3 Mich. 590 | Mich. | 1855
By the Court,
We will first consider the second assignment of error.
The caption to the return of the Justice is. as follows, viz:
“ Neturn to an Appeal,
In Justice Court, Wayne County, 1 David Smart vs. George W. Howe, V Before Charles Peltier. as Garnishee .of Charles Brewster. )
“ An appeal having been taken in this cause, I, Charles Peltier, Justice oí the Peace, before whom said cause was tried, do hereby certify" and return to the Circuit Court of the County of Wayne, the proceedings had before me therein, as follows;” at the end of the return this clause was added: “ given under my hand at Detroit, the 10th day of August 1853,” but the name of the Justice is not added..
The return is explicit in respect to every matter that is required by statute to. be set forth in it. The signature of the Justice at the end of the return was not necessary — it could
Then as to the first error. The. jurat to the affidavit is as-follows, viz: “ sworn and subscribed this 4th day of May, A. D. 1853, Charles Peltier, Justice of the Peace.”
The objection made to the affidavit is, that it was not sworn to, or if sworn the jurat does not certify that fact, and therefore the appeal was not taken, and this Court acquired no jurisdiction of the cause.
An affidavit is an oath in writing, sworn before and attested by him who hath authority to minister the same. (1 Bac. Ad. 124.) But Tidd in his Treatise on Practice, vol. 1, page 494, says, “ the jurat of affidavits should state where, when, and before whom they were sworn.”
In the Queen vs. The Inhabitants of Blosborn, (6 Adol. & Ellis, 51 E. C. L. 526,) a certiorari was sued out of the Queen’s bench to reverse the order of Justices. A motion was made to quash the certiorari on the ground that the jurat (which was like this) was defective. Lord Denman, C. J., in giving the opinion of the Court, says, “ On the first impression, we always feel desirous to get over objections of this kind if we can, but we must abide by established rules; and of these there is none more wholesome than that documents confirmed by oaths should set forth that they are sworn before a person having proper authority. Here the authority is given by act of parliament, and we cannot see that it has-been duly exercised unless the jurat shows it. No instance bas been mentioned in which this has not been held necessary. This depends upon the necessity of the thing itself.”' The Chief Justice quotes and approves the resolves of the
In Regina vs. The Inhabitants of Norbury, in note to the last case cited, the jurat to the affidavit was defective in the same particulars as in this case. The Court adhere to their decision in the case last cited. Lord Denman again Says:“Here it does not appear that the affidavit was sworn before any one.”
In Empey vs. The King, (13 M. & W. 519,) the jurat to the affidavit was signed by E. H. Alderson, but it did not appear by the jurat, or otherwise in the affidavit, that it was sworn “ before ” the judge, but it was held to be distinguishable from the cases cited above, as in those cases the affidavits were taken before a commissioner. The Court say, “ this form of jwrat has been, invariably used, and we are unwilling to question its validity.” Prom which it would appear that where an affidavit was sworn before a Judge of the King’s Bench, or Common Bench, Courts would hold that the jurat (though it did not state that it was sworn “ before” the Judge) imported that the oath was administered by the Judge, but only in such a case. In the case in Wellsby, H. & Cordon, 651, the jurat to an affidavit to a plea in abatement, was as follows: “ Sworn at Manchester, in the county of Lancaster, this 29th
The cases we have cited are precisely in point. It is not necessary for us to inquire into the reason of the distinction recognized by the Judges of the King’s Bench and the Exchequer, in these cases between an affidavit sworn to before one of the Judges of the Court, and one sworn to before a Commissioner or other, inferior officer. It was a common practice with all the Judges to administer oaths at Chambers, and it is probable they were willing to take notice of the long settled practice in such cases, of omitting the words “ before me ” in the jurats signed by them, and hold that the jurat, when signed by a judge, imported what according to their experience in cases before them, was true, viz: that the oath was administered by the judge who signed the jurat.
The defendant insists that though the oath should be taken' before a person authorized to administer it, yet no particular form of expression is required in the jurat, either by the statute or rules of court. This is true, but we have seen that the books of practice and the reports do recognize and insist upon the necessity of incorporating into the jurat the fact that the affiant was sworn by the officer who signs the jurat.
The defendant also insists that the omission in the jurat in the case in question, is a mere irregularity. If this was true we could have no difficulty in supporting the proceed
The affidavit meets the requirement of the statute upon the ground of public policy, and it cannot be dispensed with. The bond is intended for the defendant, and he may dispense with it if he pleases. In the cases cited by the defendant,, matters in which the appellee was alone interested, and in which the interests of the public were in nowise concerned,, were omitted, and it was held that the requirement of the-thing omitted being for the benefit of the defendant, he might, if he chose, waive it, either expressly or impliedly.
Thus in Shank vs. Warfel, (14 Serg. & R. 205.) The appeal was taken on the 14th of August 1821; a motion was made to dismiss for a defect in the bond for appeal; no other waiver or acquiescence appeared.
The act of Assembly did not intend to insist on bail if the parties assumed to waive it. “ The decision in 14 S. & R. is consistent with this early decision of the same Court, and must be considered as having been made in reference to all the principles affirmed in that and the earlier cases in that Court upon the same point. See Ashmead Rep. 170, to the same point.
In the case of Dewey vs. Green, cited from 4 Denio, 94, the affidavit for an attachment in a Justice Court stated the facts on belief. The Court held- it was fatally defective, and as the defendant objected to it before pleading over, that they must give him the benefit' of his objection; but they say if he had not made a motion to quash before pleading, he would have been deemed to have waived the objection. This case goes upon the same principle as those in Pennsylvania. It was a matter between individuals, and for their benefit, and they might waive it. The same principle is involved- in the case cited from 9 Humphrey, 453. In the case cited from 5 Conn., suit was brought by a Judge of Probate on a bond
To the same effect are cases arising upon objections to pleas in abatement. They are decided upon the same principle. In tMs case there was no waiver, and no step taken by the defendant in error in the Circuit Court, and only about three months elapsed from the entry of the appeal to the day the judgment was rendered.
Upon a review of the cases cited by defendant’s counsel, and many others, we are unable to find one which is opposed to the English cases we have cited; and while we have endeavored to struggle against the force of those decisions, we are compelled to acknowledge the soundness of the principle upon which they are decided, and we accordingly decide that there was error in the judgment of the Circuit Court, and it must be reversed.