Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1855-03-24
SUPREME COURT.
Decision Of Judge ROberf-Or.
c. HARRIS, Esq, for Plaintiff.
ID. BLAIR. ESQ. for Defendant.

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| J. ID. BLAIR, Esq, for Defendant.
WiHiqnl Morgan vs.. Antonio Mdnuei.-JuStiee
ROBERTSON, delivering the opinion of the Court,
said : The question TO be decided by the Court is
whether not a verifcation of plaintiffs petit
tion by his Attorney, "as he rerily beieres," is
sufficient verifcatiOn under our statute.
! The words of the statute referred to are as fol-
lows, viz: "That in every civil action hereafter
to be tried in any of the Courts Of Record in this
Kingdom, such action shall be commenced by pc
tition, which petition shall be verified by the oath
of the plaintiff, or some one on his behalf" Supp.
to Stat. Lalrs, lS4o; p. ii, Sec. Isl.
As has been we'll said by one of the learned
counsel heobect of the statute Is to guard against
frivolous and unnecessary litigation and by anoth
er, is to prevent dishonest persons and speculat
ing attorneys from embarkiHg in unfounded suits
from mercenary or malicious motives.
Keeping in view its well understood object, what
is the reasonable and proper construction of the
section above quoted!
1t seems to me reasonable to say, that the object
of the statute so far it depends upon rule like
the present. cannot be attained unless the plaintiffs
petition is verified by the oath of some person who
is able, of his knowledge to swear TO thetInth
of the facts therein set forth The languages of the
statute is direct and unqualified, aud evidently does
not contemplate the verlficaton of petition by
person who cannot say OF his own knowledge,
whether the allegations of the petition true or
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the petition is true he verify believes" merely,
no opportunity Is afforded, in the case of wit
ness on the stand by cross-examnation to test his
opportunities of knowledge or the grounds of his
belief.
Again, our statute does not require that the plain
tiff should be out of the kingdom before his petition
NAV be verified by some one on his behalf; and 1t
seems to me- that if we allow stranger an at
torney to come in and make oath, on behalf Of the
plaintiff that he verify believes the statements In
the petition to be true-basing his oath probably
on the mere word of the plaintlff-we entirely de-
feat the object of the statute, by rendering it prac
ticabe for the plaintiff to have petition verified
and acted upon by the Court to the truth Of which
he would not dare make oath himself.
By the New York Code of Procedure, amend
ed in 1851, the verifcatIon, in the courts of that
State must be to the effect. that the petition Is true
to the knowledge of the person making it, and must
be by the party or if there be several parties unit
ed in interest and pleading together. by one at
least of such parties acquainted t1h The facts, If such
party be within the county where the attorney re-
sides and capable of making the affidavit. The
affidavit may also be made by the agent attorney,
if the action or defense be founded upon written
instrument for the payment Of money only. and
such instrument be in the possession of the agent
or attorney or if all the material allegations of the
pleading be within the personal knowledge OF the
agent or attorney. When the pleading Is verified
by any other person than the party, he shall set
forth in the affidavit his knowledge, or the grounds
of his belief on the subject, and the reasons why 1t
is not made by the party. Ner York COde Of 1882
pp. III and l72.
A verifcation " hich stated that the party had
read the pleading, and that "ihe same Is true ac-
cording to the best of his knowledge and belief"
Is not sufficient veriGcation. Van Horn VS.. MORt-
g0mery, Pr. Reports, 32S. And this, presume,
was a case in which the verifcation was made by
L.
other person on his behalf If tits necessary to be
thus stringent with the party, who may be presum-
ed to be personally acquainted with the facts on
which he seeks to bring his action, torfiori It Is
necessary towards attorney, or any other person
in whose favor the presumption of personal know
ledge does not arise.
have cited the rule in New York merely for the
purpose of helping us to arrive at reasonable con-
s.rictiou of our own statute, which, although less
full and explicit on the subject framed for pre-
csely the same purpose, and 10 effect the same OBJ
iect rs that of New York aud of all other States
having statutes on the subject
II contended, and perhaps with reason that the
construction put upon the statute by the Court,
would sometimes render it lnconysnentt to carry on
a suit where the plaintiff resides IN foreign coun-
Iry. But | think il will not be denied, that the
evils against which the statute intended to guard
are lust as likely TO arise in suits of this description,
as in anv other At all events, cannot see WY
the Court should be swayed.by the suggestion of
this practical difficulty, in is construction Of the
statute f the law is defective, let 1t be amended
by the proper authority
The rule requiring plaintifto verify his petition
,r declaration bv OATH is derived from the Roman
Jaw. and was probably unknown in the ancient Law
courts of England, when the pleadings were stated
,rally. Sir WIN. Blackstone. in Describing the +.
practice Of the English law courts IN kis time, COM
-aratiyely MODERN makes no mention Of any such
ule.
In an article in the American Iurist, Vol. IL, at
ached to the report of the Of Stetson rs Jor-
lon ct al, supposed to be from the pen OF Judge
ARE, will be found an ebe eTPose OF the rules OF
he Roman Law on the subject now before US. The.
Vrter states, as the result of his research, that.
In al countries and under all systems of jurspru-
ence il has been found necessary to establish
one checks to causeless and yexatlous litigation
n the jurisprudence of the common Law, the princI-
al check is the liability 10 costs; but IN the Jurs-
rudence of ancient Rome, it appears that party
,as not liable for the costs of the adverse party
,erey because judgment was rendered against
i'm. lie was liable only when ne instituted an sc--
on, without probable cause that IS, when the SUIT