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or to be performed, official, public, or private, to the public or an individual or individuals, corporations, companies, associations, etc., by words, writing, or printing. See ADVERTISEMENT; NOTICE.

Obedience is the compliance with a command, prohibition, or known law and rule of duty prescribed. To constitute obedience, the act or forbearance to act must be in submission to authority; the command must be known to the person, and his compliance must be in consequence of it.

A child, an apprentice, a pupil, a mariner, and a soldier, respectively owe obedience to the lawful command of the parent, the master, the teacher, commander or captain of the ship, and the military officer having command, and in case of disobedience, submission may be enforced by correction.

Officers who obey the command of their superiors having jurisdiction of the subject matter are not liable for their acts. A sheriff or constable may, therefore, justify a trespass under an execution, where the court has jurisdiction, although such execution was irregularly issued.g

Officers acting in the scope of their jurisdiction and authority are justified in all their acts; exceeding this they become liable as a private individual.

Omission is a neglect or failure to do something which a person has power to do, or which duty required to be done, or which the law requires.

When a public law enjoins duties upon certain officers, and they neglect to perform them, they may be indicted for the omission. The omission by private individuals may be productive of loss or injury.

Omission may be innocent when no duty demands performance, and criminal when the duty is neglected.

Overt acts are open acts as distinguished from secret design or intention not carried into effect.

The mere contemplation or intention to commit a crime, although a moral sin, is not an act amenable to the law. The mere speculative wantonness of a licentious or mischievous imagination, however dangerous or even sanguinary in its object, can in no case amount to a crime; but the instant any overt act is manifested the offender becomes amenable to the law. See CRIMINAL Law.

Perfidy is the violation of faith in agency, office, allegiance, connubial engagements, and transactions in the highest official circles. It is the act of one who has engaged his faith to do a thing and does not do it, but does the contrary.h

Performance is the act of doing something previously contemplated or stipulated for the execution or completion of a thing. It is the act by which one is exonerated from the obligation of his contract or undertaking, previously made or entered into.

g-Wolff, 390. h-Chitty Pr. 75; Hammond N. P. 48.

Personal representatives, while acting in such capacity and within the scope of their authority, are liable only as such. Where they exceed that authority they become personally and individually responsible for their acts.

Persuasion is the persuading or the influencing the mind with arguments or reasons offered, or by anything that moves the mind or passions, or inclines the will to a determination.

While the persuasion is confined within those limits which leave the mind free it may be used to influence another. But if such persuasion so far operates on the mind of the person influenced that he will be deprived of a perfectly free will, it will vitiate his act.

Public acts. See STATUTE LAW.

Publication is the publishing or offering to public notice, notification to the people at large, either by words, writing, or printing. The act by which a thing is made public.

To become effectual, awards, wills, laws, etc., must be published, i. e., made known. In this manner, also, public and judicial sales are announced, the service of legal process made, and many other acts proclaimed.

Publicity is the state of being public, open to the knowledge of the community, perform ance or transaction of business in the view of all persons who choose to be present.

Courts must be open to the public; there can be no secret tribunal, except the grand jury, which acts in the interest of the public, and whose functions are merely for investigation, and not trial.

The acts of the legislature must be made public before they are of effect. They are, in general, made public either by their being placed upon a record provided for that purpose, and at all times open to public inspection, or by being made public through the medium of newspapers, or by distribution to the various officers by law entitled to them.

Ratification is the giving sanction and validity to something done by another. An agreement to adopt an act performed by another for us.

But

As a general rule, a person may elect whether he will adopt an unauthorized act or not. having once ratified the act, upon a full knowl edge of all the material circumstances, the ratification cannot be revoked or recalled, and he becomes bound as if he had originally authorized the act. See AGENCY; CONTRACTS.

Reasonable acts are those governed by and under the influence of reason. They are such as the law requires.

When an act is unnecessary, a party cannot be required to perform it as a reasonable act,! and a court will neither enforce its performance nor give a remedy for its non-performance.

Refusal is the denial of anything demanded, solicited, or offered for acceptance; failure to perform a duty or agreement. In some cases a neglect to perform a duty which a party is i-9 Price Exch. 43; Velv. Platt Cov. 342, 157.

required by law, or his agreement, to do, will amount to a refusal.

