Clark v. Wellington

Bookies, J.: The plaintiff’s affidavit contained, as we think, all that was necessary to obtain a short summons. It stated that he had, as he believed, a good cause of action against the defendant arising on contract, “ upon which, according to' the provisions of the thirty-first section of the act to abolish imprisonment for debt and to punish fraudulent debtors, no warrant could issue ; ” and further, that both plaintiff and defendant were non-residents of the county. It is conceded that all requisite formalities were observed to‘authorize the proceeding by short process, in case it was sufficiently made to appear that the action, being on contract, was one for which no warrant could issue against the defendant. The point of objection is, that facts and circumstances should be stated in the affidavit showing that no warrant could issue. We are of the opinion that the general averment contained in the affidavit is sufficient, and is a compliance with the requirements of the statute. No warrant could issue for the cause of* action stated, unless' authorized by section 31 of the non-imprisonment act; and the affidavit averred, in terms, that according to the provisions of that section no warrant could issue in the case. On referring to the section cited, it would be seen in what cases a warrant might issue, and the affidavit averred that tlie plaintiff’s cause of action was not either of them. In this way it was made clearly to appear that no warrant could issue; hence the proceeding by short summons was well authorized. In the ease of Waters v. Whitamore (13 Barb., 634), there was no proof of non-residence, nor any proof that no warrant could legally issue; and all that was there decided was, that proof of those facts was requisite. So, in Morgan v. House (36 How., 326), there was no averment whatever, to the effect that no warrant could issue. These decisions have no application to [640] the case at bar. Here we have the distinct averment of fact, that the ground authorizing the issuing of a warrant did not exist, in the statement that according to the provision of the thirty-first section of the,non-imprisonment act, no warrant could issue. This was equivalent to an -averment negativing the grounds stated in the act giving the right to proceed by warrant. Nor is this conclusion at all in conflict with the rule, that to obtain a warrant against the person, or an attachment against property, facts and circumstances must be set forth as a basis for judicial action. The judgment of the County Court should be reversed, and that of the justice affirmed. Present — LbaeNEd, P. J., Booties and BoaedmaN, JJ. Ordered accordingly.