This case is supposed to be within the principles which governed the decision in Yates v. Joyce, (11 Johns. Rep. 140.) That case came before the court on demurrer, and all the averments contained in the declaration were, of course, admitted. The declaration, in that case, averred the insolvency of the defendants in the execution ; that they had no other estate or property than - the lands on which the judgment was a lien; and that the plaintiff, by the waste committed by the defendant, was injured, and thereby deprived of recovering a part of his judgment.
In the case now before us, it was offered on the trial to prove, that the mortgagor was insolvent, and had no other property *215than the mortgaged premises out of which the debt of the plain- ° . „ , , . , tiff might be satisfied; but there was no averment in the declaration to warrant such proof. These vrere material and indispensable facts, in order to give the plaintiff a right of action; and to allow this proof without the averment, would be taking the defendant by surprise. He would not have notice to come prepared to disprove or explain any testimony that might be given on the trial on these points. In the case of Yates v. Joyce, the decision is placed on the ground that the plaintiff was actually damnified by the fraudulent misconduct of the defendant. But from the proof in this case it appears that the mortgaged premises were worth more than the mortgage money, at this time, since the removal of the house and barn. There is no evidence, therefore, that the defendant intended, or has, in fact, deprived the plaintiff of the recovery of his money. The evidence offered was properly excluded „ for the want of proper averments. The motion to set aside the nonsuit must be denied.
Motion denied.