Bill v Bament
Jurisdiction | England & Wales |
Judgment Date | 11 November 1841 |
Date | 11 November 1841 |
Court | Exchequer |
English Reports Citation: 151 E.R. 1060
EXCH. OF PLEAS.
S. C. 10 L. J. Ex. 302; 5 Jur. 510. See further, 9 M. & W. 36.
1060 BILL V. BAMENT 8M.&W.S17. [317] bill v. bament. Exch. of Pleas. May 8, 1841.-Where an affidavit was sworn in the usual way at a Judge's chambers, but through mistake was not laid before the Judge, and therefore the jurat was not signed by him, it was held irregular, and an order obtained upon such affidavit for a capias, and all the proceedings thereon were set aside ; although after some days (but after the execution of the capias), the affidavit was laid before the Judge, and signed by him. [S. C. 10 L. J. Ex. 302 ; 5 Jur. 510. See further, 9 M. & W. 3G.] Whateley had obtained a rule to set aside an order of Alderson, B., made under the stat. 1 & 2 Viet. c. 110, s. 3, for the arrest of the defendant, together with the capias issued thereon, the bail-bond, and all subsequent proceedings, for irregularity, with coats: the objection being, that the jurat of the affidavit upon which the application for the order was granted, was irregular. The jurat was as follows:-"Sworn by &c., at my Chambers in Rolls Gardens, the 24th day of March, 1841, before me, - ;" but there was no signature of the Judge. It appeared that the affidavit, when sworn, had been marked by the Judge's clerk with his initials, but through mistake not then presented to the Judge for signature ; but some days afterwards, and after the arrest of the defendant, it was presented to the learned Judge (Alderson, B.), who signed it as of course, on seeing the initials of his clerk. E. James shewed cause. This case is quite different from that of a mistake or deficiency in the body of the affidavit, or of the jurat. They are the act of the deponent or his attorney, arid must be complete before the affidavit is a perfect document; and they have only themselves to blame if it be done incorrectly. But the signature of the Judge is affixed after the affidavit is sworn, and is in no respect essential to its validity : it is a mere memorandum by the Judge that the affidavit has been sworn. [Aldersou, B. The Judge's signature is part of the jurat.] Perjury may equally be assigned upon the affidavit, although the Judge's signature be omitted. [Alderson, B. No doubt; but the question here is, whether the subsequent signature of the Judge can have a retrospective effect so as to validate intermediate acts.] Whateley, in support of the rule, insisted that the case [318] did not differ from that of any other irregularity on the face of the jurat; that in such cases it was not permitted even to shew to the Court, by affidavit, that all was regularly done : and that there onght to be on the files of the Court, before the issuing of the capias, such a document as would warrant the order of the Judge, and that it could not afterwards be made good by relation. lord abinu-kr, C. B. Unless we can be convinced that this was such an affidavit as the plaintiff could proceed upon without a Judge's signature being affixed to it at all, we must admit the objection. The signature being added subsequently, after the issuing of the capias, does not cure the original omission. The rule must be absolute with costs, but no action to be brought. parke, B. This order was not only made...
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