No. XXXVIII. Affidavit of a Debt. No. XXXVIII. Obs. 1. An affidavit of a debt, so far as it concerns commercial or Requisites of general purposes, ought, 1. To be made by a credible person, not the affidavit. one convicted of any felony, Bland v. Drake, 1 Chitt. 165; but see 7 & 8 G. 4, c. 28, as to the effect of a pardon, Dig. and Ind. p. i. PARDON. 2. By R. H. Gen. 2 W. 4, reg. 1, s. 5, the addition of every person making an affidavit of debt must be inserted therein, and deponent describing himself as A. B., clerk to C. D., is not sufficient, Daniels v. May, 5 D. P. C. 83. This rule is a confirmation of an old rule, under which it was held that the affidavit must contain the state and degree of the plaintiff in order to hold the defendant to bail, Jarrett v. Dillon, 1 East, 18; but if it state the place where he carries on his business it is sufficient, and need not give his place of abode, Haslope v. Thorne, 1 M. & S. 103. 3. It is now settled (though formerly doubted) that it need not be made by the party himself, it being sufficient if made by any person who can swear to the existence of the debt, Bland v. Drake, ub. sup., overruling Claphamson v. Bowman, 2 Sira. 1226; Vanmorral v. Julian, 1 Wils. 231; and the affidavit need not state that the deponent was connected with the plaintiff as agent or otherwise, Anderson v. Morgan, 4 Taunt. 231. 4. The affidavit must be positive as to the fact of the debt; stating "as appears by the plaintiff's ledger," and the like, is not sufficient, Fowler v. Morton, 2 B. & P. 48; but an executor or administrator may swear to the best of his belief, Sheldon v. Baker, 1 T. R. 84; Lowe v. Farley, 1 Chitt. 92. 5. The cause of action must be explicit; an affidavit of debt on an award must state the fact of submission to the award, and that the money was due on a day that is now past, Anon. 1 D. P. C. 5; so an affidavit of debt, founded on an agreement, must state the consideration for the agreement, Walker v. Gregory, 1 D. P. C. 24; and if for money paid, that the same was paid at the request, as well as on account of the defendant, Marshall v. Davison, 2 Tyrw. 315. 2. Of the requisites of affidavits to be used in courts, see Dig. p. ii. Requisites of tit. AFFIDAVITS and the authorities there cited. affidavits when used in courts. 3. Affidavits of a debt come properly within the exemption from Stamp. the stamp duty provided for by 55 G. 3, c. 184; see ante, Pref. s. 6, p. 98. A. B. of &c. (or "clerk &c." or "apprentice &c. to A. B.") maketh oath and saith that the bill or account hereunto annexed, of goods or articles expressed to have been delivered to No. XXXVIII. C. D., is a true copy or transcript of the ledger book of him the Of a Debt. said A. B. or of his (" clerk," " apprentice &c.") entered by him the said deponent, and that the goods were ordered by and delivered to the said C. D. by this deponent at or about the time in the said bill or account mentioned, and which he verily believes the said C. D. received. And further, that he this deponent did, on or about the day of deliver a true copy of the account from the said A. B. unto (or "at the countinghouse" or "dwelling-house of") the said C. D., and that he did then and there see the said C. D., who thereupon promised to pay the same forthwith (or otherwise, as the case was), and that he this deponent hath not, nor any other person to his knowledge or belief, received or been tendered the amount thereof (or "has received the sum of £ and no more towards the amount thereof"). Sworn &c. (Deponent.) No. XXXIX. No. XXXIX. Affidavit of the Execution of the Memorial of a Deed by one of the Witnesses. Obs. 1. This affidavit is required by the 2 & 3 A. c. 4, for the W. Rid. of Yorkshire; 5 & 6 A. c. 35, for the E. Rid.; 7 A. c. 20, for Middlesex; and 8 G. 2, c. 6, for the N. Rid.; see Dig. and Ind. p. i. tit. INROLMENT. By the 5 & 6 W. 4, c. 82, the execution of a deed may be proved by a declaration instead of an affidavit, see Pref. s. 2, ante, p. 98. 