Carrington v. Hamilton

delivered the opinion of the court:

The 51st section of the Revised Statutes, regulating the practice of the Circuit Courts, (627,) requires, that every declaration, statement, or other pleading, should be signed by the party filing the same, or by his attorney. The first section of the same act provides, that suits at law may be commenced in any Circuit Court of this State, by filing in the office of the Clerk of such Court, a declaration, petition, or statement in writing; and the second section declares, that no original writ shall be issued, until the declaration, petition, or statement shall be filed in the Clerk’s office.

These sections, taken together, clearly show, that the statute requires the declaration to be signed, before it can be filed; and no writ can properly issue upon an unsigned declaration. The declaration is the authority to issue the writ; and if the party fail to file a proper one, he is not entitled to the writ.

The statute of amendments cannot benefit the party in this instance. He can only amend when there is .something to amend by; therefore, the Court erred in not striking the pretended declaration from the files.

The exceptions of the plaintiff in error having presented these facts to our consideration, the judgment below must therefore be reversed, with costs, and the Circuit Court directed to strike the paper purporting to be a declaration, from the files of the Court.