Browne v. Bradley

5 Abb. Pr. 141

• Court: New York Supreme Court
• Decided: July 15, 1857
• Status: Published

Opinion

Bacon, J.

This is a special statutory proceeding, and jurisdiction must appear upon the record. The cases cited, decided under the non-imprisonment act, show, that all the facts to entitle the applicant to a discharge must appear in the petition, and that the specification in the statute of certain facts which must appear, it being apparent that the statute does not attempt to prescribe the full contents of the petition, does not obviate the necessity of averring the existence of other jurisdictional facts, if such facts must exist to give the court jurisdiction. Here the power of the court to act, inasmuch as the judgment exceeded $500, was dependent upon the fact that the applicant had been imprisoned three months, and the failure to allege that he had been imprisoned for that length of time, renders all the proceedings void.

Again, as I read the statute, the affidavit required by section 5, must be sworn to at the time the petition is presented. If the applicant can make this affidavit twenty days in advance, he may do so three months in advance, or a longer time. By section 13 a new execution can only issue after the applicant is convicted of perjury in the proceedings. If an affidavit made in advance is sufficient, intermediate between the time of making it and the presentation of the petition the applicant might perhaps acquire propórty, by bequest, descent, or otherwise, the fraudulent disposition of which, before his application, would neither affect his right to a discharge, nor enable the plaintiff, on discovering the fact, to prosecute him for perjury, and to issue a new execution against his body after his conviction.

Even if this court could grant an amendment of the proceedings in New York, there can be no amendment so as to supply the absence of jurisdictional facts; besides which, the whole proceeding is functus officio by the discharge.

Motion granted.