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Anderson and another v. Morris
By the Court,
Cole, J.
The principal objection taken to the complaint in the case of Taylor vs. Schooner Amelia, is, that the same was not properly verified. Sec. 4, chap. 116, R. S., 1849, declares that the complaint shall set forth the plaintiff’s demand in all its particulars, and on whose account the same accrued. It shall be verified by the affidavit of the plaintiff, or some credible person or persons for him, and shall stand in lieu of a declaration. In the present case the complaint was signed “Henry Taylor,” and a ywai was added in this form: “ Subscribed and sworn before me, this 18th day of September, A. D., 1857. J. H. HiNDS, Justice Peace.” Now assuming that the complaint was not “ verified by affidavit ” in the manner required by the statute, still we think this irregularity was cured by the master’s appearing in the action and going to trial on the merits. Sec. 7 provides that the master, owner, agent or consignee of the boat or vessel, may appear on behalf of such boat or vessel and plead to the action. The master, then, was fully authorized to appear for the boat, and if the complaint was not properly verified, he should have taken an objection to it on that ground, instead of proceeding to trial. Having proceeded to trial, the defect in the complaint — if there was one — must be deemed to have been waived. Ilsley vs. Harris, 10 Wis., 95; Bromley vs.
[692] Smith, 2 Hill, 517; Malone vs. Clark, id., 658; Swartwout vs. Roddis, 5 Hill, 118; Koon vs. Mazuzan, 6 id., 44; Lamoure vs. Caryl, 4 Denio, 370.
The circuit court, therefore, improperly excluded the complaint offered in evidence. The irregularity in the complaint did not render it void. It contained all the necessary' allegations to give the justice jurisdiction, and was sworn to, but not verified by a technical affidavit. It undoubtedly came within the spirit of the statute, if not within the letter, and the defect was cured by the master’s appearing and going to trial.
The judgment of the circuit court is reversed, and a new trial ordered.