Affidavit

A statement or declaration reduced to writing, and sworn to or affirmed before some officer who has authority to administer an oath or affirmation. Quoted and approved in Shelton v. Berry, 19 Tex. 154, 70 Am. Dec. 326. It differs from a deposition in this, that in the latter the opposite party has an opportunity to crossexamine the witness, whereas an affidavit is always taken ex parte; Gresley, Eq. Ev. 413; Stimpson v. Brooks, 3 Blatch. 456, Fed. Cas. No. 13,454. An affidavit includes the oath, and may show what facts the affiant swore to, and thus be available as an oath, although unavailable as an affidavit; Burns v. Doyle, 28 Wis. 460. By general practice, affidavits are allowable to present evidence upon the hearing of a motion, although the motion may involve the very merits of the action; but they are not allowable to present evidence on the trial of an issue raised by the pleadings. * Here the witnesses must be produced before the adverse party. They are generally required on all motions to open defaults or to grant delay in the proceedings and in other applications by the parties addressed to the favor of the court. Formal parts. — An affidavit must intelligibly refer to the cause in which it is made. The strict rule of the common law is that it must contain the exact title of the cause. This, however, is not absolutely essential; Harris v. Lester, 80 111. 307. If not entitled in the cause it cannot be considered in opposition to a motion for preliminary injunction; Goldstein v. Whelan, 62 Fed. 124. The place where the affidavit is taken must be stated, to show that it was taken within the officer's jurisdiction; 1 Barb. Ch. Pr. 601; if the officer in signing the jurat fails to add the name of the county for which he is appointed, if it already appears in the caption, it will not be defective; Smith v. Runnells, 94 Mich. 617, 54 N. W. 375. The deponent must sign the affidavit at the end; Hathaway v. Scott, 11 Paige Ch. (N. Y.) 173. Tbe jurat must be signed by the officer with the addition of his official title. In the case ot some officers the statutes conferring authority to take affidavits require also his seal to be affixed. In the absence of a rule of court or statute requiring it, if affiant's name appears in an affidavit as the person who took the oath, N. W. 368; Shelton v. Berry, 19 Tex. 154, 70 Am. Dee. 326, or if his name is omitted in the body of the verification but it is properly signed, it is sufficient; Cunningham v. Doyle, 5 Misc. Rep. 219, 25 N. Y. Supp. 476. If the notary fails to attach his seal to an affidavit of an assignee in insolvency, it is not void; Clement v. Bullens, 159 Mass. 193, 34 N. E. 173; if he omits to add his name in the jurat In an affidavit for a writ of certiorari, the court may permit it to be done nunc pro tunc; State v. Cordes, 87 Wis. 373, 58 N. W. 771; if he omit* to add his title it is not invalid; Jackman v. Gloucester, 143 Mass. 3S0, 9 N. E. 740. In an affidavit which is to be the basis of Judicial action the nature and quality and perhaps the source of information must be set forth, so that the court may be able to ascertain whether the party is right in entertaining the belief to which he deposes; Whitlock v. Koth, 10 Barb. (N. Y.) 78. A "denial upon information and belief, without stating the sources of information and belief, can have no weight as against the appellant's positive affidavit as to what is still due him"; Harris v. Taylor, 35 App. Div. 462, 54 N. Y. Supp. S64. So-called evidence on information and belief "ought not to be looked at at all, not only unless the court can ascertain the sources of the information and belief, but also unless the deponent's statements are corroborated by someone who speaks from his own knowledge"; [1900] 2 Ch. 753. Such an affidavit should show that the persons from whom the information is obtained are absent or that their deposition cannot be obtained; Steuben County Bank v. Alberger, 78 N. Y. 252. In general, an affidavit must describe the deponent sufficiently to show that he is entitled to offer it; for example, that he is a party, or agent or attorney of a party, to the proceeding; Ex parte Bank of Monroe, 7 Hill (N. Y.) 177, 42 Am. Dec. 61; Cunningham v. Goelet, 4 Denio (N. Y.) 71; Ex parte Shumway, id. 258, and this matter must be stated, not by way of recital or as mere description, but as an allegation in the affidavit; Staples v. Fairchild, 3 N. Y. 41; Payne v. Young, 8 N. Y. 15S. See Jurat.

