
    Austin v. Strong.
    Where an affidavit for an appeal from the judgment of a justice, under sec. 2 of the act, Ses. L. 1845, p. 98, was made by an attorney of the party and stated, that plaintiff recovered five dollars more than was justly and honestly due him, as deponent believed, from the facts and evidence in the cause, which were folly communicated to him, itawas held sufficient.
    The recognizance for an appeal under the act, Sea. L. 1845, p. 98, must be taken ■ before the justice by whom the cause was tried.
    Case submitted, by agreement of parties.
    
      Van JDyJce and Emmons,' for plaintiff.
    
      Lothrop and Buffidd, for defendant.
   By the court,

Whipple, Ch. J.

This cause was originally commenced. before a justice of the peace, and was by appeal taken to the circuit court of the county of Wayne. A motion was made in that court to dismiss the appeal, on the ground of the insufficiency of the affidavit and recognizance required by the statute. The circuit court deeming the affidavit insufficient, dismissed the appeal.

The parties, by their counsel, having waived the issuing of a wnt of error, have agreed to submit the record to this court, in order that the decision of the court below might be reviewed.

The second section of the act of 1845, amendatory of the justices’ act of 1841, provides, that “ no party against whom a judgment has been rendered by a justice of the peace, upon any claim arising upon contract, express or implied, shall appeal therefrom to the circuit court, unless such party, his agent or attorney, shall within five days after the rendition of such judgment, make and present to such justice an affidavit, alleging therein that the party recovering such judgment had recovered therein at least five dollars more than was justly and honestly due such party.”

It is objected to the affidavit, that it does not appear that the attorney was ever fully advised by the defendant of the merits of the case; or that all the facts and evidence were elicited on the trial before the justice, or that tbe attorney was present at tbe trial and heard tbe evidence.

I tbink it could never bave been intended by tbe legislature, that when tbe affidavit was made by an agent or attorney, that be should swear positively that tbe prevailing party recovered five dollars moro than was honestly and justly due him. This could not, in tbe nature of things, be done, except in cases where tbe agent or attorney bad a personal knowledge of the facts. Generally, however, tbe attorney does not possess this personal knowledge, but derives the facts from bis client, upon whom be must necessarily rely. The affidavit in this case, after stating that tbe plaintiff recovered five dollars more than was justly and honestly due, concludes as follows: “ As deponent believes, from tbe facts and eyicLence in tbe cause, which are fully communicated to him,”

Tbe qualifying words, “ as deponent believes,” are unobjectionable for tbe reasons already given. Had tbe affidavit concluded with these words, no question cojild have beep raised respecting its sufficiency: it would have been a substantial compliance with the statute. But this belief is said to be founded on insufficient grounds, It is true, that tbe attorney does not, in words, swear that the facts were communicated to him by bis client, or that he was present at tbe trial before tbe justice, and beard the evidence. But is not this fairly implied ?

The facts in the cause, and tbe evidence in tbe cause, are stated in positive terms to bave been communicated to the attorney. From what source and in what manner did be derive a knowledge of those facts, and of tbe evidence in tbe cause? We must necessarily consult our experience in determining this question. With respect to the facts, as I bave already said, they are usually derived from the client. But another and a more satisfactory mode of ascertaining tbe,m, is, from tbe evidence given on tbe trial of tbe .cause, when the facts ,are communicated under tbe sanction of an oath. Although it does not affirmatively appear in tbe affidavit that tbe attorney was present at the trial, yet I tbink it is fair to infer that such was tbe fact — indeed, the inference is supported by tbe return of tbe justice, which shows that tbe defendant did appear, by bis attorney, Mr. Lotbrop. But I am inclined to think that it is not necessary to state bow tbe facts were made known to tbe attorney: it is sufficient if he swears that the facts have been communicated to him; if it should afterwards appear that they had not been communicated to him, he would render himself liable in a criminal prosecution.

If, as contended by the plaintiff, it is a fair construction of the affidavit to say, that the facts .were only made known to the attorney through the medium of the evidence rendered on the trial before the justice, I still think the attorney might well act upon the facts thus disclosed in forming an opinion as to whether or not the plaintiff had recovered more than was justly and honestly due to him. It may be true, that all the facts might not have been elicited on the trial, but the fair presumption is that the plaintiff adduced all the proof which he could command in support of his right to recover. However this may be, the attorney has sworn that, according to his belief, the plaintiff recovered five dollars more than was honestly and justly due to him, and that this belief was founded on the facts and evidence in the cause, which were fully communicated to him.

Upon the other question raised by counsel, I am of opinion, that, under the act of 1845, the recognizance can only be taken before the justice by whom the cause is tried. This the statute clearly contemplates. Section 4 provides, that the party appealing shall, at the time he enters into a recognizance, “ pay to such justice the costs of the suit, and one dollar for making and filing his return.” How can the appellant pay the costs &c. “ at the time of entering into the recognisance,” unless it be entered into before the justice by whom the cause was tried ? Rut the fifth section is more decisive of the question: it provides, that no justice of the peace shall receive any recognizance on appeal as hereinbefore provided, unless the person entering into the same as surety, justifies his responsibility on oath, and answers any question touching his pecuniary responsibility, which such justice may deem proper to put.” The justice who receives the recognizance is the one by whom the cause was tried; and the act expressly directs that he shall not receive it, unless the surety justifies, and answers any question touching his pecuniary responsibility, which such justice may deem proper to put.

Whatever may have been the rule previous to the act of 1845, it seems quite clear that that act cannot be carried into effect, unless the justice who tries the cause also talces the recognizance.

We think, therefore, that while the affidavit was sufficient, that the recognizance should have been taken by the justice who tried the cause.  