Refusal is also the right of taking in preference to others: the choice of taking or refusing. Option. Pre-emption. Thus a person has the refusal of a horse or a house, or the refusal of a place of business or an employment.

Servants are those persons who engage, hire, or let their services to another, to be employed at any work or occupation whatever, for the benefit of their employer, and for compensation, subject to the conditions of their employment.

A master is responsible for the tortuous acts of his servant, which were done in his service. The responsibility of the master grows out of, and begins and ends with, his control of the servant. On this ground rests the well-established distinction between the negligence of the servant and his wilful and malicious trespass; the act in either case being done in the course of his employ. For the former the master must answer; for the latter he is not held liable, unless the trespass is proved to have been authorized or ratified by him.1 The master is responsible for what is done by one who is his servant in fact, for the reason that he has such servant under his constant control, and may direct him from time to time as he sees fit; and therefore the acts of the servant are the acts of the master, because the servant is at all times only an instrument; and one is not liable for a person who is servant only by construction, excepting so far as this essential element of control and direction exists between them. When a master gives general directions to his servant, trusting to his discretion, the master may be liable for his servant's misuse of his discretion; but if he gives specific directions, and the servant transcends them, the master is not liable. Where the negligent party exercises a distinct and independent calling, his employer is not liable, and, if the negligence be committed in the performance of a piece of work undertaken in consequence of a special contract, in such case the contractor is solely responsible.

Skill is the familiar knowledge of any occupation, art, or science, with readiness and dexterity in its execution, performance, or application to practical purposes.

Every person who purports to have skill in a business, and undertakes for hire to perform it, is bound to do it with ordinary skill, and is responsible civilly in damages for want of it.m In some instances they will be responsible criminally. See MEDICAL LAW.

The degree of skill and diligence required rises in proportion to the value of the article and delicacy of the operation.o See BAILMENTS.

i-1 East. 106; 4 B. & Ald. 590; 8 A. & E. 512; 1 Mo. & P. 241; 3 C. & P. 167; 30 E. L. & E. 167; 17 Mass. 479; 19 Wend. 343: 2 Comst. 479; 27 Conn. 274; 7 N. H. 227; 8 T. R. 531; 14 How. 468; 7 Cush. 385. j-28 Ills. 434. K-12 A. & E. 737; 4 Q. B. 298; 2 Mich. 368; 11 Wis. 180. 1-7Q. B. 960; 9 Exch. 702. m-11 M. & W. 483. n-2 Russell Crimes, 288. Jones Bailm. 91; a Kent Comm. 458, 463; 1 Bell Comm. 459; 2 Ld.

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When an act is to be done within a certai period from a particular time, as, for example, within ten days, one day is to be taken inclusive and the other exclusive."

Transfer is the act by which the owner of a thing delivers it to another person with the intention of passing his rights in it to the latter; to make over, to pass, to convey, to sell, to give.

The title to land is conveyed by deed, the property in a bill of exchange is transferred by indorsement, stocks are transferred by assignment, or entering the same under the name of the purchaser in the proper book.

Uncertainty is the want of certainty; that which is unknown or vague.

When the act to be performed is so vague in its terms that it cannot be certainly under stood, it is of no effect. The act must be certain in its essence, quality, and quantity, and that is certain which may be made certain.'

Certainty is required in contracts, wills, pleadings, judgments, and indeed in all the acts on which courts have to give judgment; and if they be so vague and uncertain as not to be understood, they are, in general, invalid." See CONTRACTS.

Vacation is the making void, or of no validity; annulling.

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An entry which has been made upon a public record, through fraud or imposition, may, upon application, be vacated. A charter, a franchise, an office of trust, etc., may be vacated.

Void, Voidable. Void acts are those having no legal or binding force, such as are null, of no effect, not sufficient to bind parties cr to convey or support a right. Voidable acts are those which may be annulled or made void, or may be adjudged invalid, void, or of no effect. They have force and effect in consequence of some inherent quality only, but may be legally annulled or avoided. A contract between an infant and adult is voidable, be cause it may be avoided or confirmed on the infant's coming of age.

