4 Ill. 361 | Ill. | 1842
delivered the opinion of the Court:
This was a foreign attachment, commenced in the Madison Circuit Court, by Campbell against Whetstone, founded upon an affidavit made before a justice of the peace, but filed with the clerk of the Circuit Court. A motion was submitted in that Court, to dismiss the writ for that reason, pending which, the plaintiff entered his motion to amend, by filing another affidavit before the Clerk. The Court denied this motion, and allowed the defendant’s motion to dismiss, to which an exception was taken. These decisions of the Court are assigned as error, by the appellant. When the motion was made at the Circuit, to dismiss, for the reason that the affidavit was made before a justice of the peace, and not before the clerk of the Court, I had great inclination to refuse it, although the practice had been uniform, ever since the passage of the attachment act of 1833, to make such affidavits before the clerk, believing that the third section of the act of 1826, respecting oaths and affirmations, would authorize the affidavit before a justice of the peace; the terms and provisions of that section being very broad and comprehensive, and further believing that such a practice would greatly facilitate those who might wish to obtain such writs. The last clause of the third section
Upon the other-point, the Court is satisfied the motion to amend, by filing a new affidavit, should have been allowed.
The 28th section
Judgment reversed.
Note. § 8 of “An Act in relation to the Supreme Court,” provides, that “In all cases where an oath or affidavit is required to be taken in proceedings in attachment, the same may be taken or made before a justice of the peace, clerk of the circuit court of this State, or other person authorized by law to administer an oath.” Laws of 1843, 135.
R. L. 83; Gale’s Stat. 64.
R. L. 473; Gale’s Stat. 513.
3) R. L. 93; Gale’s Stat. 71.