A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, token before an officer having authority to administer such oath. Co.x v. Stem, 170 III. 442, 48 N. E. 906, 62 Am. St Rep. 385; Hays v. Loomis, 34 III. 18. An affidavit is a written declaration under oath, made without notice to the adverse party. Code Civ. Proc. Cal. § 2003; Code Civ. Proc. Dak. § 464. An affidavit is an oath in writing, sworn before and attested by him who hath authority to administer the same. Knapp v. Duclo, 1 Mich. N. P. 189. An affidavit is always taken ex parte, and in this respect it is distinguished from a deposition, the matter of which is elicited by questions, and which affords an opportunity for cross-examination. In re Liter's Estate, 19 Mont. 474, 48 Pac. 753.

— Affidavit of defense. An affidavit stating that the defendant has a good defense to the plaintiff's action on the merits of the case.

— Affidavit of merits. One setting forth that the defendant has a meritorious defense (substantial and not technical) and stating the facts constituting the same. Palmer v. Rogers, 70 Iowa, 381, 30 N. W. 645,

— Affidavit of service. An affidavit intended to certify the service of a wnt, notice, or other document.

— Affidavit to hold to bail. An affidavit made to procure the arrest of the defendant in a civil action.

Z. I. A declaration or statement in writing firmed before some officer having authority to affirmation. The oath or affirmation is essential, been held unnecessary, though required as matter tica It is distinguished from a deposition in being osition.

A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath. An affidavit is a written declaration under oath, made without notice to the adverse party. Code Civil Proc. Cal. § 2003; Code Civil Proc. Dak. § 464. An affidavit is an oath in writing, sworn before and attested by him who hath authority to administer the same. 1 Mich. N. P. 139. An affidavit is always taken ex parte, and in this respect it is distinguished from a deposition, the matter of which is elicited by questions, and which affords an opportunity for cross-examination.

^ A voluntary oath, before some judge or oi Bcer of a court, to evince the truth of certain facts; as, the facts upon which a motion is grounded.'' Afflant. One who makes an affidavit. An affidavit is simply a declaration, on oath, in writing, sworn to by the declarant before a person who has authority to administer oaths.5 It does not depend upon the fact whether it is " entitled " in any cause or in a particular way. Without a caption it is an affidavit.'' It is not necessary that the party sign the statement, unless a statute expressly so require. It is the official certificate which gives authenticity to the written oath." * In common parlance, any form of legal oath which may be taken.'' Hence, in a statute, may mean simply an oral oath. ^ The officer must sign the jurat; otherwise the docinnent is not an affidavit.'' The certificate is no part of the affidavit, but the prima facie evidence that it is the affidavit of the person by whom it purports to have been made." Counter afO-davit. An affidavit made or filed in opposition to the averments contained in another affidavit. Supplemental a£B.davit. An affidavit containing averments upon the same subjectmatter as another affidavit previously presented, and designed to remedy some defect in that other." 1 Tompkins v. Little Hock, &c. R. Co., 15 P. E. 13 (1883). « Ryan v. Carter, 93 U. S. 83 (1876). ' L. affidavit, he has made oath: ad fldem dare, to pledge faith for. • 3 Bl. Com. 304; 3 Tex. Ap. 503. » Harris v. Lester, 80 111. 311 (1875), Scott, C. J. •Hagardine «. Van Horn, 72 Mo. 371 (1880). See 8 Iowa, 3M; 16 N. J. L. 125. ' Baker v. WUliams, 12 Barb. 5-57, 530 (1850). See 77 N. C 331; 28 Wis. 463. 8 Morris v. State, 2 Tex. Ap. 503 (1877); State v. Richardson, 34 Minn. 118 (188.5); 18 id. 90. » Hitsman v. Garrard, 16 N. J. L. 125(1837); Hagardine V. Van Horn, 72 Mo. 371 (1880;. Among the more common affidavits in use in civil practice are: Affidavit of cause of action, which avers that a just cause of action exists. Affidavit of claim, which verifies the statements of facts upon which a claim or demand is made. Affidavit of defense, which ■verifies the statements of facts upon which a defendant resists a demand made upon him. See Defense, 3, Affidavit, etc. Affidavit of or to the merits (q. v.), which is to the sufficiency of the facts whicli constitute a defense in a civil action, instead of resistance upon technical grounds. Affidavit to hold to bail, which is that the cause of action, brought for a civil injury, is valid.; Affidavits serve to verify allegations of fact not already matters of record, and tliereby qualify them for judicial action; also, to initiate remedies, giving to statements the impress of good faith and probable cause. They are no part of the record in a case unless specially made so.^ Compare Complaint, 2; Deposition. See Apparere, De non, etc.; Caption, 2; Jurat; Knowi.edoe, 1; Oath; Becord.

