Phillips v. Wood , 31 Vt. 322 ( 1858 )

Redfield, Ch. J.

There can be no question that the sheriff is liable to the amount of the execution, upon the facts found by the bill of exceptions, unless the affidavit, by virtue of which the execution issued as a capias, is defective, or not so filed as to be a compliance with the statute.

1. The objection to the form of the affidavit is, that it does not follow the words of the statute, in stating that the deponent has good reason to believe, but omits all qualification of the reason simply saying, “ I have reason to believe and do believe.” This, it seems to us, is not a material omission. Reason for belief must be good reason, or it is no reason. The idea that one will swear that he has reason to believe and does believe a thing, and not regard the reason for such belief a good reason, is certainly not to be entertained. The supposition is an impeach^ment of the deponent’s fairness or capacity. The term good, in this connection, is synonymous with sufficient, and really adds nothing to the -word reason.

II. It is objected, too, that the statute requiring the affidavit to be filed with the authority issuing the writ, requires something more than depositing with such authority; that it is requisite that some written indorsement be made upon the paper, or at all events, that it be seen and recognized by such authority. .

This view would certainly be a fair ground of construction, if the magistrate issuing the writ had any discretion in the matter. But that is -not the fact. The affidavit being made and left with the magistrate, the party is entitled to the Writ, as matter of right. It seems, therefore, that depositing the writ with the magistrate is all that is fairly implied by fiting. In popular language that is all which is understood by filing a paper in an office, or with the officer. It is putting it into the office permanently, for the inspection of all concerned. This secures to the alleged debtor all that the statute seems to contemplate. This being done in the present case, there is no defect on this ground.

III. It is said the affidavit should specify wherein the property, sworn to exist, consists ; that, if the affidavit is fairly made, it will always be easy to do this. No doubt such a provision might operate beneficially in producing caution. But the statute contains no such requirement, and as it is not contemplated that any inquiry into the facts shall be had, founded upon the affidavit, we could not well require the affidavit to be more specific than the statute. We are unable to see why the affidavit is not a fan* compliance with the statute,

Judgment affirmed.