« PreviousContinue »
Arguments for Respondent.
If not void, and the court consider that the Special Term had power to amend them by reducing the amount, then the second judgment should be further reduced by striking out the notes which were past due at the time of the confession.
Martin I. Townsend, for the respondent.
I. These confessions of judgment were sufficiently verified. The provision of the 383d section of the Code as to verification, is in the words following: “And verified by his oath.” Anything which the law makes a verification, will obviously meet the requirements of this statute. The learned judge who wrote an opinion in this matter at the General Term, Justice Peckham, held with us on this point only upon the ground of authority, yielding to the authority of Delaware v. Ensign (21 Barb., 85, 91), but stating his views to be that the judgments were not in fact verified, resting his opinion upon the difficulty, if not the impossibility, of convicting of perjury, in case the statement verified should not be true. We submit that a man is never convicted, and never can be convicted of perjury, simply because a statement made is false; the statement must be corruptly false. In a word, no man can be convicted of perjury in making a statement which he believes to be true, whether such statement be unqualified, or whether it be stated in the form of belief merely. And a conviction for perjury must follow in any case where it is sufficiently proved that a party has stated under oath that which he did not believe to be true, whether the statement be in form a statement upon belief, or an unqualified allegation of the truth of the thing averred. (Archbold's Criminal Pleadings, 428; Rex v. Pedley, 1 Leach, 327, per Lord MANSFIELD.) By 2 R. S., p. 681, $ 1, perjury must be “willful and corrupt.” Indeed, so thoroughly is this principle understood, that in the actual administration of the oath of verification to written instru-' ments, whatever be the written form of verification, the person administering the oath swears the affiant that the statement verified " is true, to the best of the affiant's know
Arguments for Respondent.
ledge and belief.” Language used in statutes, unless some legal reason exists to the contrary, will be understood to have the same meaning as when used in common life. If we look into the Code of Procedure itself to find what is meant by the word "verify" in other sections, we shall find that in the 157th section, if a party swears that he believes a pleading to be true in the proper case, such statement is called a verification, and even in those cases, when a pleading is sworn to by an agent or attorney, upon information and belief, that statement is called in the statute itself a “verification.” In Hames v. Tripp (4 Abb., 232), where all the allegations in a pleading were made on information and belief, a verification, in which it was stated that the affiant “believes it to be true, all the allegations therein being made on information and belief,” was held to be sufficient. So we see that not only does the 157th section of the Code interpret the word “verify," but that judicial construction of that section sanctions the freest rendering of that section. But we have a still further illustration of the meaning which the legislature attached to the word “verification" in the 158th section of the Code. The bill of particulars may be “verified" -" to the effect that he believes it to be true.”
But the General Term of the 4th district, in Delaware v. Ensign (21 Barb., 91), four years before these verifications were drawn, sanctioned the very form used in these cases. That decision was published in 1856, and has been, it is believed, universally acquiesced in up to the present time. This decision was before the attorney and the party, when the verifications in question were drawn, and was followed; and it is submitted, not only that the decision was correctly made at the time, but that after ten years' acquiescence in the doctrine, great mischief would result from its reversal, as such reversal must invalidate thousands of judgments entered up in compliance with that decision.
II. The judgment in which the amount of two of the notes mentioned is omitted, and the statement of confession for which is found, was properly declared valid for $1,960, and affirmed. The provision of the Revised Statutes in
Arguments for Respondent.
regard to amendments, found in 2 R. S., 424, 425, SS 7, 8, are not repealed, but still in full force, although the whole title, of which these sections were a part, was omitted from the 4th edition of the statutes, as superseded by the Code, but not as repealed. (Brown v. Babcock, 1 Code R., 66.) The provisions of this title may well be considered as superseded by the Code in most cases, inasmuch as the power of amendment furnished by the Code, is larger and more liberal than that furnished by the statute in question; but by certain sections of the Code, its provisions in general are limited to actions pending, and for that reason some have supposed that the court had no power to amend a judgment by confession; but a reference to the sections of the Revised Statutes quoted will show that such an opinion is erroneons, and where the material exists in the judgment roll, out of which to make the judgment what it should be, the court have the same power to amend that they would have had before the Code, in a judgment rendered in a suit regularly instituted.
2. The amendinent of this judgment, if it be considered that the court amended the judgment, or the declaration that a judgment for more than $2,500 should be valid as against creditors but for $1,900, countervailed no rights acquired by other creditors, as the order reduced the apparent amount of the judgment.
3. The power of making such orders in relation to judgmerts upon confession, is now fully established, and has been repeatedly exercised. In Necle v. Berryhill (4 How., 16), two statements for confession of judgments were left with the county clerk for the purpose of having judgments entered upon them. The clerk entered the judgment in the docket, but did not write a statement of the judgments on the confessions. On a subsequent day, another statement for the purpose of a judgment by confession, in favor of another plaintiff, but against the same defendant, was filed in the same office; the judgment on this was regularly entered. On a day still subsequent, the attorney for the plaintiffs in the first two judgments consents to have
Opinion of the Court, per DENIO, Ch. J.
the judgments entered up as of that date. On motion, it was ordered that the last judgments be vacated, and the judgments perfected as of the first date. The same doctrine was affirmed in Daly v. Mathews (20 How., 267).
In Mann v. Brooks (7 How. Pr., 449), the statement of confession was amended on motion to the court, without notice to the subsequent judgment creditor, and Cady, J., held the judgment so amended good as against the subsequent judgment creditor, and in 8 Howard, 40, the General Term unanimously affirmed Judge Cady's decision. In Hoppuck v. Donaldson (12 How., 141), the judgment was entered for two items, $521.60, and $500. The court, Judge BROWN presiding, decided that the judgment should be held good, and have priority over subsequent judgments for the $500, the judgments being held ineffectual for the $521.60, on account of the insufficiency of the statement; it appearing that the claim was fair.
In McKee v. Lyon (10 Abb., 392), a judgment was held, by Judge SCRUGHAM, good for that part in regard to which the statement was sufficient, and ineffectual for the remainder.
So that the action of the court in this case is sustained by abundant authority, and we find no authority or dictum conflicting with the views which the court took in this case.
DENIO, Ch.J. 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 state
Opinion of the Court, per DENIO, Ch. J.
ment 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
TIFFANY.-Vol. VI. 53