Bassett v. Den and al. BASSETT v. DEN AND AL. Certiorari in matter of Road. The use the word "declare" in the oath of a Surveyor of Highways, is synonymous to "promise," required by the Statute; and is not cause for reversal. The not filing of Surveyors' official oaths but only a copy, with the County Clerk, is not so material an error, as to vitiate their proceedings. The official affirmation of one of the Surveyors, was, "I do solemnly and sincerely declare and affirm," instead of “promise and affirm," as directed by the Statute: Elm. Dig. 575. And the official oaths of two of the Surveyors had not been transmitted to the Clerk of the County, within twenty days after their election, as the law requires: Elm. Dig. 578, but the Township Clerk had retained the originals, and transmitted copies only, to the County Clerk. For these reasons, R. P. Thompson for the plaintiff in Certiorari, moved to set aside the return of the Surveyors, and cited Sheppard v. Sheppard, 5 Halst. 250; Engle v. Blair, 6 Halst. 339; Schenck v. Ayres, 2 Green's R. 311; The New Brunswick Steam Boat Company v. Baldwin, Id. 310; and The State v. Green, Id. 88. W. N. Jeffers contra, cited Perry et al. v. Thompson et al. 1 Harr. R. 72. BY THE COURT. Both objections must be overruled. The omission of the township clerk to transmit the official oaths of the surveyors to the county clerk, did not vitiate their election to office; nor their appointment by the court of Common Pleas. It is admitted, that the two surveyors, whose oaths were not sent to the county clerk, had been duly elected, and regularly sworn into office. They were then lawful surveyors of the highways, and qualified to act as such, though the township clerk may have incurred a legal censure for the neglect of his duty. As to the variance between the official affirmation of one of the surveyors, and that prescribed by law, it is quite too unimportant to form the basis of a judicial decision, in a matter of so much interest to the public. The statute, it is true, uses the word "promise;" Van Campen v. Ribble et al. but according to Walker, to promise, is to make a "declaration of some benefit, or an assurance of some ill. To say, then, "I declare that I will," do so and so, means exactly the same thing, and imposes precisely the same obligation as the words, “ I promise that I will" do so and so. Far, as we have gone in requiring a strict adherence to forms prescribed or directed by statute, we have not in any of the cases cited, nor in any other, now recollected, gone so far, as to vitiate a proceeding, otherwise regular, because a word, precisely of the same meaning, in the connection in which it is used, with that required by, or mentioned in the statute, has been adopted. The return of the surveyors, must be affirmed, with costs. Return affirmed. VAN CAMPEN v. RIBBLE ET AL. Certiorari to Common Pleas of Warren County, on matter of Appeal. The Court of Common Pleas, upon satisfactory proof of the loss of the proper affidavit, to obtain an appeal, and that it was sent up with the appeal papers, may permit a new affidavit to be substituted in its place. The affidavit for the purpose of obtaining an appeal, if made by one or more of the appellants, is sufficient. It is not requisite that all should join in it. The plaintiff in Certiorari, was plaintiff below. On the trial before the justice, he obtained a verdict and judgment. The defendants appealed: the plaintiff moved to dismiss the appeal on the ground that no affidavit was on file, to warrant an appeal, as required by law; Elm. Dig. 291, sect. 6. This motion, the court refused, and permitted the appellants to make and file a new VOL. II. 2 E Van Campen v. Ribble et al. affidavit upon proof made before the court, that an affidavit pursuant to the statute, had been regularly made and filed with the justice, at the time of filing with him the appeal bond; and that the same had been lost, since it had been returned by the justice with the appeal bond and transcript, to the court of Common Pleas. The new affidavit was made by two only, of the four defendants in the cause. The appeal was tried, and the judgment reversed. S. R. Hamilton, for the plaintiff in Certiorari, insisted; First, That the court of Common Pleas, erred, in permitting a new affidavit to be put on file: Second, That an affidavit made by two only of the appellants, was not sufficient. HORNBLOWER, C. J., delivered the opinion of the court. These objections are not well taken. It is true, the Common Pleas had no jurisdiction of the appeal, unless an affidavit pursuant to the statute had been made and filed with the justice, and sent up by him with the other papers in the cause. But this had been done; and the court upon legal and satisfactory evidence of that fact, and that the affidavit had since been lost or destroyed, did right in