The affidavit should not have been entitled, because when it was made there was no suit pending in court. As the affidavit purported to be made in a suit when there was none, the party could not be convicted of perjury for false swearing. In such cases the affidavit cannot be used—it is a nullity. The rule has been too long settled to be now shaken. (The King v. Pierson, Andrews, 313; Rex v. Jones, 1 Str. 704 ; Haight v. Turner, 2 John. 371 ; The People v. Tioga C. P. 1 Wend. 291; Hollis v. Brandon, 1 Bos. & Pull. 36 ; King v. Cole, 6 T. R. 640. And see Whitney v. Warner, 2 Cowen, 499; Roosevelt v. Dale, id. 581; Nichols v. Cowles, 3 Cowen, 345; In re Bronson, 12 John. 460.) The case of Clark v. Cawthorne, (7 T. R. 317,) is not only contrary to other decisions of the same court, but it stands upon no principle whatever.
The statute says, the affidavit must be made “ by the plaintiff in the action, or by some one in his behalf.” (2 R. S. 523, § 7.) But that only means that the affidavit must be made by the person who prosecutes the writ, and who will be the plaintiff when the suit is commenced. The suit is not commenced by the affidavit, nor by the writ, until they are delivered to the sheriff. In Hollis v. Brandon, (1 B & P. 36,) the affidavit to hold to bail was entitled; and Chief Justice Eyre was disposed to get over the difficulty by holding that the affidavit was the commencement of the cause. But after taking time to inquire, he gave it up, and the rule for discharging the defendant out of custody was made absolute.
It is said that the affidavit is perfect without the title of the cause; and that the title may be rejected as surplusage. But the affidavit has the words, “the said plaintiff;” and without a reference to the title, there is nothing to show what those words mean. And besides, it has been held, both here and in England, that the title cannot be rejected as surplusage. (In re Bronson, 12 John. 460; King v. Cole, 6 T. R. 640.)
*57There are many cases where false swearing will be perjury, although no suit was pending at the time. It is so wherever the oath is lawful: and the oath is lawful when it is a preparatory step in legal proceedings ; as on suing out a writ of replevin, or when a motion is to be made for a mandamus, quo warranto, attachment, or the like. But the difficulty here is, that the affidavit purports to have been made in a suit between Samuel Milliken, jr. plaintiff, and Lewis Kenyon defendant, when in fact there was no such suit. As there was no such suit, the affidavit was not a lawful, but an extra-judicial oath. On this ground, such affidavits have been held to be nullities.
Without an affidavit, the sheriff had no authority to execute the writ. (Milliken v. Selye, 6 Hill, 623.) The goods were not, therefore, in the custody of the law; and the defendants had a right to distrain them.
When the affidavit which accompanies the writ in replevin is good so far as it goes, it may, perhaps, be proper to allow an omission to be supplied by a further affidavit. (Cutler v. Rathbone, 1 Hill, 204.) But when the writ is executed without any affidavit, or, what is the same thing, with one which is a mere nullity, it is difficult to see how the proceeding can be legalized by afterwards making the proper affidavit. It is enough, however, to say, that there has been no amended or new affidavit in this case.
As this point is fatal to both of the pleas, it is not necessary to srmider the other questions made at the bar.
Judgment for defendants.