Bissell v. Hills , 3 Wend. 389 ( 1829 )

By the Court,

Marcy, J.

The only question presented yjj 0f exceptions in this case is, whether a party, applying in his own behalf for a warrant under the fifth section of the act for the better and more speedy re covery of debts of the value of fifty dollars, (Statutes, vol. 6, 281, c. passed in 1824,) can make, by his own oath alone, the satisfactory proof therein required, that the defendant is about to depart from the county, or that the plaintiff will be in danger of losing his demand unless the process be by warrant.

It is true that this court, in expounding similar expressions in the fourth section of the justices’ act of 1808, did decide that the proof. required, meant legal evidence, and that the party’s own oath is not such evidence, (9 Johns. R. 75 ;) but in the case of Terry v. Fargo, (10 Johns. R. 114,) the court say that in making the former decision they did not advert to an amendment of that section made in the year 1810, which expressly allows the party applying for a warrant to be examined on oath. The section of the act of 1824, upon which this question arises, embraces both the fourth section of the act of 1808 and' the subsequent amendment of it, and must have the same effect united that Was given to them when disjoined in the case of Terry v. Fargo. The practic e, I believe, has been very general, perhaps universal, to take the plaintiff’s own statement under oath, upon which the justice determines the necessity and propriety of issuing a warrant-The legislature of 1813, which consolidated these two provisions and that of 1824 which continued them thus consolidated, knew of the construction given to these provisons by the supreme court and the practice of magistrates under it, and by retaining the language unchanged, must be considered as giving their sanction to that construction. The same provision, without any essential variation of language, is retained in the Revised Statutes, (vol. 2, p. 229, § 18, 19.) Not o0nly this court, but the legislature in several instances has, as I conceive,' considered the oath of the party, proof, which may authorise the justice to issue a warrant, in the cases specified in the fifth section of the act of 1824.

Motion to set aside nonsuit denied.