Hurt v. Mason

By the Court Warnek, J. delivering the opinion. From the record in this case, it appears that John M. Mason filed his affidavit of illegality to an execution proceeding against him in favour of Win. Hurt, according to the provisions of the Act of 1799, which declares, “In all cases where execution shall issue illegally, and the person against whom such execution may be shall make oath thereof, and shall state the causes of such illegality, the sheriff shall return the same to the next term of the court out of which tho same issued, which court shall determine thereon at such term.” Hotchkiss, 602. By the Act of 1821, the Judges of the Superior Courts wore required to convene at the seat of government once in each year for tho purpose of establishing uniform rules of practice throughout the several circuits in this State. Hotchkiss, 500. By tho 16th common law rule established by the judges in convention it is declared, “ When an affidavit of illegality is made on account of partial payments made on the execution, tho defendant at the time of making such affidavit must pay up tho amount he admits to be due, or the sheriff shall proceed to raise that amount and accept tho affidavit for the balance. [369] No second affidavit of illegality shall be received by any sheriff or other officer.” Hotchkiss, 948. The defendant stated in his affidavit, “ that the Ji. fa. was proceeding illegally against him, for that he had paid the money duo on said ji. fa. except the sum of thirty-five dollars, which he has tendered to the plaintiff, and which the plaintiff has refused to receive, and that he has deposited said amount in the clerk’s office.” The plaintiff moved the Court below, to dismiss the affidavit of illegality, on the ground that a previous affidavit of illegality had been filed in the same cause, and disposed of. The plaintiff then produced the previous affidavit and the judgment of the court thereon. In the former affidavit of illegality to the same execution, the defendant stated, “ that the execution was proceeding against him illegally, for that he had paid the whole amount due on said execution except the sum of thirty-two dollars and twelve cents, and that he had tendered the payment of this balance, and it had been refused.” The first affidavit was made on the 25th day of August, 1846, the second was made on the 26th February, 1847. After hearing the first affidavit of illegality, the Court below “ ordered that said affidavit of illegality be dismissed, on the ground that the balance admitted due is neither paid, or tender legally made, or deposited.” On hearing the motion to dismiss the second affidavit of illegality, the Circuit Court overruled the motion, to which decision the plaintiff excepted, and now assigns the same for error in this Court. We are of the opinion that the motion to dismiss the second [1.] affidavit of illegality ought to have been allowed, according to the terms of the rule of practice before cited. That rule was intended to prevent vexatious delay in the collection of the demands of judgment creditors. The defendant who has had his day in court, is bound at his peril, to state all the grounds of illegality which may exist at the time of filing his affidavit, and strictly comply with the rule on his part. If he fails to do so, it is his own fault, and the courts cannot, under the [2.] rule, grant him further indulgence. If he could be permitted to state one ground only, when he has several, and file separate affidavits for each separate ground when one shall be decided against him, or make out his affidavit defectively and then be allowed to file another, the mischief would be intolerable. The only way to maintain the integrity of the rule, and protect the rights of plaintiffs in execution against unreasonable delay, is to require the [370] defendant to state all his grounds of illegality at once, and present the same to the court in the manner required by the law and the rule of practice established by the judges in convention; and if he fails, or neglects .to do so, he must abide the consequences of his own negligence. Whether a defendant in execution will be permitted to file a second affidavit of illegality, for causes which did not exist at the time of filing the first, but which arose subsequently, and which could not have been included in the first affidavit, we express no opinion. We leave that an open question, to be decided whenever it shall he made. Let the judgment of the Court below be reversed.