Berrien v. Westervelt

12 Wend. 194 | N.Y. Sup. Ct. | 1834

By the Court,

Sutherland, J.

The coroner had no right to administer the oath to the plaintiff. He is not of the number of those officers-to whom general power is given to administer oaths or take affidavits, 2 R. S. 284, § 49; and no special authority is given to him to take an affidavit in any cause depending in court. The section referred to in 2 R. S. 552, § 11, does not contemplate a proceeding in an action depending in court; and although the sureties to a replevin bond may be sworn and examined by the coroner, he is not authorized to take an affidavit to be used in a cause. The affidavit not having been sworn to before a proper officer, was a nullity, and the defect is fatal. The statute forbids the executing of the writ, unless the affidavit be made and sworn to before some proper officer. 2 R. S. 523, § 7. The compliance with the statute is in the nature of a condition precedent.

Motion granted.