1844. v. Inhabitants of opinion of the Court of Queen's Bench; and that John Loveday, Esq., and the Rev. Charles Francis Wyatt, THE QUEEN clerk, two of her Majesty's justices of the peace for the county of Oxford, were also present at the hearing of BLOXHAM. the said appeal, and were two of the justices making the said order of sessions; and that he, this deponent, did, on the 5th day of February instant, serve the said Charles Francis Wyatt and John Loveday with true copies of the notice hereunto annexed, by delivering a copy of such notice to the said Charles Francis Wyatt personally, and by delivering another copy of such notice to a servant of the said John Loveday, at his dwelling-house at W., in the said county of Oxford. "Sworn at Banbury, in the county of Oxford, this 8th day of February, 1844. "William Munton-A commissioner of the Court of Queen's Bench." Annexed to this affidavit was the notice therein referred to, with the following statement at the foot of it : “This is the notice referred to in the annexed affidavit of Charles Egg, sworn before me, this 8th day of February, 1844.-Wm. Munton." A cross rule nisi for quashing the certiorari having been obtained, on the ground of the insufficiency of the jurat of the affidavit, because it did not appear to be sworn before the commissioner, pursuant to the 29 Car. 2, c. 5, s. 2 Keating and Pashley now shewed cause.-The affidavit is objected to on account of the omission of the words "before me in the jurat; but that omission does not vitiate it, or, at all events, it is cured by the allegation at the foot of the notice, referred to in, and annexed to, VOL. I. D D N. S. C. 1844. v. Inhabitants of the affidavit, inasmuch as all that is required is an THE QUEEN authentication by the commissioner, in order that the Court may see that the affidavit was sworn before a proper authority; and it is therefore sufficient if this can be collected from the whole. In Regina v. Silkstone (a), where a similar objection was taken, that the words in the jurat were "before me," instead of "before us," two justices having been necessarily present, the Court held, that, being a judicial act, every thing should be presumed as having been rightly done. Such should be the presumption here, this being an exercise by a public officer of a duty in which he has no interest, especially as, if he signed his name at the foot of a jurat not sworn before him, he must be testifying to what in his own knowledge was not true. The rule is distinctly laid down in Rex v. Whiston (b). The commissioner professes, at least, to have taken this correctly. [Coleridge, J.-Suppose this had been the case of a marksman, and the jurat contained no statement of its having been read over to him?] There is a prescribed rule for that, which the Court always carries out most strictly; but there is no rule as to this point. Rex v. Whiston (b) is recognised in Rex v. Witney (c), and Doe d. Nanney v. Gore (d). Upon this principle, the jurat of an affidavit, stating it to have been sworn before a commissioner in Ireland "by virtue of a commission forth," omitting the word "issued," was held sufficient; Daley v. D'Arcy Mahon(e); as was also the description, "a commissioner " &c., in Burdekin v. Potter (f). At all events, an amendment will be allowed, as in Ex parte Hall (g), in which case an affidavit was sent back to be made perfect, where the commissioner had by mistake omitted to insert his (a) 2 Q. B. R. 520. (d) 2 M. & W. 320. (e) 6 Dowl. 192. (f) 1 Dowl., N. S., 134; 9 M. & W. 13. (g) 8 Law J., N. S., Q.B.211. own name in the jurat. So, in Downing v. Jennings (a), a mistake made by an officer of the Court, and in Ex parte Smith (b), one by the judge's clerk, was allowed to be amended. In Regina v. Shipston-upon-Stour (c), there was no reference from one instrument to another to make it certain, as is the case here, or it would have been sufficient. This is no statutory requirement, if it were, and had not been complied with, the Court would hold it bad. Regina v. Cartworth (d), Rex v. Emden (e), Poole v. Hobbs (ƒ), and Potter v. Nicholson (g). At all events, the objection is too late. Davies v. Watkins (h). Pigott, contrà.