It is very evident that the plaintiffs can recover in this action only in case they establish the making of the defendant’s contract by him with intent not to pay for the work done, because he-made no false representations. A trial by jury, therefore, affords a much better forum, and more means of determining that question, than an argument on affidavits.
It is in evidence without contradiction, that the defendant was. worth $50,000 in October last, borrowed $35,000 of his mother, received over $31,000 for property sold by him, and shipped $25,000 worth of property for Europe, making $140,000, passing through Ms hands.
Assuming that the works cost him nearly $100,000, of wMch $9,000 remains due to the plaintiffs, and $10,000 to the Allaire Works; the difference of $60,000 is unaccounted for, as well as the defendant’s present indebtedness of $70,000, except by about $8,000 in manufacturing oil and expenses, and $3,400 in a speculation, and his superintendent’s salary.
The defendant also claims that his mother advanced about $23,000 more to him, and to pay off liens and debts, making *400in all, even assuming Ms losses to have been $20,000, at least $63,000 unaccounted for, besides Ms present debts.
Under these circumstances, the defendant was bound to absolve himself from all suspicion, by showing the different sums paid, and to whom, and for what liens by his mother, to make up the amount of her purchase money. Instead of which we have only a general statement by his father of payments.
It is a circumstance of suspicion, that the defendant conveyed his factory to his mother before the plaintiffs had completed them work, and before he had ascertained, according to his statement, that they were a failure. He has also remained in possession, in fact, since the conveyance, carrying on the works as agent.
If the defendant is innocent of any fraud, it is no great hardship to be out on bail until the trial, and then he can .entirely absolve himself.
The motion must be denied with seven dollars costs, without prejudice to a renewal on additional affidavits.