Janes v. Miller

21 N.H. 371 | Superior Court of New Hampshire | 1850

Gilchrist, C. J.

It is enacted by section 8, ch. 185, Rev. Stat., that no person shall be arrested upon any writ or execution unless the plaintiff or some person in his behalf shall make an affidavit before a justice, on the back of such writ, &c. Under this statute it was decided in the case of Kidder v. Farrar, Cheshire, December term, 1849, that, upon every process on which a party is arrested, whether writ or execution, there must be an affidavit, to justify the arrest. Where a party is arrested on an execution, it is not enough that there has been an affidavit on the writ in the suit in which the execution issued. A long time may have elapsed between the commencement of the suit and the recovery of judgment. Circumstances may have changed, and that which the plaintiff might conscientiously have sworn to, when his action was brought, may no longer be true in his belief. The obvious purpose of the statute was, although its meaning is not very lucidly expressed, that no arrest for debt should be made, unless in a case where the oath of the plaintiff renders it probable that a necessity exists for an arrest, in order that the purposes of justice may not be defeated.

In the present case there was no affidavit upon the execution, which brings it directly within the decision in Kidder v. Farrar. The execution therefore was improperly used, as according to the decision just made in Naramore v. Miller, if the bail desire to- surrender the principal there should be an officer who has competent authority to arrest him upon the execution, which he could not do unless he had an execution authorizing the arrest by having upon it such an affidavit as the law requires.

According to the provision made by the case, the judgment of the Court therefore is, that the

Fxeeution he set aside.