Scotten v. Fegan

Adams, J.

Although the plaintiff avers that Began falsely executed and issued his certificate, it is not claimed by him that his averment shows that Began acted in bad faith. We shall take the averment to mean, then, merely that Began made a false certificate as the result of negligence. So construing it, we have to say that in our opinion the petition is not sufficient.

The liability, as we view it, is a statutory one, and only such. We do not say that there would be no liability in the absence of a statute, but, there being a statute, the liability, we think, must be held to exist by reason- of it, and not to be greater or less than the statute provides. In the statute we find it defined in these words: “Any officer who knowingly misstates a material fact in either of the certificates above contemplated shall be liable for all damages,” etc. The petition, we think, cannot be held to be sufficient, unless an averment that one negligently misstated a material fact is *238 equivalent, to an averment that be knowingly misstated a material fact; and no one would claim that it is.

What should be deemed knowingly misstating a material fact is a different question. Fegan’s certificate states (as was necessary) that the persons executing the mortgage were personally known to him. Counsel upon each side have made a very able argument upon the question as to when a person can properly be said to be personally known to another. The question is not free from' difficulty. Personal knowledge of this kind shades off into that which cannot properly be deemed such.

But the question before us is simply one of pleading. The plaintiff, we think, should by his averment have brought himself within the language of the statute. What evidence would support the averments would be a question to be determined upon the trial. We think that the demurrer was properly sustained.

Affirmed.