffs would obtain from.Searl a general order or assignment of his claims. That such an assignment-which was set forthwas accordingly obtained, and that the plaintiffs, relying upon it, and upon the promise of the defendants, had omitted to obtain from Searl, who is now insolvent, a return of the staves sold to him, as they otherwise might and would have done. It was also claimed, on the part of the plaintiffs, that the defendants had been indemnified against the plaintiffs' claim by Delafield. I. T. WILLIAMS, for plaintiffs. DUER, Justice. Taking into consideration the facts set forth in the plaintiffs' affidavits, and which I think might properly be given in evidence to sustain the averment in the complaint of a special promise, I am clearly of opinion that the motion for the discharge of the defendants, and the substitution of Delafield as the sole defendant, must be denied. An order of interpleader, under the 122d section of the Code, can only be properly made when the whole controversy turns upon the right of property: that is, upon the question whether the plaintiff in the suit, or the claimant whose substitution as the defendant is desired, is the true owner of the debt, fund, or Sherman and others agt. Partridge and others. other property for which judgment is demanded. When the plaintiff insists, as in the present case, that the defendant, by a personal contract or otherwise, has rendered himself liable in all events for the debt sought to be recovered, and is precluded from setting up the title of a third person as a bar, it would be manifestly unjust to make the order, since, in the language of Lord COTTENHAM, in Crawshaw agt. Thornton, (2 M. & C. 19,) it would deprive the plaintiff of his legal remedy, and might involve the sacrifice of his legal rights, without affording him any equivalent or compensation. As Applying these remarks to the case before me, it is only in an action against the defendants themselve hat the question, whether they have not rendered the absolutely liable to the plaintiffs for the price of lood, can be determined so as to secure to the plaintiffs teght of aphe court of ultimate jurisdiction. To deprim of their right by putting an end to this action in its resent form substituting Delafield as the sole defendant, s to me would be an arbitrary and unwarrantable exercial power. against Delafield, the plaintiffs would only recover upon proof that Searl was the owner of the logwood, or had full authority to make the sale; and the question whether, even upon the supposition that Searl was not the owner, and had no such authority, the defendants were not bound to pay to the plaintiffs the stipulated price, would not be determined at all; and thus the plaintiffs might be deprived of the judgment to which, had the action retained its original form, they would have been entitled. Whether, if the plaintiffs shall succeed upon the trial in establishing the facts set forth in their affidavits, the defendants will be precluded from setting up the title of Delafield as a bar to a recovery, is a question upon which I am not to be understood as expressing or intimating any opinion. I only mean to say, that as the question of the absolute liability of the defendants is distinctly raised by the complaint and the affidavits, I have no right to decide it upon this motion, and thus to prevent its decision in the regular progress of the cause. The provisions in § 122 of the Code, are founded upon the |