Parkhurst v. Pearsons

The opinion of the court was delivered by Pibrpoint, J. This is an action of assumpsit. The original writ was issued against the bodies of the defendants, who plead in abatement, that there was no sufficient affidavit filed with the magistrate, as required by the statute to warrant the issuing of such [706] writ against their bodies. The facts found by the county court, do not show that the affidavit of Wilson, the attorney of the creditor^ which was sworn to before the magistrate issuing the writ, was either filed, or left with such magistrate. The statute requires that before any writ shall issue against the body of a debtor, the plaintiff, his agent, or attorney praying out such writ, shall file with the authority issuing such writ, an affidavit stating that he has good reason to believe and does believe that the defendant is about to abscond or remove, etc., etc. And the first question that arises on the bill of exceptions is, was the affidavit of Wilson so filed with the magistrate as to answer the requirements of the statute ? The case shows that Wilson, the attorney, made the affidavit in this case, and swore to it before the magistrate who issued the writ. Is that such a filing with the magistrate as is contemplated by the statute? We think it is not. The term “ file with the magistrate,” as used in this statute, does not refer to any entry on the affidavit, or any act to be performed with it by the magistrate after he receives it. The plaintiff is to file it, and the only manner in which he can comply with this requirement, is by lodging the affidavit with the magistrate, and putting it under his control. This is what the statute clearly contemplates, and when this is done by the plaintiff, he is entitled to his writ against the body, and the magistrate is authorized to issue it, and this right is not to be affected by any disposition the magistrate may subsequently make of it. If the magistrate should destroy it (although it would be a highly improper act on his part), it would not affect the validity of the writ. But we think it an indispensable requisite, a condition precedent, to the right to the writ, that the plaintiff should leave the affidavit with the magistrate, subject to his control. The defendant has an interest in this, he has a right to know, on application to the magistrate, on what gz’ound the writ was issued against his body, and an opportuzzity to judge of its sufficiency. In this view of the subject, we think, to justify a judgment for the plaintiff, the court below should have found, affirmatively, the fact that the affidavit was filed or left with the justice signing the writ. As they have not done so, we think the judgment erroneous, and it must be reversed, and judgment rendered that the plaintiff’s writ be abated.