Hopkins v. Cabrey

By the Court,

Cowen, J.

The affidavit was clearly sufficient within the statute. Statutes of 1838, ch. 243, § 1, p. 232. It may not have been so in respect to the former suit, but was as to the tender and admission. It is no answer that a tender was not pleaded. The omission may have been for the very reason that the testimony of the magistrate was gone.

Again: the justice had no right to interpose his private knowledge or recollection as an answer to the affidavit. Doing'so would enable a justice to defeat the application, and at the same time to put the point beyond the reach of review, even on the facts which he may assume to know or to have forgotten. Here it is true he states them, but not under his oath as a witness. That .the defendant has a right to require.

Again: his specification was not satisfactory. He had no right to assume that the docket and other written proceedings would have been proof as full to the purpose as if accompanied with his oath. Oral proof is often necessary to show what was in fact heard and submitted under an issue which has been tried, in order to give it the desired effect tipon a subsequent trial of the same matter. His want of recollection might also have been remedied by a recurrence to circumstances in the course of his examination as a witness. I think the judgment of the common pleas should be affirmed.

Judgment affirmed.