Randall v. Baker

Tbe question presented by this ease is, what is the just construction of tbe certificate which tbe magistrate has made of tbe oath tbat is annexed to tbe *337mortgage? That certificate is as follows : “February 12, 1848. Then the said H. & D. A. Burgett and Sylvanus Randall took and subscribed the above oath, as prescribed by law.” This is to receive a fair construction, according to the subject matter. What is this reasonable construction ? Are we to understand that the firm of H. & D. A. Burgett, as a firm, took the oath ? That would be an absurd and senseless construction. We can only understand that the persons designated as H. & D. A. Burgett took the oath individually. We cannot understand how a firm, as such, can swear.

It does not appear whether there were two persons in the firm or more; but the only reasonable construction, and that admitted by the defendant, is, that all these persons took the oath; that is, all the persons known by the appellation of H. & D. A. Burgett. The swearing then was, according to the certificate, well enough.

But the affidavit is said not to be signed by all, but only by one, in the partnership name ; and, therefore, the person who signed as well as swore is not identified by the signature.

A signature by one and a swearing by one is sufficient; Statutes of 1845, ch. 235; and we do not see why the person signing may not sign the partnership name. The name does not identify the party who placed it there, but the handwriting; and this must be proved, whether it expresses the name of the party writing, or of the firm. The partner who signs does so in behalf of the firm, and that he manifests by writing the name of the firm. The result is, that one signs and all swear. It is enough if the one who signs also swears. There is no harm in their all swearing, and there is no evidence that the certificate which so represents the fact is not true.

But it is objected that the certificate does not show that the oath was several. Pardoe v. Terrett, 5 Mann. & Gr. 291. The statute has prescribed the form of an affidavit, *338which is, “We severally swear,” &c. But this form need not be literally pursued. A substantial compliance with it is all that is required, and the word “severally” is entirely surplusage, and may be omitted without apparently altering the sense. The swearing cannot be otherwise than several. Several witnesses or mortgagers or mortgagees may be and often are sworn together, and the words used are, “you solemnly swear.” The oaths are necessarily several, and a joint oath is hardly supposable. It is difficult to imagine such an oath unless it be such that one is hable for perjury if the other swears falsely. We believe the certificate is unexceptionable. There must, therefore, be

Judgment on the verdict.