Hallett v. Chicago & Northwestern Railway Co.

1. Amendmeht: of jurat. On the trial, the plaintiff offered in evidence his affidavit of killing of the mare by the defendant, together with notice of service thereof on one of its ticket agents, as provided by chapter 169, act of 1862. This affidavit was sworn to before a notary public, and was authenticated by both the signature and seal of the notary; but there was no reference to his notarial seal in the jurat. The defendant objected to its introduction as evidence, for the reason that there was no reference to the notarial seal in the jurat. The court sustained the objection, but allowed the notary to amend his jurat in that particular; and after such amendment permitted the plaintiff to introduce the same in evidence upon the terms of paying all costs except filing fee. To this ruling the defendant excepted, and thereon arises the only question presented for our decision in this case.

It was held by the court in Riggs v. Bagley (2 G. Greene, 383), that the omission of the clerk, in his attestation of a writ, to refer to the seal of the court, which was affixed thereto, was á technical defect which might *261properly be amended. If a writ whereon, and the proper service thereof, the jurisdiction of the court rests, may be amended in the particular complained of, so as to relate back to and have full effect from its date, it would seem, a fortiori, that an affidavit may very properly be amended in the samb particular and with like effect. See also as to amendments of affidavits, Bunce v. Reed, 16 Barb., 347; Sees v. Snell, 8 How. Pr., 185, and note; Spalding v. Spalding, 3 Id., 297; Freeman v. Walter, 13 Id., 384. In the case of Tunis v. Withrow (10 Iowa, 305), there was no signature, or seal to one affidavit, and no seal to the other. So also in Chase v. Street et al. (10 Id., 593). See also Bev., § 4119.

We do not wish to be understood as holding that the omission to refer to the seal in the jurat was such a defect as to require its rejection, as ruled by the District Court. See Bev., § 4037. If there was error, however, in that ruling, as we are inclined to hold there was, it was not to appellant’s prejudice.

Affirmed.