The decisions on this point have been inconsistent, because it was not deemed sufficiently important to receive much consideration; and convenience requires that the practice in regard to it be settled. We have therefore carefully examined the words of the act, and find that they peremptorily require the affidavit to be made by the party. This will doubtless occasion no small degree of trouble and perhaps vexation; but were we to be drawn from the plain directions of the law by any thing less than absolute necessity, it would be impossible to predict the point at which we should stop. Shall the attorney be authorized to make the oath in all cases; or only where his client resides out ofthe county, or out of the State, or out of the United States? These are questions which none but the legislature can solve; and it will, no doubt, interfere to remove any serious inconvenience that may be felt. In the mean time it is our business to execute the law as we find it; according to which it is clear that the writ of error issued improvidently.

On hearing the opinion of the court, Hale said that as his object was only to have the practice settled, he would, with the leave of the court, waive his objection; and the motion to quash was withdrawn.