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."