Money v. Tobias — 12 Johns. 422

Majority

p. 422

Money against Tobias.

Headnote

A justice cau - jiot, on his own knowledge,issue a warrant, at the suitof a non-resident plaintiff, without oath.

A written request to the justice, to let the plaintiff have a warrantnnd that the party subscribing would be answerable forthecostjsnot such security as is required by the statute to authorize the issuing a warrant, at the suit of a non-resident plaintiff.

"IK ERROR, on certiorari to a justice’s- court.

• Money, the defendant below, was sued by warrant j and, when brought before the justice, he inquired whether the plaintiff had made the oath required upon issuing a warrant, accord-, ing to the statute. The justice - answered, that he had not, but that he was satisfied that the plaintiff was a non-resident, without any oath of that fact; The defendant then moved for a nonsuit for that cause, which was overruled. The defendant then objected, that the warrant had been issued in favour of a person claiming to be a non-resident, without giving security according to the statute, and moved for a nonsuit on that ground. The justice said that bail had been given, and produced a paper, op which was written as follows: “ Mr. Brock—Please let Mr. Tobias have a warrant, and I will be answerable for the cost. John Holly.” The defendant objected to this, as insufficient security, but the justice decided that it was legal and sufficient.. Issue was joined, a trial had, and judgment given for the plaintiff.

The statute is express and imperative, that, in case of a non-resident plaintiff suing by warrant, the fact of non-residence shall be sworn to by the party applying for the warrant; and, also, that a non-resident plaintiff, suing by warrant, shall give security for the payment of any sum which may be adjudged against him, as a condition of his right of suing by warrant. (See act, s. 4., with the proviso, vol. 1. 388-9.)

The justice had no right to dispense with the oath, under pretence that he was satisfied of the fact without oath; ( 4 Johns. Rep. 228 .;) and it is equally clear, that the written memorandum of Holly was not such security as the statute requires. It was a promise to pay the cost of a warrant, without specifying in what suit. The statute requires security, not merely for costs, but “ for any sum which may be adjudged against the plaintiff.”

Besides, the defendant .below was unfairly surprised upon the trial, by a very special claim, which the plaintiff did not disclose until the defendant had pleaded, and several witnesses had been examined; and which, if it had been stated in proper season, might have induced the defendant to ask for an adjournment,, or for a jury. The judgment ought to be reversed.

Judgment reversed.