Book IV. court, the affidavit may be intitled in the names of those only who are in court (o). On an application against a claimant under the Interpleader Act for costs, the affidavits should be intitled in the original action (p). Where a cause is removed into the Exchequer Chamber by writ of error, all affidavits in the Exchequer Chamber must be intitled in the cause in error, and not in the original action (9). And so on a writ of false judgment (r). It seems that the affidavits in support of a rule for a procedendo should not be intitled in the cause in the inferior court, but in the superior court only (8). On moving for a rule nisi for a certiorari, the affidavits must not be intitled in any cause (t). And the same in moving for a criminal information (u). In shewing cause against a criminal information, it is optional to intitle them or not (z). An affidavit in support of a rule to set aside a bail-bond, on the ground of a mistake in the defendant's surname, must be intitled with the right name of the party, and not with the name by which he was arrested (y). And an affidavit to set aside a ca. sa. for misnomer should be intitled in the name by which he was sued (2). An affidavit to support a rule nisi for staying proceeding on a bail-bond may be intitled in the action against the bail(a); or in the original action (b); if, however, proceedings against bail be founded upon a judgment irregularly obtained by the plaintiff, only one application is necessary to set aside the irregular judgment and the proceedings against the bail; and the affidavits, in such a case, must be intitled in the original action (c). On an application by bail to set aside proceedings in the original action, and in the action against themselves, the proceedings may be intitled in both actions (d). A motion on behalf of the same plaintiff, in two different actions, upon the same ground of application, may be made upon one affidavit intitled in both actions (e). Upon an application for a rule that an attorney pay over a sum of money, or give up a document received by him in a particular cause, the affidavits must be intitled in the cause in which the money or document was received (ƒ). And they may be so intitled although judgment has been signed and execution issued (g). But where there is as yet no cause in court, the affidavits should not be intitled; otherwise the court probably would not allow them to be made use of. Thus, an affidavit to hold to bail before 1 & 2 V. c. 110, must not have been intitled; or, if intitled, it could not be read (h), because, as yet, there was no cause in court; and this is, it (0) Dand v. Barnes, 6 Taunt. 5; 1 Marsh. (p) Elliott v. Sparrow, 1 H. & W. 370. (r) Watson v. Walker, 8 Bing. 315; 1 (8) Jameson v. Schonswar, 1 Dowl. 175. (a) Roberts v. Gidding, 1 B. & P. 337: Kelly v. Wrother, 2 Chit. Rep. 109. (b) Stride v. Hill, 4 Dowl. 709: Lines v. Chetwode, Exch. MS., 16th Jan. 1832; 2 Tyr. 177: sed vide Ham v. Philcor, 1 Bing. 142: 7 Moore, 521, S. C. contra: and see Blackford v. Hawkins, 7 Moore, 600. (c) Barlow v. Kaye, 4 T. R. 688. (d) Pocock v. Cockerton, 7 Dowl 21. (e) Pitt v. Erans, 2 Dowl, 226: but see (u) R. v. Harrison, 6 T. R. 60: R. v. Harper v. Mount, Bail Court, M. 1838, Robinson, 6 T. R. 642. per Littledale, J.. 2 Jurist, 990. (ƒ) MS., E. 1814: Simes v. Gibbe, 6 Dowl. 310. (g) Simes v. Gibbs, 6 Dowl 310. seems, still the case if the affidavit be sworn before the writ of CHAP. XXXVI. summons is sued out; which, according to a late resolution of the judges, it may be (i). But if sworn after the writ of summons has been issued, then it would seem that it ought to be intitled in the cause. In moving for leave to enter up judgment on an old warrant of attorney, the affidavit may be intitled in a cause (j), but this is not absolutely requisite (). So, an affidavit on an application for the delivering up of a warrant of attorney may be intitled in a cause (7). Where a submission to arbitration is made a rule of court, and no action is pending, the affidavits in support of an application to set aside the award, or for an attachment for not performing it, need not be intitled (m), although the affidavits in shewing cause must (n). But where a cause is referred under an order of Nisi Prius, the affidavits must be intitled in the action (o). The proceedings upon an attachment in a civil suit being upon the civil