English v. Bonham , 15 N.J.L. 431 ( 1836 )

By the Court.

On the trial of the appeal, the party who is now plaintiff in certiorari, offered a witness who had not been sworn before the Justice, but whose evidence was insisted upon as newly discovered ; an affidavit whereof had been made, and filed by the parties now offering the witness. No objection appears to have been made to the witness, or to the evidence proposed to be given by him, except that the affidavit required to legalize such new additional evidence, had not been made in open court; but before a Judge at Chambers; and upon that ground, the Court of Common Pleas rejected the witness, and the evidence intended to have been given by him. The act of Assembly, Harr. Comp. 5, Section 4, does not designate the officer before whom the affidavit shall be taken, but simply says, the parties to the appeal, shall be confined to the same evidence that was offered on the trial before the Justice, “ unless the parties to the appeal, or either of them, shall, at the term to which the said appeal is made, file an affidavit with the Clerk of the. Court to which, &c.” No direction being given in the act of Assembly as to the person before whom such affidavit shall be made, we must be regulated in this matter by principle and analogy. The object of the affidavit is to enlarge the powers and jurisdiction of the Court of Common Pleas. Upon it, is to be founded an application to that court to let in evidence, otherwise inadmissible. The affidavit ought therefore to be taken in or before a proper officer of that Court. But it need not be taken in open court, unless so directed by statute. The Court of Common Pleas is a common law court, and affidavits to be read in that court, upon any trial or argument may be taken in open court, or before a Judge thereof at Chambers. Such is the constant practice in this court, where there are no statute provisions to the contrary. Munn v. Harrison, 2 Green’s R. 185. 2 Archb. Pr. 281. The judgment must therefore be reversed.

Judgment reversed.

Cited in Smith v. Abbott, 2 Harr. 362.