Augur v. Augur

14 Conn. 82

Opinion

Waite, J.

By the statute passed in 1804, prescribing the mode of directing a writ to be served by an indifferent person,

(a) it was made the duty of the plaintiff, his agent or attorney, to make an affidavit respecting it, in certain prescribed words, which oath the authority signing the writ was to administer, and to endorse and attest on the writ. While that statute remained unaltered, this court held, that an omission to certify the affidavit verbatim on the writ, was fatal. Eno v. Frisbie, 5 Day, 122. But at the revision of the statutes in 1821, that act was modified, and the clause requiring the magistrate to endorse the affidavit, was omitted, and instead thereof, it was provided, that “ he shall certify on the, Writ, that he administered the same.”

The form of this certificate is not given. All that can be required, is, that it should be so expressed, that it may appear that the oath prescribed in the statute was administered.

Now, the justice who issued the original writ in this case, has certified, that the plaintiff appeared before him, and made oath to certain facts. These are the same with those embraced in the oath. There is no material difference in the expressions, except that in the oath the second person is used, and in the certificate, the third. Can the court from this fairly infer, that the prescribed oath was administered ? If it can, the certificate ought to be considered sufficient. Such, we fhink, is the fair construction.

The decision of this court in Case v. Humphrey, 6 Conn. Rep. 130. has been cited as supporting a different principle. But there is a material difference between that case and the present. There, the person making the affidavit was not the plaintiff; and it did not appear that he was an agent or attorney of the plaintiff; and the court held, it could not be sumed that he was authorized, as there was nothing from which such a presumption could be made.

Here, it is stated in the certificate, that the plaintiff made the affidavit. And although the judge, in delivering the opinion of the court, in that case, made use of some expressions favouring the construction claimed by the defendant’s counsel in the present, yet it is evident from that opinion, that the certificate would have been holden good, if it had appeared, by reasonable construction of the words, that the requisites of the law had been complied with. We think that fact, in the present case, does sufficiently appear; and without inquiring whether the motion was not made too late, we are of opinion that, for the reasons assigned, it ought not to prpva.il.

In this opinion all the other Judges ultimately concurred. Sherman, J. was at first inclined to think, that this case was governed by that of Case v. Humphrey ; but he afterwards acquiesced in the views of his brethren.

Motion to be denied.

Stat. tit. 95. ch. 3. (ed. 1808.)