Wife. The acts of the wife are consid ered the acts of her husband. For her crimes, however, she is liable as if she were a single woman. Where she commits a crime in the Raym. 909, 918; Story Bailm. 431, et seq.; 2 Greene Ev. 144. p-Litt. 405; 4 Co. 123; Cro. Eliz. 398. q-1 Hogg, 414; 2 Sharsw. Bl. Comm. 292. r-4 Kent Comm. 451. S-See Hob. 139; Cowp. 714; Dougl. 463; 2 Mod. 280; 3 Penn. St. 200; 1 S. & R. 43: 3 B. & Ald. 581; 3 East. 407; Com. Dig. Estates (G8), Templ. (A) Chitty Pr. 69, 147. t-Co. Litt. 43. -1 Russ & M. 116; 1 Chitty Pr. 123; 2 Martin (N. S.) 570.

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presence of her husband, unless it is of a very aggravated character, she is presumed to act by his coercion, and, unless the contrary is proved, she will, in the absence of a statute to the contrary, be held irresponsible.

Writing is the forming of letters and characters upon paper, parchment, cloth, wood, stone, or other material, for the purpose of recording the ideas which the words or characters express. Printing is construed to mean writing.

Many contracts must be in writing, all deeds for the conveyance of real estate must be in writing. Records, bonds, bills of exchange, and many other obligations and undertakings, must be made in writing.

Act of God. See AcCIDENT.
Act in Pais. See PRACTICE.
Action at Law. See PRACTICE.
Actual Damages. See DAMAGES.
Actuary. See CORPORATIONS; INSURANCE.
Ad Valorem. See DUTIES.
Addition. See NAME.

Address. See LEGISLATION, PLEADING.
Ademption. See LEGACY.

Adjourned Term. See PRACTICE.

Adjournment. See PRACTICE.

Adjudication. See JUDGMENT.
Adjustment. See INSURANCE.

Administering Poison. See CRIMINAL LAW.
Administration. See ESTATE; GOVERNMENT.
Administrator. See-PERSONAL RELATIONS
Admiral. See OFFICE AND OFFICERS.
Admiralty. See COURTS.

Admissions. See CORPORATIONS; EVIDENCE;

PRACTICE.

Admonition. See PRACTICE.

Adolescence. See AGE; INFANTS.

Adoption. See CHILDREN.

Adult. See AGE; INFANTS.

Adulteration. See CRIMINAL LAW.

Adulterator. See CRIMINAL LAW.

Adulterine. See ADULTERY; CHILDREN.
Adultery. See CRIMINAL LAW.

Advancement. See GIFT.

Advances. See AGENTS; LOAN.
Adventure. See MERCANTILE LAW.

Adverse Enjoyment. See REAL PROPERTY.
Adverse Possession. See REAL PROPERTY.
Advertisement. See NOTICE; PRACTICE.
Advice. See MERCANTILE LAW.
Advisement. See PRACTICE.

Advocate. See AGENCY; ATTORNEYS; PRACTICE.
Affection. See CONSIDERATION; PAYMENT.
Affiance. See MARRIAGE.

AFFIDAVITS. See EVIDENCE; PRACTICE;

WITNESS.

AN AFFIDAVIT is a statement or declaration reduced to writing and sworn or affirmed to before some officer who has authority to administer an oath. It differs from a deposition in this: that in the latter the opposite party has an opportunity to cross-examine the witness, whereas an affidavit is always taken ex parte.

A counter affidavit is an affidavit made in opposition to one already made. Its essential requisites are the same as an affidavit.

Amendments at common law, independent of any statutory provision on the subject, are, in all cases, in the discretion of the court, for the furtherance of justice. An amendment

v-Gresly Eq. Ev. 413. W-12 Ad. & E. 217; 2 Pick. 550; 4 T. R. 457: 4 Burr. 2568. x-Phil. (N. C.) L. 199 Y-5 T. R. 364; Id. 83. Z-8 T. R. 27; 7 East. 194; 11 fd. 315; 2 Wils. 224; 2 M. & S. 603. a-11 Ohio, 263. b-2 Chitty, 19; 18 Eng. C. L. R. 235. C-7 Hill, 77; 4 Denio, 71; Id. 258. d-3 N. Y. 41; 8 Id. 158. e-5 M. & G. 291; 44 Eng. C. L. R. 159; 1 Duer, 62; 11 N. Y. Leg. Obs. 313. f Chitty, 228; 18 Eng. C. L. R. 69; see 7 low. Pr. 446. g-1 Tidd, Pr. 496; 45 Barb. 594;

where there is something to amend by, may be But made in a criminal, as in a civil case. such amendment must be by leave of the court, and upon the terms prescribed.

