SUPPLEMENTARY PROCEEDINGS.

Attention has been called to the Bar of Bergen county by Mr. Justice

Parker to a laxity of practice in relation to supplementary proceedings

in cases of judgment and execution, and, as the matter should interest

the Bar of the State generally we give, herewith, what has been spread

before the Bergen attorneys:

"1. Originally an attorney or agent could not make the affidavit.

Westfall v. Dunning, 50 N. J. L. 459. This was changed by statute. P. L.

1890, p. 185. But it should appear as one of the direct statements in

the affidavit that the attorney is the attorney, i. e., "J. S., being

duly sworn, says that he is the attorney herein for A. B. the

plaintiff," and not merely, "J. S., attorney for the plaintiff, being

duly sworn," which is a mere appositive and not a definite statement.

"2. Such affidavits frequently say: "that he has read the foregoing

petition, and that the statements thereof so far as they relate to his

own acts are true, and so far as they relate to the acts of others he

believes them to be true." This, it would seem, is not a compliance with

Section 24 of the Executions Act. Such an affidavit in Chancery was

considered in Barr v. Voorhees, 55 Eq. 561, and held sufficient for an

order for discovery, but not for an injunctive order. But it is to be

noted that this was under Section 90 of the Chancery Act of 1875 (Rev.

121; G. S. 1895, p. 389) which reads "that he believes the contents

thereof are true," whereas, Section 24 of the Executions Act requires

the creditor or his agent to verify the petition, in which he shall

state the amount due on the execution, the return by the officer, _and

his belief_ that the creditor has assets, etc. The belief is, therefore,

restricted to the debtor's assets and does not apply to the recovery of

the judgment or the issue or return of execution. As to these facts, the

late Chief Justice Depue said he doubted the sufficiency (at law) of

such an allegation. 10 N. J. L. J. 223-4; Frankel v. Miner, 10 N. J. L.

J. 341.

"There is no difficulty about an attorney deposing from personal

knowledge that a judgment was entered, and execution issued and

returned, as these things are matters of record; and as Chief Justice

Beasley said in Westfall v. Dunning, 50 N. J. L. 461 already cited: "It

is obvious that such a statement could be safely made by anyone who was

possessed of the loosest information," etc. He was there speaking of

verifying the belief of the _creditor_; under the present act the belief

of the attorney may do as well, but the criticism seems applicable to

the other allegations also.

"The printed forms in Jeffery and on some of the law blanks are open to

criticism in the above respects, and debtors should not be hauled before

Commissioners for examination unless the statute is complied with."

The New Jersey Law Journal, Volume XLV, No. 3, March 1922 · 第 13 / 23 题