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signature and seal were affixed, Sir T. Plumer, M. R., held, that although the affidavit purported to have been sworn before a person calling himself mayor, &c., there was no evidence to show who he was, and that something further was necessary to verify it.1

It is to be observed, that, by the 6 Geo. IV. c. 87, s. 20, every Consul-General or Consul appointed by the sovereign of this country, at any foreign port or place, is authorized and empowered whenever he shall be thereunto required and whenever he shall deem it necessary, to administer at such foreign port or place, any oath, or take any affidavit or affirmation from any person or persons whomsoever, and also to do and perform, at such foreign port or place, all and every notarial acts or act which any notary public could or might be required to do within the United Kingdom of Great Britain and Ireland; and it is enacted, that every such oath, affidavit, or affirmation, and every such notarial act, administered, sworn, affirmed, had, or done by or before such Consul-General, or Consul, shall be as good, valid, and effectual, and shall be of like force and effect to all intents and purposes, as if any such oath, affidavit or affirmation, or notarial act respectively, had been administered, sworn, affirmed, had, or done, before any Justice of the Peace or notary public in any part of the United Kingdom of Great Britain and Ireland, or before any other legal or competent authority of the like nature. Under this Act, therefore, affidavits sworn before any Consul-General or Consul of her Majesty, resident at any port or other place abroad, may be received as evidence in the Court of Chancery, upon producing evidence to prove the signature of such Consul-General or Consul to the jura, and that the person signing the same is such Consul-General or Consul; an affidavit of which fact may, in general, be procured from some of the clerks in the Foreign Office.

It is said that an affidavit from the plantations cannot be read in this Court, unless under the seal of the island,2 which seal must, also, be verified by the affidavit of some person here who knows the seal to be that of the colony.

Where an affidavit purported to have been sworn before a magistrate in India, proof was admitted, from the proceedings in the India House, to show that the person before whom it was sworn was a magistrate.3

1 Garvey v. Hibbert, ubi supra.

Annesley v. Earl of Anglesey, 1 Dick. 90.

Hutcheon v. Mannington, 6 Ves. 823.

An affidavit must be correctly entitled in the cause or matter in which it is made; for an affidavit made in one cause, cannot be read, to obtain an order in another; it will, however, be sufficient if it was correctly entitled when it was sworn, although the title of the cause may have been subsequently altered by amendment; thus, where, at the time an affidavit was made, there were three defendants in the cause, and the affidavit was entitled in the cause accordingly, and afterwards the plaintiff amended his bill by striking out the name of one of the defendants, and then moved for and obtained an injunction on the affidavit as it was originally entitled, upon a motion to discharge the order for the injunction, on the ground that the affidavit on which it was obtained was improperly intituled, the V. C. of England refused the motion with costs.2

In all affidavits the true place of residence, description, and addition of every person swearing the same must be inserted.3 This rule, however, will not apply to affidavits by parties in the cause, who may describe themselves, in the affidavit, as the above-named plaintiff, or defendant, without specifying any residence or addition or other description: and even where a plaintiff so described himself in an affidavit, and it appeared, upon inspecting the office copy of the bill, that no addition, had been given to him in the bill, the affidavit was considered sufficient. In that case, also, there were several plaintiffs, and the plaintiff making the affidavit described himself as "the above-named plaintiff," whereas, it was objected, that he ought to have called himself "one of the above plaintiffs," but the objection was overruled."

With respect to the form of affidavits, the 126th Order of May, 1 Lumbrozo v. White, 4 Dick. 150.

2 Hawes v. Bamford, 9 Sim. 653. Although, in ordinary cases, the Court will disregard the misentitling of a paper, which could not have misled the opposite party, it is otherwise as respects affidavits; because the misentitling of an affidavit will exempt the defendant from the punishment of perjury, although his oath is false. Hawley v. Donnelly, 8 Paige, 415. See Stafford v. Brown, 4 Paige, 360. Where there are several defendants, and there is but one suit pending between the plaintiff and the defendant first named therein with others, it is sufficient in the entitling of an affidavit, to entitle it in the name of the plaintiff against the first defendant and others, without setting forth the names of all the defendants at length. White v. Hess, 8 Paige, 544.

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1845, directs, that "All affidavits are to be taken or expressed in the first person of the deponent."

The 127th of the same Orders directs, that " All copies of affidavits are to be ready for delivery within forty-eight hours after the same are bespoke."

By the 128th Order, "Any solicitor, party, or person, filing an affidavit, not taken or expressed in the first person of the deponent, is not to be allowed the costs of preparing and filing such affidavit in taxation of costs."

The affidavit must commence by stating, that the party maketh oath and saith, &c., for even though the jurat express that the party was sworn, it will not be sufficient unless the affidavit also state that the party maketh oath.1

Where the deponent is a marksman, the jurat will be:

Sworn, &c., the whole of the above affidavit having been first read over and explained to the said A. B., who appeared perfectly to understand the same, he made his mark in my presence.

Where a marksman signed an affidavit with his name at length, his hand having been guided on the occasion, the V. C. of England ordered it to be taken off the file.2

An affidavit must be true in substance, with all necessary circumstances of time, place, manner, and other material incidents; it must also be sufficient to sustain the case made by the motion or petition of which it is the groundwork.4

It is to be observed, particularly, that every affidavit of service of writs, or of orders, upon which process of contempt is to be founded, must truly and fully prove good service; and that if the plaintiff's name, the Court, the return of the writ, or anything material, be omitted, no attachment can be thereupon regularly

1 Phillips v. Prentice, 2 Hare, 642.

2

v. Christopher, 10 Sim. 409. For the form of the jurat upon other occasions, see ante, p. 754.

