Opinion
September Term, 1865
John E. Burrill, for Mathews and Mitchell.
Martin I. Townsend, for the respondent.
The most important practical question upon this appeal is whether the statements upon which the first two judgments were entered were properly verified. An affidavit was annexed to each, in which it is said that the deponent "believes the above statement of confession is true." The statute requires the statements or confessions to be verified by the oath of the defendant.
Where, in the course of legal proceedings, the oath of a party is required, the intention is to appeal to his conscience and to his religious sense, and also to the dread of the temporal punishment which the law has denounced against the crime of perjury. Where the matter to which the oath relates is within the personal knowledge of the party, the usual form is a direct and positive affirmation that the statement is true. Where the matter to be proved concerns the acts of others, transacted when he was not present, and where his knowledge consists in the information which he has received respecting it, the form adopted is to state the information, and add that the deponent believes it to be true. All the material facts contained in these statements are of acts in which the deponent, the defendant Robbins, was the principal actor. In one of them they were notes made by himself for a consideration passing between him and the plaintiff, and in the other they were accommodation indorsements of notes made by himself, which notes he had procured to be discounted or had negotiated to banks and to his creditors. The statements related to his own act and deed, and not at all to matters of which his knowledge was derived from information. The oath which he made was ex parte. The proceeding did not contemplate the presence of any person having a conflicting interest, who could inquire into the grounds of the defendant's belief. In requiring that he should verify the statement, the legislature intended that in so far as it related to things within his own knowledge, he should affirm it to be true. A statement that he believes it, is something considerably short of this. How far short it would be, in a given case, would depend upon the conscientiousness, and to some extent upon the intelligence of the person using the term. No one can fail to feel that when that term is used, the party commits himself less conclusively to the principal fact. It is a qualification of the direct affirmation of the existence of the fact. Besides, the word is inappropriate when used in relation to a fact which the party either knows or does not know. It relates to faith, and expresses the evidence we have of things not seen, but nevertheless credited from what we have heard, or from other collateral facts which we do know, and which argumentatively lead to the principal thing.
To hold this oath to be a compliance with the statute, would, in my opinion, be very hazardous. Many of our rights and interests are liable to be affected by ex parte affidavits. The readiness with which they are made by interested parties is proverbial. If you allow such parties to adopt a form of words less binding upon their conscience than a direct affirmation would be, we weaken to that extent the safeguards which the law has provided.
It is said that a party may be convicted of perjury in swearing to his belief of that which he knows to be untrue. It appears that this is so; but the evidence in such a case, and in one where a party swears directly, is quite different. In the former the prosecution, in addition to negativing the principal fact, would be obliged to establish the corrupt motive by affirmative proof. In the other, if the main fact were disproved by sufficient evidence, it would rest upon the accused to show that the swearing was not corrupt, but the result of mistake, or the like. The onus should rest on him, and an affidavit which will invert the order of proof ought not to be held sufficient. Such an oath is not a responsible one.
It follows that the statements in these cases were not verified according to law.
The plaintiff in the two judgments, in opposing the motion to set them aside, showed satisfactorily that the error arose from the inadvertence of the attorney employed to enter up the judgments. The plaintiff produced a list of the notes which he had given to and indorsed for the defendant, and the latter attended for the purpose of making oath in legal form to the statements, and he signed and swore to the affidavit which was prepared for him, supposing it to be sufficient in form and substance. Both the plaintiff and defendant, in opposing the motion, made oath to the existence and validity of the demands for which the judgments were confessed, and to the good faith of the proceeding. The Supreme Court, I think, should have allowed the plaintiff, on payment of the costs of the motion, to amend the statements by placing on file statements properly verified, and in default of doing so the court should have granted the motion. ( Mitchell v. Van Buren, 27 N.Y., 300.)
The facts set out in the statement, in which the judgment for $1,117.35 was entered, are quite sufficient.
The other judgment can be sustained, if at all, only as one given to secure a contingent liability. It is not sufficient even in that aspect, and I am unable to uphold it. Some of the notes which the plaintiff had indorsed for the accommodation of the defendant were overdue, and others of them were running to maturity. As to those where the day of payment had passed, there is no allegation that the plaintiff had been charged as indorser. There is, it is true, an allegation that the defendant is indebted to the plaintiff for the amount of all the notes, and the judgment is confessed for that amount. But there was, strictly speaking, no indebtedness for either of the notes, and no pretense for it as to those which had not matured, though there was a proper occasion for confessing judgment for them as for a contingent liability. But it should be shown that those overdue had been protested. The plaintiff's affidavit read on opposing the motion, proves that these notes had been regularly protested, and that he had been charged. As it was wholly the fault of the attorney that a statement of that fact was omitted in the written confession, I think we should likewise allow an amendment in that respect. The statement that the indorsed notes had been negotiated by the defendant was sufficient.
The Supreme Court was correct in reducing the amount of the judgment by deducting the aggregate of the notes whose amount was not stated, sustaining it for the residue so far as concerned that omission, notwithstanding the error.
The order appealed from must be reversed, and the record remitted, with a direction to the Supreme Court to allow the plaintiff to amend the statements in the particulars which have been mentioned; and that if such amendment be made, and the costs at General and Special Term paid within a time to be fixed by the court, then the motion to set aside the judgments is to be denied. If such amendment and payment shall not be made within the time fixed, the judgments are to be set aside, with costs.
All the judges concurring,
Judgment reversed.