-These proceedings are coram non judice, and perjury cannot be assigned. No jurisdiction appears on the face of the affidavit, because it does not purport to have been sworn before the commissioner. There are two parties to an affidavit, the one who swears to the contents, and the commissioner before whom the affidavit is sworn. This does not purport to be sworn before a person who had any authority to take it. It may have been sworn, but it does not appear to be before a commissioner, as the stat. 29 Car. 2, c. 5, s. 2, from which he derives all his authority, directs. The jurat is a very important part of an affidavit, and should be perfect as shewing the jurisdiction of the party administering the oath. In Regina v. Silkstone (i), there was merely an ambiguity, here there is a want of jurisdiction. The instrument must be perfect when the commissioner puts his name to it, and it cannot be amended by what takes place afterwards. If reference can be made to the notice to explain this affidavit, the (a) 5 Dowl. 373. (b) 2 Dowl. 607. (c) Ante, p. 230. (d) 1 Dowl. & L. 837. (e) 9 East, 437. (f) 8 Dowl. 113. (g) 8 M. & W. 294. 1844. THE QUEEN v. Inhabitants of 1844. THE QUEEN v. Inhabitants of Court may be called upon to travel over several documents to see if a previous affidavit is properly sworn. I Regina v. Shipton-upon-Stour(a), an attempt was made to connect examinations taken on making an order of removal so as to shew jurisdiction. Lord Denman, C. J., says, "The question is, whether the last examination can be taken as connected with the first, or as standing alone. I think it stands alone, and that therefore there is nothing to connect it with the same justices, or with two justices of the county. It is true the names and dates are the same, but I think that we ought not to be left to presume anything as to parties having authority to administer an oath." In Rex v. The Justices of the West Riding (b), it was held that an affidavit must shew the place where it was sworn. In Osbornv. Tatum (c), an affidavit was held bad as not intitled of any Court. Howard v. Brown (d) decides that it must appear that the person before whom the affidavit is sworn is a commissioner. Houlden v. Fasson (e), Pardoe v. Terrett (ƒ). Lord DENMAN, C. J.-In all cases of mere technical objections our first inclination is to get over them, if possible, so that the merits of the case may be investigated. But we must abide by positive rules, and there is no rule more wholesome and proper than that the jurat of an affidavit should state that which is essential to its validity, namely, that the oath was taken before a party who had proper authority to administer it. There is no difficulty in observing this rule, and the constant course of precedents supports it. No direct authority is cited the other way. Cases have been found where the Court has sometimes departed from the strict rule, to adopt what, under particular circumstances, they (a) Antè, p. 230. (b) 3 M. & S. 493. (c) 1 B. & P. 271. (d) 4 Bing. 393. (e) 6 Bing. 236; 3 M. & P. 559. (f) 2 Dowl. N. S. 903. considered a compliance with it; but the variety of these decisions is with me a strong reason for requiring the jurat to be precise and certain. The language of the Court in Rex v. The Justices of the West Riding (a), is very valuable, that "to dispense with these forms is only to get into uncertainty and mischief, and, by a strain of jurisdiction, to help parties through that which they ought to look to themselves,"--and we should invite a degree of negligence if we departed from it. This seems to me to be an inherent defect; and I do not think, that, when these defects of jurisdiction are properly brought to our notice, we ought to avoid giving force to them. The result will be, to cause more care and greater accuracy in these documents, and less occasion for such applications. I think that, in the case of Ex parte Hall (b), too much indulgence was shewn to the omission; and that, in Downing v. Jennings (c), the words "before me" being struck out did not form part of the jurat when the words "by the Court" were substituted. WILLIAMS, J.-I am of the same opinion. I think it an unwise and unsafe mode of proceeding to sustain one instrument by reference to another. Looking at the affidavit, and that alone, it is open to all sorts of doubt and uncertainty. I think that the jurat should clearly be such as is required by the act of Parliament. COLERIDGE, J.-I think that this is not simply an irregularity, but goes clearly to the jurisdiction of the commissioner, being of the very essence of the swearing. As to reference to the other instrument, if we were to admit that in this case, we might be called upon in others to look at some statement made at any time afterwards, (a) 3 M. & S. 494. (b) 8 L. J., N. S., Q. B. 211. (c) 5 Dowl. 373. 1844. THE QUEEN v. Inhabitants of |