Cohen v. Manco

By the Court. Penning, J., delivering the opinion. Was the court right in holding, first, that the affidavit ought to have been signed by the plaintiff; secondly, that the defect of a want of his signature was not amendable ? We think it was. The attachment act says, that “ before process of attachment shall issue, the party shall make affidavit,” &c. Acts of1856, 25. An affidavit is an oath in writing, signed by the party making it. What is not so signed, is not entitled to be called an affidavit. Then, the act gives the form of the “ affidavit,” and in that form a place seems left for the signature of the plaintiff. — Ib. 35. , The old attachment act merely used the word oath and yet the construction of it was, that the oath must be one in writing, signed by the party taking it. We think, then, that the affidavit ought to have been signed by the plaintiff. The act, in the provision it makes for amendments, mentions, expressly, the attachment, the bond and the declaration, but is silent as to the affidavit. This, we think, significant of an intention, that the affidavit was to be not amendable. So we think that the court was right on both questions. Judgment affirmed.