Farrow v. Dutcher

Per Ottriam. We are of the opinion that the District Court of the Fourth Judicial District erred in permitting the affidavit on the back of the writ, which is a condition precedent to the service of the writ by arrest, to be amended by the insertion of the words, after the word “claim,” “that is due.” The plaintiffs contend that the insertion of these words did not materially alter the meaning of the affidavit, but that they were implied in the statement that the plaintiff has ‘ 1 a claim on which he expects to recover in the action.” We do not assent to this argument. The framers of the statute, for good reason no doubt, saw fit to require, in addition to the other statements, the statement that the claim is due, and we see no reason for dispensing with the allegation. As the affidavit is the foundation on which the right to arrest is based, it must be strictly complied with, or the arrest is unlawful. Spice v. Steinruck, 14 O. St. 213, (219); Whiting v. Trafton, 16 Me. 398 ; Probate Court of Hopkinton v. Lanphear, 14 R. I. 291. The plaintiffs rely, in support, of the right to amend, on Hudson v. Fishel, 17 R. I. 69, contending that the affidavit on the back of a writ is a part of the process that, under the broad powers of amendment given by statute, is amendable. It is true that in that case the court suggests the query whether the affidavit might not be regarded as part of the process, but it does not so hold. We think that it is not to be -regarded as a part of the process, but rather as a condition authorizing the service of process in a particular way, 1. e. by arrest. The defect in Hudson v. Fishel consisted in the omission of the official title of the magistrate, before whom the affidavit was made, from his certificate of the administration of the oath. Everything which the law required had in fact been complied with in that case, the magistrate being a magistrate at the time of administering the oath. It is evident, therefore, that the case was very unlike the case at bar, and we do not think that it constitutes an authority in support of the plaintiff’s position. Exceptions sustained, and case remitted to the District *717 Court of the Fourth Judicial District with direction to quash the writ and dismiss the suit. John J. Arnold, for plaintiff. Job S. Carpenter, for defendant.