side of the court until the attachment is actually awarded, the affidavits in applying for the rule nisi(p), and in shewing cause against it (q), must be intitled in the action; but after the rule is made absolute, all future affidavits (as upon an application to set aside the attachment, or the like) must be intitled "The Queen v. —” (the party attached) (r); and in the case of an attachment against the sheriff, you generally add the name of the cause thus: "The Queen against the Sheriff of Middlesex, in a cause of J. N. against J. S.," though this is not, it seems, absolutely requisite(s). Deponent's Abode.] The affidavit must state the true place Deponent's of abode of the person making it (t), otherwise the court will Abode. not allow it to be used; or, in the case of an affidavit to hold to bail, will discharge the defendant on a common appearance (u). The deponent's addition, however, need not, it seems, be stated if he be a party in the cause, and describe himself as such, by the words, "the above-named plaintiff," or "above-named defendant," or the like (x). Where a deponent described himself as of " the city of London, merchant," it was holden to be sufficient (y); so, where he described himself as "of Bath, in the county of Somerset, Esquire"(); or as "of Kennington, in the county of Surrey" (a); or as of "Lawrence Pountney, in the city of London" (b), without stating whether parish, place, or lane. So, (i) Ante, Vol. I. p. 485. (j) Sowerby v. Woodroff, 1 B. & Ald. 567: Poole v. Robberds, Id. 568, n. (k) Davis v. Stanbury, 3 Dowl. 440: Ex p. Gregory, 8 B. & C. 409. 1) Thompson v. Vaur, 5 Dowl. 691. (m) Bainbrigge v. Houlton, 5 East, 21. (n) Bevan v. Bevan, 3 T. R. 601: In re Houghton, 2 Moo. & P. 452. (0) Doe Clarke v. Stilwell, 6 Dowl. 305. (P) Wood v. Webb, 3 T. R. 253: Ethrington v. Kemp, I Chit. 727, n. (g) Whitehead v. Firth, 12 East, 165. (r) Rez v. Sheriff of Middlesex, 7 T. R. 439, 527: Whitehead v. Firth, 12 East, 165. (8) Rex v. Sheriff of Middlesex, 5 B. & C. 389; 8 D. & R. 149, S. C. (t) R. M., 15 C. 2: see 4 Taunt. 154. (u) Jarret v. Dillon, 1 East, 18. (x) Angel v. Ihler, 5 M. & W. 163: Brooks v. Farlar, 5 Dowl. 361, C. P.: Jackson v. Chard, 2 Dowl. 469, Q. B.: Poole v. Pembrey, 1 Dowl. 693; 3 Tyr. 387. Exch. S. C.: Jerris v. Jones, 4 Dowl 610; 1 H. & W. 654; and see Shary v. Johnston, 2 Bing. N. C. 246; 2 Scott, 407; 4 Dowl. 324, S. C. Lawson v. Case, 1 C. & M. 481, to the contrary, is a solitary case, and clearly wrong. (y) Vassier v. Alderson, 3 M. & Sel. 165. (3) Coppin v. Potter, 4 Moo. & Scott, 272; 2 Dowl. 785. (a) Wilton v. Chambers, 1 H. & W. 116: and see Hunt's bail, 4 Dowl. 272; 1 H. & W. 520, S. C. (b) Miller v. Miller, 2 Scott, 117. OK IV. RT I. Deponent's where he described himself as "late of Tyrone, in the county of Tyrone, in Ireland, but now in Dublin Castle," it was deemed sufficient (c). And where a foreigner, who had come to this country merely for temporary purposes, described himself as of his place of residence abroad, it was deemed sufficient (d). So, where an attorney's clerk stated the place of business of his employer as his residence (e); so, where a clerk described himself of the office where he did business during the day, although he slept elsewhere at night (ƒ); and where a person lately discharged from prison, but who slept there at night, described himself as late of that prison (g); the court held these to be sufficient descriptions of the deponent's place of abode, within the meaning of the rule of court above mentioned. And in an affidavit by an attorney's clerk it is enough to state his master's residence (h). But a deponent describing himself as "clerk to the defendant's attorney," without stating any residence, is insufficient (i). If the defendant be a prisoner in the custody of the sheriff (k), or in the Fleet, &c., merely describing as such will suffice; and this although when he made the affidavit he was out on a day rule (1). A deponent cannot describe himself as late of a place where he has ceased to reside, when he actually resides at another place at the time of making the affidavit (m). And where the deponent described himself as of "Dorset-place, Clapham-road, Middlesex," and his true place of residence was Dorset-place, Clapham-road, Surrey, it was holden bad (#). The court, however, have in some cases refused totry the real place of the deponent's abode upon affidavit (o). Deponent's Addition.] The rule of H. T., 2 W. 4, r. 5, requires that "the addition of every person making an affidavit shall be inserted therein." But the rule does not extend to an affidavit made by a party in the cause, if he describe himself as such, as by the words "the above-named plaintiff," or "the above-named defendant," or the like (p). Where, in an affidavit to found a motion, the addition of the deponent is omitted, the court will not inquire whether the facts sworn to by a deponent are sufficient to support the application (q), Merchant (r), and manufacturer (s), and "late clerk to," &c.