An affidavit amended by order of the court must be re-sworn to, or it is no affidavit.

Amounts, Descriptions, etc. An affidavit should be positive as to parties; as to a claim,ꞌ its nature, how it arose, upon what it is grounded, and the amount. If the amount is uncertain, still some amount must be stated.a

The names of all the deponents should be mentioned.b 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; and this matter must be stated, not by way of recital, or as mere description, but as an allegation in the affidavit;d the affidavit should show that they were severally sworn.

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The jurat is that part of an affidavit where the officer certifies that the same was "sworn before him.

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The jurat should state the day on which it was sworn; it need not specify the place where it was sworn, as the venue sufficiently shows The jurat should be in special form where deponent is illiterate; or blind; otherwise, the common form is sufficient. Where a deponent is a marksman, the fact of the affidavit having been read over to him, and his understanding it, should be stated in the jurat.

The jurat must be signed by the officer with the addition of his official title. An affidavit should show on its face that it was made before some officer competent to take affidavits."

Seal. In the case of some officers the statutes conferring authority to take affidavits require also his seal to be affixed.

Whenever an officer has an official seal he should affix it.

Signature of affiant. The affidavit should be subscribed by the deponent or deponents." The absence of the party's signature does not prove that he was not sworn; for it is not necessary to constitute an affidavit, unless required by statute that the party making should sign it." But there must be an official authentication.P

Surplusage in an affidavit, not inconsistent with the substantial averments required by the statute, will not vitiate it.

Title of the action. The affidavit must intelligibly refer to the cause in which it is made; in other words, it should show by its title who is plaintiff and defendant, and the court in which the action is pending. The strict rule of common law is, that it must contain the exact title of the action. When there is no proceeding pending, the affidavit must not be

599.

1 Abb. Pr. (N. S.) 258; 30 How. Pr. 161; 12 Wend. 223; 3 Hill, 461. h-1 Tidd Pr. 495; 3 Moult. Ch. Pr. 551. 1-5 Paige, 242. j-3 Edw. 239. K-3 Dowl. Pr. Cas. 1-1 Denio, 429; 3 Caines, 128; see also 6 Cow. 728. m-6 How. Pr. 305. n-Newl. Ch. 165; 11 Paige, Ch. 0-4 Sm. & Marsh, 579. 8 Iowa, 310; 28 Ga. 27. p-2 Rob. (La.) 132; 3 Scam. 536; 8 Ga. 521; 7 Port 483; 3 Ala. 709. q-6 S. & M. 276; 11 Barb, 520; 33 Miss. 190; 34 Id. 269; 1 La. An. 725; 12 Ohio St. 335. 12 How. Pr. 401.

173.

Entitled; but a superfluous title may be disregarded as not affecting the substantial rights of the party."

Venue is the place where the affidavit is taken and must be stated-(thus, State of

county, ss.) to show that it was taken within the officer's jurisdiction; and an omission of the venue from an affidavit is fatal. The venue is an essential part of every affidavit, and prima facie evidence of the place where it was taken." If, by the venue, it appears that the affidavit was taken at a place beyond where the officer was authorized to act, it will not be received by the court."

The title of an action is generally as follows:
State of

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SS. In the

Court.

Affidavit for (state what).

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AFFIDAVIT FORMS.

The affiant or deponent is sufficiently described in an affidavit, thus:

That A. D. is (the agent or attorney of

) a party (or one of the parties) to this proceeding (or matter). The common form of jurat is either of the following forms;

Subscribed and sworn to before me this day of ―.

(Officer's signature and official title.) Sworn to and subscribed this -day of

(Officer's signature and official title.) Commencement of an Affidavit. An affidavit to be effectual in law must be made before some competent court or officer, having authority to administer an oath; and this oath must be administered within the court or officer's jurisdiction. Thus, if it is administered in Allen county, by a court or officer of Brown county, it would be insufficient, the court or officer having no jurisdiction for this purpose in the latter county. The affidavit for general purposes would commence thus:

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Or commence thus: On this day of -, before me, the subscriber, one of the justices of the peace in and for said county, personally came (or appeared) A. B., of, and being by me duly sworn (or being by me sworn according to law) says (or alleges, or deposes, or deposeth and saith) that, etc.