2. As to whether this affidavit requires a stamp, see Pref. s. 6, ante, p. 98. A. B. [a witness to the execution of the memorial, and of the deed memorialized] of in the county maketh oath and saith that he was present and did see the indre, bearing date &c. referred to in the memorial hereunto annexed, duly exted by C. D. (grantor) [or E. F. (grantee)] of in the county one of the parties to the same indre. And this deponent further saith that he was present and did see the memorial hereunto annexed duly signed and sealed by the said C. D. (or E. F.) And that the names of this deponent and of (other witnesses to the memorial) in the county of set and subscribed to the said memorial, as the witnesses to the execution thereof by the said C. D. (or E. F.) are of the respective proper handwriting of this deponent and of the said (other witnesses). No. XXXIX. No. XL. Affidavit of Service of a Petition and Order. Obs. As to affidavits, see Pref. s. 1; and as to Quakers &c., see ante, No. XXIX. n. (a). In Chancery. the G. F. of &c. day of In the matter of T. B. a lunatic. maketh oath and saith That he this dept did on inst personally deliver to M. B. cousin and next heir of the said T. B. and H. S. aunt of the sd T. B. respectively a true copy of the petition and order thereon hereinafter mentioned which said petition appears to this dept to have been preferred to the Ld High Chancellor of Gt Britain by S. S. of &c. I. H. of &c. and W. T. of &c. devisees in trust for the sd T. B. the lunatic named in the will of the sd lunatic's father N. B. late of &c. and also persons appointed in and by the sd will to have the care and custody of the sd T. B. And it was thereby prayed that it might be referred to one of the Masters of the Ct of Chancery to approve of one or more psn or psns to have the care and custody of the psn and este of the sd lunatic they giving such security as is usual in like cases. And the sd order appears to this deponent to have been made by the sd Ld High Chancellor and bears date the &c. And by such order the sd Ld H. C. directs all pties concerned to attend him in the matter of the sd petition on the next day of petitions and notice thereof to be given forthwith. Sworn &c. (a) This is an affidavit of a memorial in Middlesex. No. XL. Petition, (Service). No. XLI. Declaration, (Spoiled Stamps). No. XLI. Declaration to be made for the Allowance of Spoiled Stamps. Obs. As it is presumed that this is one of those official oaths or affidavits for which a declaration may be substituted, the following has been given in that form. See Pref. s. 2. I, T. M. of &c. gent. in ptnshp with S. T. R. of the same place Declared by the above-named declarant T. M. 18 before No. XLII. Declaration, (Debt). No. XLII. Declaration of a Debt due to a Widow, Administratrix of her Husband. Obs. As to where voluntary declarations may or may not be made, see Pref. s. 4; and as to stamp, see Pref. s. 6. I, E. G. of &c. widow and administratrix of all and singular the goods and chattels rights and credits which were of H. G. late of &c. mercht my late husband deceased at the time of his death do solemnly and sincerely declare That T. S. late of &c. mercht is justly and truly indebted unto me this declarant as administratrix as afd in the sum of £ of lful money of Gt Britain for a total loss of £ per centum on the said T. S.'s subscription of 1007. made and entered into before the date and suing forth of the sd commission on a certain policy of insu rance effected by the orders and for the acct of the said H. G. as I to in which the sd ship and her cargo in the prosecution of the sd voyage was lost on the coast of this declarant have been informed and believe for which said sum of £ or any part thereof I this declarant have not nor to my knowledge or belief have or hath any or. psn or psns for my use received nor did the said H. G. in his lifetime or any or. psn or psns for his use to the knowledge and belief of me this declarant receive any satisfaction or security whatsoever save and except the said policies of insurance. Declared &c. (see No. XLI.) No. XLII. Declaration, (Debt). No. XLIII. Declaration of the Execution of Deeds. Obs. As to voluntary declarations in proof of the execution of deeds, see Pref. s. 4; and as to the stamp, see Pref. s. 6. I, A. B. of &c. do solemnly and sincerely declare that I this declarant did see the parchment writings or indentures hereunto annexed bearing date &c. and also one other writing bearing date &c. and made or expssed to be made betn &c. sealed and delivered by C. D. &c. in the sd writings named and that I the sd declarant subscribed my name to each of the sd writings as a witness to the exon and delivery thof resply. Declared &c. No. XLIII. Declaration, (Execution of Deeds). No. XLIV. Declaration of an attesting Witness to a Will. Obs. As to declarations to be made by attesting witnesses, see Pref. 8.5; and as to the stamp, see Pref. s. 6. I, A. B. of &c. do solemnly and sincerely declare That I was present and did see C. D. late of &c. decd in due form of law seal publish and declare his last will and testament in writing No. XLIV. Declaration, (Attesting Witness). |