Simondson sued Dickinson before.,a- justice of the peace, and upon the trial judgment was rendered in favor of defendant, from which Simondson undertook to appeal. An affidavit was made by him before the justice, for the purpose of complying with section 8886, Compiled Laws. But the affidavit, as sent up by the justice, was not signed by Simondson,-nor had the justice signed the jurat.
A motion-was-'made by the appellee in-the circuit court, to dismiss the appeal for want of a-proper affidavit, on the hearing of which motion1 the appellant presented an affidavit of the justice, showing that, at the time Simondson presented to1 him the- bond for the1 appeal, he also presented to him the-form of the affidavit (being the paper returned by the justice as' the 1 affidavit in' appeal), and that he, Simondson, had sworn to the affidavit before him, though the. justice had neglected to sign the jurat,
The circuit court refused to dismiss the appeal, and allowed the appellant to amend by putting in the proper affidavit minc.joro tunc.
Dickinson now moves this court for a writ of prohibition, restraining Simondson and the judge of the circuit court ffom proceeding to try the cause upon appeal, on the
The- motion must be denied. The affidavit could not be held bad on the ground only that it was not subscribed .by the affiant. The statute is silent as to the signature of the party making the affidavit; it was, therefore, a good affidavit if properly sworn to (3 Caines, 190; 8 John., 51ft), though the justice should have attached his jurat before sending it up in return to the appeal.'
An .affidavit not sworn to before- the justice himself, from whom the appeal is taken, would be of no avail, though sworn to before some other officer, unless the jurat of such officer was properly signed. But when the appellant has sworn to it before the justice himself, he has done all that can be required of him in respect to the affidavit, and the neglect of the justice to perform his duty by signing a proper jurat,-ought not to prejudice the rights of the appellant.
The proper course, we think, to correct the apparent defect, would have been for the circuit court either to allow the justice to attach his jurat, mmc pro tunc, should he voluntarily appear and do so, or if not, to make an order for a further return, requiring him officially to certify whether the affidavit had been duly sworn to before him. It is still in the power of the circuit court to take the course suggested; there is, therefore, no ground for a prohibition, if the case were in other respects a proper one for that writ — a question we do not decide.