Berrien v. Westervelt

12 Wend. 194

Opinion

By the Court,

Sutherland, J.

The coroner had no right to administer the oath to the plaintiff. He is not of the number of those officers-to whom general power is given to administer oaths or take affidavits, 2 R. S. 284, § 49; and no special authority is given to him to take an affidavit in any cause depending in court. The section referred to in 2 R. S. 552, § 11, does not contemplate a proceeding in an action depending in court; and although the sureties to a replevin bond may be sworn and examined by the coroner, he is not authorized to take an affidavit to be used in a cause. The affidavit not having been sworn to before a proper officer, was a nullity, and the defect is fatal. The statute forbids the executing of the writ, unless the affidavit be made and sworn to before some proper officer. 2 R. S. 523, § 7. The compliance with the statute is in the nature of a condition precedent.

Motion granted.