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.