If an affidavit is to be used in a civil or criminal action or suit, it should state the title of the action, thus: State of In the -court.

county,

A. B., plaintiff,

vs.

SS.

C. D., defendant.

Affidavit (of—, for)

State of, county of -——, ss.

A. B., being duly sworn, says (or alleges) that, etc. 8-4 How. Pr. 95. t-1 Barb. Ch. 601; 18 Barb. 408, and cases there cited. u-6 How Pr. 394: 18 Barb. 407, 408, and cases there cited; 8 Paige, 428; 1 Barb. Ch. 218.

It will be observed that a "statement of venue" is twice made in this form. The first relates to the court in which the action is pending, the second to the place where the affidavit is taken.

Conclusion of an Affidavit.

In order that the affidavit shall be effectual it must bear upon its face the evidence of its being duly made. This is done by the officers' bearing witness to and af firming its having been so made, by his solemn declaration to that effect. This is called the jurat, to which his signature is absolutely necessary. An officer's official title should always accompany his signature. General Form of Conclusions or Jurats. Sworn (or affirmed) before me, this

day of (Officer's signature and official title.) Subscribed and sworn to before me this day of (Officer's signature and title.) In testimony whereof, I have hereunto set my hand (and affixed my official seal), this -day of [Seal.] (Officer's signature and title.)

If an affiant is blind or illiterate it should be thus: Subscribed and sworn to before me, this day of, A. D. -, the same having been in my presence (or by me) read to this affiant, he being blind (or illiterate), and understanding the same. [Seal.} (Signature and official title.)

If an affiant is a foreigner it should be thus: Subscribed and sworn to before me, this day of, A. D. ——, -, I having first sworn I. R., an interpreter, to interpret truly the same to this deponent, who is a foreigner, not understanding the English language, and he having so interpreted the same to said deponent.

[Seal.]

(Signature and official title.) Affidavit-General Forms.

If made in a legal proceeding, set out the caption or title of the pleadings, which consist of: 1. The name of the State and county in which the action is brought. 2. The name of the court. 3. The names of the parties, plaintiff and defendant.

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C. D., defendant. State of A. B. (and C. D.), being duly sworn (or affirmed), says (or severally say, each for himself):

That he is plaintiff (or, that he is the agent [or attorney of the plaintiff) in the above entitled action. That, etc. (stating the facts). (Signed) A. B. Subscribed and sworn to before me, this day of, A. D. [Seal.]

State of

(Signature and official title.)

Another.

county, to wit.

A. B., of being duly sworn, says, That he has been informed, and believes it to be true that, etc. (setting out the matters of information, etc.), and further says not. A. B. day of ——, A. D., before C. D. (Official title.) Affidavit-Accounts.

Sworn to this

me,

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Before me, the undersigned, one of the justices of the peace of said county, personally appeared A. T. (administrator, assignee, executor, guardian, or trustee, as the case may be), aforesaid, who does depose and say, that the above account is just and true to the best of his knowledge and belief. (Signed) A. T. day of J. P., Justice of the Peace. V-2 How. Pr.86; Id. 127; Id. 181; 18 Barb. 408, and cases there cited. w-1 Chitty Pl. 261, 527, 528; 1 Arch Pl. 72, 168; Steph. Pl. 440; i Marsh, 341

Sworn and subscribed, this A. D..

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A. T., being duly sworn, says:

That he is administrator of the estate of D. D., of deceased; or

(That he is the assignee of the estate of I. T., of insolvent (or B. T., of —, bankrupt); or (That he is the executor (or one of the executors) of the last will and testament of D. D., of deceased); or

(That he is guardian of the (person and) estate of I. D., minor heir of D. D., of deceased); or (That he is trustee of the trust fund, of , etc.)

