Pearre Bros. v. Folb

MONTGOMERY, J.: The Act of 1893, Ch. 453, in a mandatory way, requires the assignors in deeds of trust or deeds of assignment for the benefit of creditors to file under oath a schedule of all preferred debts, with particulars, within five days of the registration of the deed. The first question presented for decision in this case is one that relates to the sufficiency and validity of the oath which the assignor made when the schedule of preferred debts was filed. The assignor was a Jew. When *242 the justice of the peace administered what the defendants insist is a valid oath, that officer said to the assign- or “hold up your right hand”; upon which being done, the justice said “you do solemnly swear or affirm that the matters and things contained in the paper writing are correct, so help you God.” There was no Bible used. The affiant was not a Quaker, nor a Moravian nor a Dunkard, nor a Mennonist; he did not ask to affirm, nor did he express any conscientious scruples at touching the Bible, or being sworn on that book, but, on the contrary, said he had none. That proceeding did not constitute a valid oath under the laws of North Carolina. The preamble to Chapter 40 of Volume 2 of The Oocle is in these words: “Whereas lawful oaths for the discovery of truth and establishing right are necessary and highly conducive to the important end of good government, and being most solemn appeals to Almighty God as the Omniscient witness of truth and the Just and Omnipotent Avenger of falsehood, such oaths therefore ought to be taken and administered with the utmost solemnity.” This “solemnity” applies not only to the substance of the oath, but to the form and manner of taking it and of administering it, as was said by the Court in the case of State v. Davis, 69 N. C., 383. And therefore the Statute, Section 3809 of The Code, provides that “Judges and justices of the peace and other persons who may be empowered to administer oaths shall (except in the cases in this chapter excepted) require the party sworn to lay his hand upon the Holy Evangelists of Almighty God in token of his engagement to speak the truth, as he hopes to be saved in the way and method of salvation pointed out in that blessed volume, and in further token that if he should swerve from the truth he may be justly de- *243 priverl of all the blessings of the G-ospel and made liable to that vengeance which he had imprecated on his own head, and he shall kiss the Holy Gospel as a seal of confirmation to the said engagement.” The only exception made in the statute to the general rule is “where the person to be sworn shall be conscientiously scrupulous of taking the Book bath in the manner aforesaid, he shall be excused from laying hands upon or touching the Holy Gospels”; and the oath required in such cases shall be administered in a certain prescribed manner in Section 3310 of The Code is equally as solemn as the general law requires. And Quakers and some others, with conscientious scruples about swearing at all, “are permitted to affirm.” In State v. Davis, supra, the court further said “if the usual form of oaths upon the Holy Evangelists is dispensed with and an ‘appeal’ .or ‘affirmation’ is substituted, it must appear that the person sworn had conscientious scruples, else the appeal or affirmation is invalid.” That decision has never been altered or modified by this Court. The only other question necessary for us to decide is as to the validity of the levy aud seizure by the sheriff of the goods of the defendant Folb uuder the warrants ■of attachment. The defendant Taylor, the assignee, with sureties, executed to the sheriff a bond for the delivery of the goods, should the plaintiffs recover judgment in the action against Taylor, the assignee of Folb, and in that paper writing they recited the fact that the sheriff had made seizure and levy of the goods. The defendants are estopped to deny the sufficiency and validity of the seizure of the goods and levy of the attachments. Hun ley v. Filbert, 73 Mo., 34; 7 Am. & Eng. Enc., 8. There is no error and the judgment is Affirmed.