(t), and managing clerk to," &c. (u), and " agent and collector to A. B., (the plaintiff), an hotel-keeper" (e), have been considered sufficient (x). And an affidavit commencing "R. J., late of the city of W., victualler, but now of" &c., (e) Steuart v. Gaverau, 1 H. & W. 699. (f) Haslop v. Thorne, 1 M. & Sel. 103: (g) Sedley v. White, 11 East, 528. (i) Daniels v. May, 5 Dowl. 83: but (k) Jervis v. Jones, 1 H. & W. 654; 4 Dowl. 610, S. C. (1) Sharp v. Johnston, 2 Bing. N. C. 246; 4 Dowl. 324, S. C. (m) Sedley v. White, 11 East, 529. (n) Collins v. Goodger, 4 D. & R. 44; 2 B. & C. 563, S. C. (0) See Tidd, 9th ed. 179; 2 Smith, 207, S. C.: Anon., 2 Leg. Obs. 382. (p) Ante, 1211, n. (x). (9) Rex v. Justices of Carnarvon, 5 Nev. & M. 364. (r) Vassier v. Alderson, 3 M. & Sel. 165. (s) Smith v. Younger, 3 B. & P. 550. (t) Simpson v. Drummond, 2 Dowl. 473. (u) Per Littiedale, J., Graves v. Browning, 6 Ad. & Ell. 80.7. (v) Short v. Campbell, 3 Dowl, 487. (x) See Vol. I. 485: see Anon., 6 Taunt. 73: and see the cases as to the description without any further addition, has been held sufficient (y). CHAP.XXXVI. But "assessor" is not a sufficient description (z). Nor is "acting as managing clerk to" &c. (a). An affidavit of merits to set aside an interlocutory judgment, or the like, must be made either by the party himself, or by his attorney in the cause, or by the managing clerk of the attorney, who has the management of that particular cause; and he must describe himself accordingly in the affidavit (b). In a joint affidavit, an objection to the description of one of the deponents does not render the statements of the others inadmissible (c). ties. It is not in general necessary to give any addition to any Addition, &c, other party but the deponent (d). But the christian and of other Parsurnames of parties ought in general to be inserted, if practicable (e). Deponent's Signature.] Affidavits made in this country Deponent's must be signed by the deponent. It is no objection to an Signature. affidavit that the signature is in a foreign character (f). An affidavit sworn before a judge in Germany and signed by the judge, but not by the deponent, has been held sufficient, it being sworn that such is the practice in Germany (g). Jurat.] The jurat is written at the foot of the affidavit, Jurat. to the left of the page, in this form: "Sworn at. this day of -, 1838, before me, But if the affidavit be made by two or more persons, their names must be severally written in the jurat (h); and the form in that case will be thus: "The above-named deponents, A. B. and C. D., were severally sworn at this day of 1838, before me, The time of swearing the affidavit must be stated in the jurat (i); and if sworn before a commissioner, the jurat should state the place where the affidavit was sworn (k), though the Court of Common Pleas have held that the omission is not material (1). If sworn abroad, the jurat must state the place at which it was sworn (m). Where no place was mentioned in the jurat, but the affidavit purported to be sworn before the Chief Justice of the King's Bench in Ireland, and to be signed by him, and the signature was verified here by affidavit, it was deemed sufficient to hold a defendant to bail under a judge's order (n). If the affidavit be sworn before a commissioner of the court, by a person who, from his signature, of bail in the notice of bail, ante, Vol. I. 580. (y) Angel v. Ihler, 5 M. & W. 163. (2) Nathan v. Cohen, 3 Dowl. 370; 1 H. & W. 107, S. C. (a) Graves v. Browning, 6 Ad. & El. 805. (b) Neesom v. Whytock, 3 Taunt. 