That the above (annexed, foregoing, or within) account (and the schedules therein referred to) contain à full and true, complete and perfect account of his administrator- (assignee- executorguardian- or trustee-) ship, to the best of his knowledge and belief. (Signed.) A. T. Subscribed and sworn to before me this

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A. T. (administrator of the estate [or executor of the last will and testament] of D. D., deceased, or assignee of I. T., insolvent, or B. T., bankrupt, or guardian of the [estate and] person of I. D., minor heir of D. D., deceased, or trustee of the fund, etc.), swears that the foregoing account presented is just and true; Or, Swears that the foregoing account is just and true (or correct) as he verily believes;

Or, Swears that the foregoing account is a full and correct exhibit of his doings as such (administor, etc.);

Or, Swears that the foregoing is a full and accurate account of his (administration, etc.) of said A. T.

estate.

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Another. county, ss.

State of On this , A. D., day of before me, the subscriber, one of the justices of the peace in and for said county, personally came A. B., of -, and being (duly) sworn (according to law) deposes and says:

That the above account, as stated, is just and true.

That the above sum of dollars is now justly due and owing to this deponent by the abovenamed C. D.

That he, the said A. B., has never received the same, or any part thereof, either directly or indirectly, nor any person for him, by his direction or order, knowledge or consent. A. B. Sworn and subscribed before me this - -day of, A. D. J. P., Justice of the Peace. Affidavit-Acknowledgmènt. county, ss.

State of

day of

Be it remembered, that on this A. D., before me, O. R., a—, in and for said county, personally came W. T., one of the subscribing witnesses to the above (annexed, foregoing, or within) instrument of writing, and being (duly) sworn (or affirmed) says:

That he, the said W. T. and N. S., the sub. scribing witnesses to said instrument of writing, were (on the day of - -) both present and did see the above-named A. B. sign (and seal), and as his act and deed acknowledge and deliver said instrument.

That thereupon said W. T. and N. S. did subscribe their names as witnesses to the same.

In testimony whereof, I have hereunto set my hand and affixed my official (or notarial) seal the day and year first above written. [Seal.] O. R. (official title.)

Affidavit-Arbitration.

See AGENCY, ARBITRATION.

Affidavit-Arrest.

See ARREST, PLEADING, PRACTICE.
Affidavit-Assets.

State of

county, ss.

A. B., being duly sworn, says (or alleges): That he is the owner of the (in fee) of the following described (unencumbered) real estate, to wit (describing it); all of the aggregate value oʻ dollars.

That he is the owner (absolutely) of the follow ing described (unencumbered) personal property, to wit (describing it); all of the aggregate value dollars.

of

That he is worth - dollars over and above all his debts, exemptions and liabilities.

(Signed) A. B. Subscribed and sworn to before me this day of, A. D. ——————. O. R. (official title). [Seal.]

Affidavit-Attachment.

See ATTACHMent, Pleading, Practice.
Affidavit-Defence.

A. B.

VS.

C. D. State of

See DEFENCES, post.

In the -court.

county, ss.

C. D., being duly sworn, says:

That he is the (agent or attorney of the) defendant in the above entitled action.

That he (said defendant) has a just and legal defence to the whole (or part) of the plaintiff's demand in said action.

That the (character or) nature of said defence is as follows (describing defence). (Signed) C. D. Subscribed and sworn to, etc.

Affidavit-Foreign.

To be used in a foreign country or state. State of SS. Affidavit concerning -. county, (Be it known, or) Be it remembered that on this day of A. D., before me, O. R., a in and for residing at the of duly commissioned and sworn, and by law authorized to administer oaths and affirmations, personally appeared (or came A. B., of, and being by me duly sworn (or affirmed) did depose and say: That, etc. (setting forth the matters and things sworn or affirmed). (Signature of deponent.) In testimony whereof, I have hereunto set my hand and affixed my seal of office the day and year first above written.

[Seal.] (Signature of officer and his official title.)

Affidavit-Notices, Etc.

Of service of notice.
See PUBLICATION, below.
(Title of the action, if any.)
State of

day of

county, ss. A. B., being duly sworn, says: That he served a (———, of which the within is a true copy, or copy of the within on the withinnamed C. D., on the —, A. D. ——, at - o'clock, - m., by leaving the same at this [last), usual place of residence, or at his dwelling-house, or at his office, or counting-room, store, shop, etc.) in (in the presence of ——, a ———), etc. A. B. Subscribed and sworn to this day of (Signature and official title.) Affidavit-Partners. Limited or special partnership.

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