permitting a new one to be substituted in its place. Nor was it necessary that all four of the appellants should join in the affidavit. If made by one or more of them, it was sufficient. The statute says, "the party demanding an appeal, shall file with the justice, an affidavit made, by the said party" &c. The word "party" it is true, comprehends all the persons, who are plaintiffs or defendants in a cause; and a literal compliance with it, might require all the appellants to unite in one affidavit. But this would be an unreasonably strict construction. The object of the statute is to prevent vexatious and dilatory appeals; and this is sufficiently guarded against, by requiring the affidavit of any one of several appellants. It would not only be extremely inconvenient, but sometimes impossible to get all the appellants congregated for the purpose of making the necessary affidavit. In 2 Green's R. 440, we held that the affidavit of the President of a Corporation, was sufficient to sustain an appeal by the Corporation: and appeal and Certiorari bonds, although The State v. Gulick. required by statute, to be entered into by the "party," have always been held sufficient if executed by third persons, as sureties for the parties. All the judges concurred. Judgment affirmed. THE STATE v. GULICK. Sur attachment for contempt, &c. On issuing an attachment for contempt of court, in not performing an award, a different attorney from him who was attorney on record in the original suit, may be appointed by the party, and without a substitution entered of record, or ordered by the court. Such writ is not in the nature of the civil process of ca. sa. And it is not requisite to indorse the sum due, in words at length, upon the attachment. The Sheriff of Mercer county having brought the defendant into court on an attachment for not performing an award, the Attorney General moved that he stand committed &c., until he perform the award or be otherwise discharged according to law. J. S. Green, for the defendant objected: First, That C. L. Hardenbergh was attorney on record, for McClure, the prosecutor: that the rule to show cause why this attachment should not issue, had been granted on his motion, and all the previous proceedings, conducted by him, as attorney for McClure, and yet this writ had been sued out and signed by R. S. Field, as his attorney, without any rule of court, substituting him as attorney in the place of Mr. Hardenbergh. And, Second, That the contempt complained of, being the non-payment of the money awarded to McClure: this writ must be considered, as in the nature of a ca. sa: and if so, then the amount due, should have The State v. Gulick. been indorsed in words at length, and not in figures. Pract. act. Elm. Dig, 430. Sect. 79. BY THE COURT. Neither of these objections can prevail. Mr. Hardenbergh was attorney for McClure, while the proceedings were purely of a civil character between the parties to the submission and award. After the rule for an attachment had been made absolute, McClure had a right to employ any attorney of this court, and without any order for that purpose, to sue out the attachment. No substitution was necessary, and if it was, a rule for that purpose might be entered nunc pro tunc. Even in suits at common law, it has been held, that after judgment, a party may sue out execution; or bring a writ of error, by a different attorney, without an order to change the attorney. 1 Archb. pr. 25; Tipping v. Johnson, 2 B. & P. 357. The Second objection, is equally unavailable. Admitting that this writ, is in the nature of a civil execution, so far as its object is to compel the payment of money: yet it is not a ca. sa. and therefore not within the 79th section of the practice act. The At He said it Defendant's counsel then offered to read his affidavit, the object of which was, as stated by counsel, to clear the defendant of the alleged contempt; and he insisted, it ought to be read; because, if the motion of the Attorney General prevailed, the defendant, if unable to pay, must be imprisoned for life. torney General opposed the reading of the affidavit. was ex parte: but waiving that; if the defendant was now to be heard under oath, he claimed the right of proposing interrogatories, to be submitted to him. But he insisted it was too late for the defendant to excuse himself: he should have done so, on the rule to show cause: the motion to commit was now a motion of course; and he contended that this was not a case for interrogatories, as in cases of contempt at the common law for which he cited 2 Archb. Pr. 300; Id., 302. : BY THE COURT. The defendant had an opportunity on the rule to show cause; to lay before the court, the fact of his insolvency, or inability to pay, or any other matter going to clear himself of any intention to contemn the rule of court. If he had |