Dyer v. Flint , 21 Ill. 80 ( 1859 )

Breese, J.

This is an action commenced by attachment against an absent and non-resident debtor, and default taken.

Several objections are made to the regularity of the proceedings. The first is as to the manner in which the affidavit is sworn to, and its substance.

The affidavit appears, on its face, to have been sworn to in Logan county—that is the county stated in the margin, and there is nothing in the record impeaching it. The jurat is signed by “ John Forsyth, Notary Public,” and it is a fair intendment that he was Notary Public of Logan county. The court trying the case would so intend; it would, ex-officio, take notice of the civil officers of the county in which it holds its sittings. Thompson v. Haskell, post, and cases there cited. By our statute, a Notary Public can administer oaths in all cases, and proof of his official character is not required. Stout v. Slattery, 12 Ill. R. 162; Rowley v. Berrian, ib. 200. In this last case it was objected, as it is here, that if a notary takes an affidavit which is to become the foundation of an attachment, he must authenticate it under his seal of office, and the 32nd section of chap. 9, R. S, (Scates’ Comp. 235,) is referred to as sustaining the position.

This section embraces three kinds of cases, one when the affidavit is made in the county where the suit is brought, as is this case, where proof of official character is not required, the court taking judicial cognizance of all who are authorized to administer oaths within the county; another, where the oath is made in a county other than the one where the suit is pending, in which case the official character must be proved ; and lastly, when the oath is made out of the State before any officer authorized by the statute to take the acknowledgment of deeds, in which case also, proof of his official character must be made. Their acts are to be authenticated in the same manner as in taking the acknowledgment of a deed.

It is insisted, however, that the record shows that the notary was actually a notary in Chicago, and not of Logan county, and that it so appears from a fac simile of his seal, as presented on the abstract. There is a representation in ink of a circle, within which are the words, executed with a pen, “ John Forsyth, Notary Public, Ill., South Chicago,” but there is nothing of that kind appearing in the record. The sheet attached by the clerk is no part of the record, which we can judicially examine. The intendment from the record is, that the jurat was made before a Notary Public of Logan county, an officer authorized by law to administer oaths, and we must so hold, and hold further, under the decision in Rowley v. Berrian, that his seal was unnecessary to the authentication. But there is to the jurat in this case, a scroll denoting a seal. Our statute, R. S.,chap. 75, title “ Notaries Public,” (Scates’ Comp. 794,) does not require they shall have a seal, and by chap. 76, title “ Oaths and Affirmations,” (Scates’ Comp. 796,) which gives to Notaries Public power to administer oaths in all cases, does not require a seal to their attestations.

But a notary cannot take the acknowledgment of a deed if he has no official seal, for the statute requires, R. S., chap. 24, sec. 16, (Scates’ Comp. 965,) he shall have a seal by which such an act shall be authenticated, but in no other case.

The cases referred to in 4 Blackf. 185, and 6 ib. 357, were decided under the statute of Indiana, which expressly requires all notarial acts to be under the official seal of the notary.

It is urged, that perjury could not be assigned on this affidavit for the reasons stated, that it purports to have been sworn to in Logan county, and it is inferable from the circumstances that it was made in Cook county. If made in Cook county, and before a competent officer, surely perjury could be assigned on it, though purporting to have been made in Logan. 3 Greenl. Ev., page 181, sec. 192. But as to the objection that the affidavit is not certain, or positive, as to the indebtedness, but rests wholly on information and belief, we think that is well taken.

Our statute is in these words : If any creditor, his agent or attorney, shall file an affidavit in the office of the clerk of the Circuit Court of any county in this State, setting forth that any person is indebted to such creditor in a sum exceeding twenty dollars, stating the nature and amount of such indebtedness as near as may be, and that such debtor is not a resident of this State, it shall be lawful for the clerk to issue a writ of attachment, etc. Scates’ Comp. 228.

These requirements of the statute must be fulfilled. The creditor or agent making the affidavit, cannot rely upon hearsay as to either. He must positively allege both the non-residence and the indebtedness—its nature and amount, as near as may be—as near as the peculiar kind of indebtedness will enable him to do. Information and belief cannot supply the place of a positive allegation that the defendent “ is indebted,” or, that he is non-resident. As to the first, if an agent makes the affidavit, his conscience may be relieved by stating his means of knowledge, by stating as appears from his certain note signed by him, or from other evidence in possession of the agent.

We have found no case sustaining the view of the attaching creditor’s counsel, except the case of Ker v. Philips, 2 S. Car. Law Reports, 197, in which, in an affidavit for an order to hold to bail, a majority of the court held that where the plaintiff resides in a foreign country, an affidavit made by his agent in South Carolina, that he, the agent, “ is informed and believes that the defendant is indebted to the plaintiff,” is sufficient. In that State, the statute referred to does not seem to require a positive statement of indebtedness, as in ours.

We have no power to release parties from the requirements of a statute, or to relax a rule therein prescribed. A positive averment of indebtedness and of non-residence being required, whether the affidavit be made by the creditor or his agent, we cannot dispense with it, however much it might accommodate parties, suing as well in their own right as in autre droit. We must adhere to the words of the statute, leaving to the legislar ture, where it belongs, the question of any change or modification in it, that may be desirable or necessary.

In the action of replevin, the statute provides, (Scates’ Comp. 226,) before any writ of replevin shall issue, the person bringing the action, or some one in his or her behalf, shall make oath or affirmation before the clerk of the Circuit Court, or any justice of the peace of the proper county, “ that the plaintiff in such action is the owner of the property described in the writ, and about to be replevied, or that he is then lawfully entitled to the possession thereof,” etc. In such case, the affidavit of ownership, if made by the agent, must be as positive as if made by the owner himself. Frink v. Flanagan, 1 Gilm. R. 38.

We think, as the phraseology of the two statutes are identical, the affidavit for an attachment against a non-resident debtor, whether made by the creditor himself, or by his agent, must allege in positive terms the indebtedness, as well as the non-residence. Nothing short of this would seem to fulfill the requirements of the statute.

For this error the judgment of the court below is reversed, and the cause remanded, with leave to amend.

Judgment reversed.