Haddon v. Larned

• Decision Date: 11 November 1889
• Citation: 10 S.E. 278,83 Ga. 636
• Parties: HADDON v. LARNED.
• Court: Georgia Supreme Court

10 S.E. 278

83 Ga. 636

HADDON v. LARNED.

Supreme Court of Georgia

November 11, 1889

Syllabus by the Court.

A claim can be interposed under the act of 1870 upon an affidavit in forma pauperis made by the claimant himself, but not upon a like affidavit made by his agent. The privilege of making oath to belief, good faith, etc., in lieu of giving bond and security, is personal, and cannot be exercised by proxy.

Error from superior court, Scriven county; HINES, Judge.

Hobby & Matthews and Dell & Wade, for plaintiff in error.

Barron & Thomas, for defendant in error.

BLECKLEY C.J.

It is contended that under section 2207 of the Code the affidavit made by the agent of the claimant was authorized, and that the oath of the agent was, in legal effect, equivalent to the oath of his principal. When this section was brought into the law by the Code of 1863, there was nothing either in or out of the Code which provided for interposing claims by affidavit in forma pauperis; but, under the law as it then stood, all claimants had to give bond and security. The section under consideration declares that "any act authorized or required to be done under this Code, by any person in the prosecution of his legal remedies, may be done by his agents; and for this purpose he is authorized to make an affidavit, and execute any bond required, though his agency be created by parol." Seven years after the Code was adopted the act upon which the present claim is founded was passed. Its language, so far as now material, is "In all cases where claimants are unable to give bond and security, as now required by law, in claim cases, it shall and may be the privilege of such claimants to file, in addition to the oath now required, an affidavit as follows: 'I, A. B., do swear that I do not interpose this claim for delay only; that I bona fide claim the right and title to the same; that I am advised and believe that said claim will be sustained; and that from poverty I am unable to give bond and security, as now required by law.' And when said affidavit shall have been made and delivered to the levying officer the same shall suspend the sale in the same manner as if bond and security had been given." Acts 1870, p. 411. The title of this act is not to amend the Code, but "to regulate claims in certain cases, and for other purposes." In compiling the Code of 1882, the compilers inserted in section 3733 et seq. the act almost, but not precisely, in hæc verba. Of course, this mere transfer of the act into a new edition of the Code did not make the same a part of the original Code so as to bring the affidavit provided for by the act literally within the terms of section 2207; for that section, confining its terms to acts authorized or required under the Code in the prosecution of legal remedies, is too narrow to embrace acts subsequently authorized by a statute which expresses no purpose to amend the Code.

Seeing thus, that the affidavit now in question is not comprehended within the letter, the only...