20 A. 100 | R.I. | 1890
The writ in this case is a writ of arrest, issued under Pub. Stat. R.I. cap. 206, § 9, third clause, providing for the issuing of such a writ whenever the plaintiff, his agent or attorney, "shall make affidavit, to be indorsed thereon or annexed thereto," of the purport prescribed. In this case the affidavit subscribed by the plaintiff was indorsed on the writ, together with a certificate by Edward D. Bassett that it was sworn to before him. It is admitted that said Bassett was a notary public when he administered the oath, and as such was entitled to administer it; but he omitted to add his official designation after the signature of his name. Motion is made for leave to amend by adding the same. The defendants object, and contend that the amendment is not allowable under Pub. Stat. R.I. cap. 210, §§ 4, 5, the affidavit being no part of either process or pleadings. We think the affidavit is to be regarded as a part of the writ, since the writ cannot even be issued without the affidavit indorsed thereon *70
or annexed thereto, and thus made, as it seems to us, both essentially and physically a part thereof. But if it be not a part of it, we still think the amendment should be allowed. The affidavit is not void, evidence aliunde being admissible to supply the defect. The State v. Green, 15 N.J. Law, 88;Fortenheim v. Claflin, Allen Co.
Motion granted.
