Majority
p. 75Brown against Hinchman. ALBANY, Jan. 1812.
Headnote
Under the 4th section of the act (sess. 31. c. 204.) "for the recovery of debts to the value of 25 dollars,"a justice cannot issue a warrant against a freeholder or person having a family, on the oath of the plaintiff; but the proof of the defendant's being a~ bout to depart, or of the danger of losing the debt, must be by other and legat evi denceIN error, on certiorari, from a justice's court. Brown sued Hinchman, before a justice, by warrant, which was obtained on the oath of Brown, which satisfied the justice as to the propriety of issuing the warrant. The plaintiff declared on a pro. missory note. The defendant objected to the process which had been issued against him, and made oath that he was a freeholder withhi the county. The plaintiff was nonsuited, on the ground that being a resident within the county, he could not, in any case, sue afreeholder of the county, by warrant.
The warrant was obtained by virtue of the plaintiff's oath; and the act (sess. 31 c. 204. s. 4.) says, that if the plaintiff" shall prove to the satisfaction of any justice, that the defendant is about to depart," &c. he may have a warrant, though the defendant be a freeholder or inhabitant, having a family. Proof here, means legal evidence; and that cannot he the party's own
p. 76
oath, unless the statute expressly says so. Whenever the statute, as it does in several other places, admits proof by the party's own oath, the language of it is explicit; and the former ten pound act of 1801, relative to this point, said that the plaintiff should "prove, upon oath, to the satisfaction of the justice, that he was in danger of losing his debt, or really believed so," &c. All these emphatic words, which show that the party's own oath was intended, are omitted in the new act. Probably, the right had been abused, and the legislature considered it dangerous to allow an interested, or prejudiced person, or angry plaintift to sue out a warrant against any freeholder or inhabitant with a family, on his own oath. The temptation might be too strong to vex and op. press. The plaintiff was, the,refore, properly nonsuited, though upt for the reason assigned by the justice.
Judgment affirmed.