Lat. [from affidare, q. v.] In practice. An oath in writing sworn before some judge or officer of a court, or other person legally authorized to administer such oath; a sworn statement in writing.* To make affidavit of a thing is to testify it upon oath, in writing. 3 BL Com. 304. The party making an affidavit is usually described as "the deponent** (sometimes, but rarely, " the affixint** (q. v.) and in making his statements is said to depose — (" being duly sworn, deposes and says,") — but an affidavit is distinguished from a aeposition, properly so called, by the circumstance that it IS always made ex parte, and without any cross-examination. See Deposition, Depose, Deponent. The term affidavit is also applied, (though not* with strict propriety,) to statements made on affirmation. Affidavits are most commonly used for certifying or proving the service of process, or other matters relating to the proceedings m a cause, or in support of, or opposition to motions, in cases where a court determines matters in a summary way. 3 Bl, Com. 304. 3 Steph. Com. 679. 1 Tidd*s Pract. 491. United States Digest, Affidavit. The term affidavit, now in daily use, is 7 the perfect tense of the old law Latin verb affido, affidare; and Uterally signifies " he has made oath," or " he has sworn." The original meaning of affidare, as applied to law proceedings, was to pledge by oath, to swear to do something, and is constantly used by Bracton in this sense. See Affidare. Thus, in the old law of essoins, the essoiner was required to swear that he would have his principal in court at a certain day, (affidabit essoniator quod habebit dorriinum suum ad cerium (aliumj diein). Bract, fol. 837 b, 351b. And if neither principal nor essoiner appeared at the day, the latter was allowed to excuse both by a new essoin that he could not come, nor have his principal, as he swore to do, (sicut affidavit,) on account of misfortune, (fee. Id. fol. 352 a. The word affidaverunt (they pledged themselves by oath) is used in an old concord made upon a writ of right, 33 Hen. II., cited by Lord Coke. 3 Co. pref. So, in a charter given at length by Blount, dated April 18, A. D. 1160, the words occur, " juravi et affidavi," I have sworn and pledged my oath (to keep the covenants contained in the instrument). Blount, voc. Covenant.

By a gradual extension of meaning, the word affidare came to signify to swear generally, to swear to a thing already done, or to an existing fact, as well as to swear to do a thing in future. Reg, Orig. 29 b, reffula. Hence the use of affidavit, in the third person of the past tense, as the emphatic word of the Latin forms in which oaths were recorded; from which the written oath of the present day has derived its name.

in practice: an oath or affirmation reduced to writing, sworn or affirmed to before some officer who has authority to administer it. Affidavit to hold to batl,is inmany cases required before the defendant can be arrested; such affidavit must be made by a person who is acquainted with the fact,. whether he be plaintiff or not, and must state, lst, an indebtedness from the defendant to the plaintiff; 2dly, show a distinct cause of action; 3dly, the whole must be clearly and certainly expressed. Sell. Pr. 104; 1 Chit. R. 165; S. C. 18 Com. Law R. 69, note; Id. 99.