3 Where the affidavit deposes to words spoken, the addition of “or to that ef fect," is a proper precaution; Ayliffe v. Murray, 2 Atk. 60. An affidavit that the defendant has a good defence, without stating the nature and substance of it, is not sufficient. Sea Ins. Co. v. Stebbins, 8 Paige, 563. It is not the practice to receive a general affidavit of merits. The party must state upon oath what such merits are, to enable the Court to see whether they are not mere imaginary; and in order that the defendant may be liable to punishment for perjury if his athidavit is false. Meach v. Chappell, 8 Paige, 135.

4 Hind. 451.

issued; for, until a due service be shown, no contempt appears to the Court.1

An affidavit must also be pertinent and material, without needless tautology and impertinent matter or other prolixities. Scandalous and irrelevant matter should be carefully avoided, and, if any such are inserted, they may be expunged by the same process as scandal or impertinence in a bill or other pleading. We have seen, moreover, that the Court is now enabled, by the 122d Order of May, 1845, at once to declare an affidavit to be of improper length, or to refer it to the Taxing Master.

If the party complaining of scandal or impertinence in an affidavit, proceeds by reference, he must, as we have seen, take exceptions in writing; and care must then be taken that he do not file affidavits in opposition to such parts of the officer's affidavits as he has excepted to, lest it may be construed as a waiver of the exceptions. Pending a reference for impertinence the affidavits cannot be used, though the Court, if necessary, may put the party upon terms.6

It may be mentioned here, that, where a whole petition was recited in an affidavit of service, the costs were ordered out of the solicitor's pocket.7

Affidavits ought to be fairly written in one hand, without blots 1 Hind. 453.

Ibid. See Meach v. Chappell, 8 Paige, 135.

For the course of proceeding upon scandal and impertinence in a bill, see ante, p. 353 et seq. It is to be observed, that this course of proceeding applies only to scandal and impertinence in affidavits to be used in Court; where they are to be used before a Master a different course of proceeding to get the scandal or impertinence expunged must be adopted, see ante, p. 1195. It is competent for the Court, upon the mere examination of an affidavit or other paper read before it, on a motion, to order scandalous or impertinent matter contained in it to be expunged without reference to a Master, and to charge the proper party with the costs. Powell v. Kane, 5 Paige, 265. A party who makes an affidavit to oppose a motion, is only authorized to state the facts; and it is scandalous and impertinent to draw inferences or state arguments in the affidavit, reflecting on the character or impeaching the motives of the adverse party or his solicitor. Powell v. Kane, 5 Paige, 265.

* Ante, p. 361.

Bickford v. Skewes, 8 Sim. 206.

Pearse v. Brook, 3 Beav. 337.

Ex parte Smith, 1 Atk. 139. If a solicitor is compelled to pay the costs of expunging scandalous or impertinent matter, he has no legal or equitable claim upon his client to refund the amount. Powell v. Kane, 5 Paige, 265.

or interlineations of any words of substance, otherwise the Master may refuse to accept them; or if he does accept them, the Clerk of Affidavits may refuse to file them. Where, however, small blots or interlineations happen, the Master usually marks them, in the margin, with his initials.2

The time for swearing affidavits, at the public office, is between the hours of ten in the morning, and two in the afternoon, and of six and eight in the afternoon. They may be sworn at a Master's chambers or private house, at any time. If sworn before a Master extraordinary in the country, the Master must, at the foot, express the name of the town and country where it is taken, otherwise it will not be filed.3

The party swearing the affidavit must subscribe his Christian and surname on the left hand thereof. The jurat is written on the right. Any irregularity, in the form of the affidavit or of the jurat, will be a ground for the Court refusing to have read.4

It is directed, by various Orders of the Court, and is the invariable rule of practice, "That all affidavits of this Court, (excepting those only which belong to the Supplicavit Office,) shall before the same be exhibited in Court, or otherwise produced to ground any order, writ, process, or proceeding of Court thereupon, be brought into the office for registering affidavits, and be there duly filed and kept, and that neither the Registrar of the Court, his clerks, or deputies, shall, or do, at any time, draw up, sign, or set his or their hand or hands unto any order whatsoever grounded on any affidavit, unless such affidavit be first filed and registered with the Registrar of Affidavits, and attestation brought and

1 Hind. 451.

Ibid.; and see Beames's Ord. 148.

Hind. 452; and see Beames's Ord. 148.

* Ibid. As to the form of the jurat, see ante, p. 754. If the deponent is blind, the officer should certify in the jurat, that the affidavit was carefully and correct ly read over to him, in the presence of such officer, before he swore to the same. Matter of Christie, 5 Paige, 242. So where the affiant has been found by the inquisition of a jury to be a lunatic, the officer before whom the affidavit is sworn, should state in the jurat, that he has examined the deponent for the purpose of ascertaining the state of his mind, and that he was apparently of sound mind, and capable of understanding the nature and contents of the affidavit. Matter of Christie, 5 Paige, 242.

5 See Bloodgood v. Clark, 4 Paige, 574, 576. Now the Clerk of Affidavits.

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