Bridgeford v. Steam Boat Elk

6 Mo. 356 | Mo. | 1840

Opinion of the court delivered by

Napton Judge.

The complaint of Bridgeford, Rickets & Co. against the steam boat Elk, was instituted according to the provisions of the act'to provide for the collection of demands against boats and vessels.

The defendant, in the court below, before the time for pleading expired, filed a motion to quash, because of the insufficiency of the affidavit. Before the motion came on to be heard, plaintiff took judgment by default. The motion to quash was afterwards heard by the court, and the court set aside the judgment by default, and quashed.

The view which I entertain of the value of the affidavit, renders any opinion in relation to the regularity of the pro_ ceedings unnecessary. The affidavit annexed to the com. plaint, was in the following words: “James M. Buckley, being duly sworn, by me the subscriber, on his oath deela-reth and saith, that the above complaint is true, to the best, of his knowledge and belief.”

That the affiant could, on this affidavit, be convicted o*' perjury, if the facts stated in the complaint were untrue, [ entertain no doubt. Commonwealth vs. Cornish. 6 Binn. R. 249. He could' not protect himself under the pretence that he had no knowledge, and consequently no right to believe any thing about it. If a man undertakes to swear to a matter of which he has no knowlepge, he is perjured, af~ though what he has swoi’n, turns out to be true. 3 Inst. 166.

vi/required" to be made to ofGthe” plaintiff, in a suit instituted mi-der the act “boats^nd vessels,” (R. H)3^fif ’not made by. the HeU^houid”1 show what means the af-fiant had of. truth'of ’ the particulars tne°compiaint

But, I apprehend-that true policy requires that, something, more than a liability to prosecution, should be the test of the sufficiency of these affidavits. Mr.,Chitty observes in relation to affidavits to hold to bail, to which the affidavit in this case may be regarded somewhat- analagous, that, “the strictness required in these affidavits is not only to guard defendants against the consequences of perjury, but, also, th°se who njake ihe affidavit against any misconception of the law.” Chitty on bills, 348.

It is obvious, in this case, that the party who made the af-£¿avit. not being party complaining, does not show what , , ° „ , . , means he had ot knowing the truth ol any oí the particulars specified hr the complaint, whether.he was clerk-, book keeper, or agent, and coupled with the qualifying words at the end °f his affidavit, may have been made under a great misconception of the construction which the law would put upon it. It is well, therefore, to guard against the possibil-p.y 0p miSCOnception on this subject, and the defendant has J -1 J rights which should not be jeopardized by such general, and apparently qualified, oaths..

The court did not err, then in quashing this complaint. — • J udgraent affirmed.