Hunt v. Lucas , 99 Mass. 404 ( 1868 )

Chapman, C. J.

The action is upon a promissory note; and the defendant moves that he may be allowed to file an answer and defend the action without filing the affidavit required by the Gen. Sts. c. 129, § 45. The alleged ground of the motion is, that the statute is unconstitutional. The articles of the Constitution which the defendant’s counsel refers to are in the Declaration of Rights: Article 1, which declares the right of protecting property; article 10, which declares the right of being protected in the enjoyment of property according to standing laws; article 11, declaring the right of having recourse to the laws for injuries, and obtaining right and justice completely and without denial; articles 12 and 15, declaring the right of trial by law, and by jury. These clauses are to be construed liberally in favor of the rights of the citizens; and if the statute is in conflict with any of them it is void.

The defendant contends that, without making affidavit, he has a right to appear in court, and to require the production of the plaintiff’s proof, and the judgment of the court upon the effect and sufficiency of that proof. If this position is correct, the objection to the statute goes further than the defendant alleges.' The requirement as to the affidavit is, that after ten days, or on the last day of the term, the court shall enter a default, unless the defendant, or some one in his behalf, files an affidavit that he verily believes that the defendant has a substantial defence to the action on its merits, and intends to bring the same to trial. But, if such an affidavit is filed, the defendant is not thereby permitted to require the production of the plaintiff’s proof, or the judgment of the court upon it. By Gen. Sts. c. 129, §§ 17, 20, he must file an answer, which shall deny in clear ana express terms the plaintiff’s allegations, or declare his ignorance, so that he can neither admit nor deny, and leaves the plaintiff to prove the same; and which shall declare in clear and precise terms such substantive facts as he intends to rely upon in his defence. Therefore, if the affidavit were dispensed with, the defendant would still be obliged to file a written answer, signed by himself or his counsel. Unless he is in fact ignorant whether he made the note, or believes he did not make it, he cannot require the plaintiff to prove its execution, without signing and putting on record a false statement; and this would be, to a truthful and honorable person, hardly less objectionable than making the statement under oath. Nor can he set up any defence in avoidance of the note, without making a similar statement of the matter relied upon. The required statements of the answer, in order to enable him to defend, must be much more particular than the affidavit. But the objection goes still further. It lies against all the written pleas which defendants have been obliged to file in order to put the plaintiff upon proof of his case, not only ever since the Constitution was adopted, but ever since written pleadings were in use.

The system of special pleading was intended to require of parties written statements of what they believed to be true. But in some cases the common law required that a defendant should not only state his defence, but make oath to it. In actions of debt, and in several other species of action, the plaintiff might require him to wage his law; and this must be done upon oath. Bac. Ab. Wager of Law. In suits in equity, a defendant has always been obliged to make oath to the truth of his answer; and our statutes relieve him from this requirement at the option of the plaintiff, and not otherwise. Other instances might be cited where sworn statements and pleadings have been required. These provisions were more stringent than that of our statute requiring an affidavit of defence. But, when our Constitution was framed, they had never been regarded as encroachments on those rights which are declared in the clauses above referred to. Nor is there any reason to believe that the Constitution was designed to prohibit the legislature from enacting reasonable laws in regard to pleadings in civil actions, or from requiring averments to be supported by affidavits.

But the Constitution also declares that every subject of the Commonwealth ought to find a certain remedy, by having re course to the laws, for all injuries to his property, and ought to obtain right and justice promptly and without delay, conform ably to the laws. Before the enactment of the statute requiring an affidavit of defence, a creditor who brought an action upon an undisputed claim was subject to great and unreasonable delay; for it was a very general practice for defendants to appear and set up a defence for the mere sake of delay, although they knew they had no real defence, and had no intention to bring the cause to trial. The requirement in regard to the affidavit was designed to remedy this evil in the administration of justice; and we can see nothing unreasonable in it.

The defendant alleges that the affidavit is in practice regarded but as an empty form; that it is a bounty on crime and an encouragement to villainy; and has utterly failed of its purpose. That these are mistaken assertions is shown by the dockets throughout the Commonwealth. Soon after the statute went into operation, that class of cases in which pleas had been filed for mere delay disappeared, and we believe that there are very few cases where either parties or their attorneys could be induced to make affidavit, or file a false allegation in an answer, for the mere sake of delay. An attorney who will countenance such an act violates his duty.

The affidavit is very general; and in all cases when a defendant or bis agent verily believes that the plaintiff has not a legal right to maintain his action for the cause alleged in his writ, upon the legal principles which govern the decision of causes in courts of justice, and intends to make a defence, he may safely make the affidavit. An oath requires that the substance, and not the mere form, of truth should be stated. Thus, when a jury returns upon oath a verdict that the defendant did not promise, or disseise, or is not guilty, it means only that the promise, or the disseisin, or the guilt, is not proven by legal evidence ; this being the point in issue.

If it be said that the statute is unequal in requiring the defendant to take an oath, while the plaintiff is not required to do so, the answer is, that practically no great evil arises from permitting a party to commence an action without making an affidavit, for the expense and risk of bringing an action which he knows to be groundless, and paying the expenses in advance, is generally a sufficient check upon him. But defendants have had no such check; and the abuse occasioned by the delays which they have been able to obtain has been very great. The affidavit has proved to be expedient and useful; and there is no ground for regarding it as unconstitutional.

Judgment for the plaintiffs.