De Weerth v. Feldner

By the Court.—Daly, F. J. The rule upon which this court has uniformly acted in granting arrests upon information and belief is, that the sources of the information must he set out, that the judge may see whether the conclusions drawn are warranted by it or not. If the information is derived from letters or official documents in the possession of the person who makes the affidavit, or which it is in his power to procure, they should be presented with the application, or copies of them should be furnished. To adopt any other rule would be to substitute the conclusions of the person who makes the affidavit for that of the judge. The person who makes the deposition, as in this case, may infer from the information upon which he relies that the debt was fraudulently contracted, and that a cause for arrest exists; but the judge, upon perusing the papers or documents furnishing the information, may think otherwise. Where, therefore, it is in the power of the person asking for the arrest to lay before the court the sources upon which he has relied for the conclusion he has come to, he must do so; as it is the judge, and not he, who is to decide whether a cause for arrest exists or not. The general rule is succinctly laid down by Judge Edmonds in Whitlock a. Roth (5 How. Pr., 143), in these words: “ So far as the facts may be within the knowledge of the plaintiff, they must be stated positively; but, so far as they necessarily rest on information derived from others, they may be so stated^ when the sources and nature of the information are particularly set out, and a good reason is given why a positive statement of them cannot be procured.” And again: “ The sources of the information obtained must be set forth, so that the court may be able to ascertain whether the party is right in entertaining the belief to which he deposesand to the same effect, substantially, are the cases of Vanderpool a. Kissam (4 Sandf., 715); Crandall a. Bryan (5 Adbott' Pr., 162); Blason a. Bruno [300] (12 Ib., 265); Campbell a. McCormick (1 How. Pr., 251); Matter of Faulkner (4 Hill, 601). There is a distinction between stating the sources of information, and, as Judge Edmond says, “ setting them forth,” and it, is exactly the distinction which exists in this case. The person who makes the affi-. davit states as the sources of his information a letter written by the plaintiff, another, written by the defendant, and an official notarial act, drawn up at Elberfeld, in Prussia, according to law, and certified by the consular agent of the United States at Bremen; and from these documents, inspected only by himself, he draws the conclusion and swears to his belief that the defendant borrowed a certain sum of money from the plaintiff, at Elberfeld, in Prussia; with an intent not to pay it back again, but to defraud the plaintiff of it, and, shortly thereafter, secretly and stealthily left his place of residence and business, at Rotingen, in Germany, without disclosing to any one whither he intended to go or had gone. It was impossible for the judge to determine whether these documents warranted such a conclusion or not, unless he knew what they contained. The contents of some of them are stated, or rather the deponent’s conclusion as to their contents, and they are limited to two facts: that the notarial act referred to duly established the defendant’s indebtedness to the plaintiff; and that in the letter written by the defendant to a friend, he wrote that when the letter would be received he would be floating upon the ocean, bound to Australia, whither he intended to migrate,—which two facts are not of themselves sufficient to warrant the conclusion that the debt was fraudulently contracted; and yet beyond this nothing is stated as to the contents of the papers, which constitute the sole source of the deponent’s information. It is presumable, from the affidavit, that the person who made it has perused the documents upon which his affidavit is based. If they are not in his possession, or if it was out of his power to produce them, or furnish copies of them to the judge when the application was made for the arrest, he should have so stated. Unless some such excuse is given, the familiar rule of evidence is applicable,—that a person shall not be allowed to resort to inferior evidence when he has it in his power to produce evidence affording greater certainty as to the.fact in question. [301] As the affidavit was defective upon be necessary to examine the additional judge below regarded it as insufficient, special term should be affirmed.. this ground, it will not ground upon which the The order made at the