MISCELLANY
NEW CHANCERY RULE.
The Chancery Rules have been supplemented by the addition of a new rule numbered 165a, promulgated January 6, 1922, as follows:
165a. All pleadings, proofs and other papers presented to, and all orders and decrees signed by the Chancellor or a Vice-Chancellor or Advisory Master at the State House in Trenton, shall be forthwith filed with the clerk; and all such which shall be so presented and signed at chambers or elsewhere shall be marked filed by the Chancellor or Vice-Chancellor or Advisory Master (which need only be over the initials of his name and office, and may be done by his official stenographer or sergeant-at-arms at his direction), and all such papers shall be retained by the Chancellor or Vice-Chancellor or Advisory Master and delivered or forwarded by him, or at his direction, to the clerk with all convenient speed.
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 debtors 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.