403: R. v. Sheriff of Middlesex, 1 Chit. 372. (e) Nathan v. Cohen, 3 Dowl. 370; 1 H. & W. 107, S. C.: Er p. Edmonds, 5 Dowl. 702: but see R. v. Sheriffs of Carnarvon, 5 Nev. & M. 364. (d) See Waters v. Joyce, 1 D. & R. 150. (e) See Reynolds v. Hankin, 4 B. & Ald. 536: but see Howell v. Coleman, 2 B. & P. 466. (f) Nathan v. Cohen, 3 Dowl. 370. (g) In re Eady, 6 Dowl. 615. (h) R. M., 37 G. 3, r. 1: 7 T. R. 82: R. T., 1 G. 4, Exch.: 6 Bing. 236. (i) Doe v. Roe, 1 Chit. Rep. 228: Wood v. Stephens, 3 Moore, 236. (k) MS., E. 1814, Q. B.: Rex v. Cockshaw, 2 Nev. & M. 378: R. v. West Riding of Yorkshire, 3 M. & Selw. 493 : Boyd v. Straker, 7 Price, 662. (1) Symmers v. Wason, 1 B. & P. 105. (m) Walker v. Christian, cor, Bosanquet, J., at chambers, 3rd April, 1835, after consultation with other judges: also in another case on same day. In the first case the affidavit was sworn in the Indies, in the latter at Boulogne; but in neither case did the affidavit state it. (n) French v. Bellew, 1 M. & Sel. 302. BOOK IV. Erasure or Interlineation in Jurat. appears to be illiterate, such commissioner shall certify in the jurat that the affidavit was read in his presence to the party making the same, and that such party seemed perfectly to understand the same, and that the party wrote his signature in the presence of the commissioner (0); but if sworn before a judge, or in court, this is unnecessary. When an affidavit is made by a foreigner in the English language, an interpreter must be sworn by the officer taking the affidavit to interpret it truly, and the jurat should state that the interpreter was so sworn, and did interpret the affidavit. It is not, however, necessary that any affidavit should be made by the intrepreter, or the officer taking the affidavit; it is sufficient that the latter certifies by the jurat that such steps were taken (p). If an affidavit purports to be signed by a deponent, it will be no objection that it is signed in a foreign character; and there is no statement in the jurat to shew that the defendant is a foreigner, and that the writing in question is his signature (q). In the case also of an affidavit made by a marksman, it is sufficient for the officer making the jurat to certify thereon, that it was read over to the deponent, and seemed to be understood by him, without the officers making an affidavit. If the affidavit be in a foreign language, there must be another affidavit by an interpreter as to its translation and meaning (r). Also, if sworn before a commissioner, it should appear that the person before whom it is sworn is a commissioner of the court(s); although, perhaps, this would not be considered material, if the affidavit be intitled in the court in which it is used, and the commissioner be in fact a commissioner of the court (t). But in a case in the Common Pleas, it was held that an affidavit of debt sworn before a commissioner in the country, without stating him to be a commissioner in the jurat, is insufficient, although intitled in the court (u). The jurat of an affidavit sworn before a commissioner, stating it to have been received "by virtue of a commission forth," &c., omitting the word "issued" is sufficient (v). The rule of M. T., 37 Geo. 3, (7 T. R., 82, Q. B.), provides "that no affidavit be read or made use of in any matter depending in this court, in the jurat of which there shall be any interlineation or erasure. A line drawn through two words in the jurat, leaving them, however, perfectly legible, is an erasure within this rule, and vitiates the affidavit, though the omission or retention of the words would not vary the sense (a). But the alteration of a figure in the date of an affidavit in the jurat, by writing one figure over (0) R. E., 31 G. 3, Q. B.: 4 T. R. 284: R. T., 1 G. 4, Exch.: see Haynes v. Powell, 3 Dowl. 599: 1 Chit. Rep. 660. It must be read over and explained by the commissioner, and not by a third party. (R. v. Sheriff of Middlesex in Disney v. Anthony, 4 Dowl. 765). See the form, Chit. Forms, 207. (p) Bosc v. Solliers, 6. D. & R. 514; 4 (q) Nathan v. Cohen, 3 Dowl. 370. lated, and the translation verified; and the oath may be administered in the fo reign language if it be translated by an interpreter to the deponent. (In re Eady, 6 Dowl. 615). (8) Rex v. Hare, 13 East, 189. (t) See Kennet Canal Company v. Jones, 7 T. R. 451; R. T., 3 W. & M.: Sharpe v. Johnson, 4 Dowl. 324. (u) Howard v. Brown, 1 Moo, & P. 22; 4 Bing. 393, S. C. (v) Daly v. Mahon, 6 Dowl. 192. (a) Williams v. Clough, 1 Adol, & El. 376: see Houlden v. Fassen, 6 Bing. 236; 4 Moo, & P. 127, S. C. |