58 N.J.L. 120 | N.J. | 1895
The opinion of the court was delivered by'
The jurisdictional requirement that the justice of the peace shall have received proof of some violation of the statute is not satisfied by an affidavit made upon information and belief. This is conclusively established by
These and many other cases hold, with respect to divers statutes, that the word “proof,” when used in a legislative enactment, means “competent and legal evidence,” or, in other words, testimony that conforms to the fundamental rules of proof, one of which excludes “hearsay evidence,” however trustworthy the informant or however implicit may be the deponent’s belief in the truth of what he has heard.
That this rule is both understood and applied by the lawmaker is shown in those enactments that specifically call for a lower degree of proof, as, for instance, the Attachment act and the act concerning supplemental proceedings. The act before us is, however, so explicit that were no authority extant, the same conclusion must be reached. Thus, the thirty-seventh section provides that if the violation occur in the presence of any of certain officers, the defendant may be arrested without warrant by such officer, whereupon the justice may hear the case after receiving affidavit in writing of the commission of the offence made by the officer that saw it, a provision that would be meaningless if belief based upon information was of itself sufficient. The imposition of the penalty, which is $20- for each violation, must logically rest upon the same sort of proof as the jurisdiction. So that, if a deponent who did not witness the actual violation of the law may, upon belief, institute one of these actions, he may, upon a like belief, speculate as to the number of penalties incurred by the offender, with respect to which, particularly in the instance of game killed, all of the presumptions of fact are that even the lowest estimate would be a legal injury to some defendants.
The justice was without jurisdiction and should have so ruled. The order of the justice is reversed, and the complaint dismissed) with costs.
