Parker v. Ogden

| N.J. | Nov 15, 1806

Lead Opinion

[Pennington, J.

— May not the defendant be arrested on a false affidavit, and the plaintiff’, holding the affidavit in his hand, refuse to file it, and thereby escape punishment for his perjury, and yet, the defendant kept in gaol until the ensuing term.]

Some rule of Court, may prevent any evil arising from that source. As to the objection, on the score of the affidavit’s not containing the cause of action, Mr. Williamson said, that the laxed state of our practice did not require a cause of action to be specifically stated; that the uniform practice bad been otherwise. That however defective the original affidavit might be, yet that those defects were were abundantly cured by the supplemental affidavit now produced. That the Common Pleas in England, were in the habit of admitting supplemental affidavits, Barnes 100, 2 Blac. Rep. 850, and he saw no reason why this Court should not follow the same practice. He understood the *110rule te be, that when the original affidavit was so defective that perjury could not be assigned on it, then its defects cannot be supplied by supplemental affidavits; but in other cases they may, 2 Wil. 224. The affidavit .in this cause, if not sufficient of itself, as he liad before contended, yet it was such as perjury might be assigned on it; and, therefore, according to the doctrine in 2 Wil. its defects might be aided by a supplemental affidavit. As to the objection, on the ground of the money not being all due at the time of issuing process, that subject could not be brought into controversy, as our act of Assembly had interdicted all contradictory affidavits. That no objection could arise against reading the supplement affidavit, on the ground of want of notice, [*] or officer before whom they were taken. That the supplemental affidavit, like the original, did not require notice; and that the act of Assembly admitted affidavits to hold to bail, to be taken before a notary public in another state, an officer before whom the affidavit in question was taken ; and that it being a supplemental affidavit, made no difference, it was still an affidavit to hold to bail. On the whole, he trusted that the plaintiffs would not be deprived of the means of obtaining their debt, by the discharge of the defendant.

Kirkpatrick, C. J.

— Said, that he put his opinion on two points : First, That the affidavit ought to contain the cause of action, and to state it. with it witli so much particularity, as that it may appear, not only that there is a debt, but that there is a debt actually due, for which an arrest may lawfully he made. Second, That the affidavit should be filed before the defendant is arrested; that this is required by the act of Assembly, and that for the purpose of prosecuting the plaintiff for perjury, in case it is false. He would not give any opinion as to the total exclusion of suppleméntal affidavits; because, he was not prepared to say but that in some cases, supplemental affidavits might be proper. The reasons he had already stated, were sufficient, in his opinion, to discharge the defendant on common bail.

Concurrence Opinion

Rossell, J.

— Concurred in opinion, that the defendant ' be discharged on common bail, (a)

Pennington, J.

— I am clearly of opinion, that the original affidavit is defective; the plain meaning and intention of the statute is, that no man shall be deprived of his liberty in a civil suit, until affidavit be made of the cause of action, and that affidavit filed. The affidavit must be in the custody of the law, that if false, the person making it may be *111prosecuted for perjury : and also, that the defendant may have his remedy if insufficient. The affidavit must be such, on which perjury may be assigned; it ought not to be entitled in any cause, no cause being depending at the time of taking it; [*] this affidavit refers to the plaintiff, but no plaintiff is even mentioned in the entitling the affidavit; it is too uncertain, perjury cannot be assigned on it. The cause of action is particularly required by the act of Assembly, to be set out in the affidavit, and the reason and propriety of the thing call for it; notwithstanding all this, if these defects can be cured by supplemental affidavits, it will be necessary to look into the additional affidavit taken in this cause. It is true, that the Court of Common Pleas in England, admit supplemental affidavits to explain ambiguities in the original affidavit, but not to supply substantial defects: the Court of King’s Bench, whose practice we have adopted, will not even do that, and our practice act, prohibiting the Court from going into the merit of the original affidavit is conclusive on the point; and shews that the learned Judge,* who drew the act, had the practice of the King’s Bench, in view. I am clearly of opinion, that the plaintiffs must stand or fall by their original affidavit, that being defective — and even defective as it is, not filed on, or at the time of arrest, that the defendant must be discharged on common bail. Defendant discharged.

Vide 3 Halst. 34, 6 Halst. 196, Writ quashed.

The Hon. William Patterson, Esq., deceased.