28 N.J.L. 121 | N.J. | 1859
Tbe opinion of tbe court was delivered by
In this case the affirmation of the plaintiff is particularly relied on for proof to obtain tbe order for tbe capias ad, respondendum, although there is super-added the affidavit of a third person to certain facts, strengthening somewhat that of the plaintiff.
It is objected, in the first place, by defendants’ counsel, with considerable earnestness and ingenuity, that the affirmation of the plaintiff is not sufficient, and cannot be received to prove the fraud; this he insists must be proved by some disinterested person, and that tbe proof to this point must be such as would be legally admissible in a court of law, and refers to the case of McKernan v. McDonald, 3 Dutcher 541, to sustain him in this position.
In the second place, the counsel for the defendants
In another case, argued at this very term on a similar motion, the plaintiff’s counsel, doubting perhaps the sufficiency of his proof before the judge who made the order, insisted upon the propriety and right of the plain
Reason, however, need not be called in aid to determine the practice in this case. We have all the reason in the matter summed up in a few brief words in the 83d section of the practice act of 1855, (Nix. Dig. 647, pl. 203,)—“ Whenever, in actions founded upon contract, application shall be made to set aside the writ upon which the defendant was arrested, or to discharge him from arrest, the court or judge hearing the application shall consider mid determine the sufficiency in fact, as well as in law, of the proof upon which the order for issuing such writ was founded? The words have a retrospective application only, and the court or judge to whom the application for discharge is made acts in an appellate capacity, being authorized to review only—to determine upon the law and facts already before the court, and not to take cognizance of new matters transpiring since the arrest, nor to hear and determine upon facts existing at the time of making the order, but not at that time put in evidence ; to determine the legality and propriety of the order by the proof upon which the order for issuing such writ was founded,” and by that only. Nothing can be plainer, and more consistent with the reason and propriety of the thing, than that a judge or court, on a motion to quash or discharge, is limited and confined to a consideration of the proof only upon which the order was granted; and this we hold to be the law and practice.
Upon the third and last objection, that the affidavits 'are insufficient in themselves, we think the defendants can claim' no discharge. The facts set forth clearly malee out a prima facie case of indebtedness, which is all that is required by the act. 'On this point they set forth the false,