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another, is not an erasure or interlineation within the rule (y). CHAP.XXXVI. And if the words "before me" in the jurat are struck out, and the words "by the court" introduced, it is not, it seems, within the rule (ż). An erasure over the jurat does not vitiate it (a).

of Jurat.

In general, time will not be given to cure a defect in the Amendment jurat (b). Where, however, the names of the deponents were omitted in the jurat, through the inadvertence of the judge's clerk, an amendment was allowed (c).

Commission

Before whom to be Sworn.] Affidavits intended to be used Before whom in the course of any proceedings in the superior courts must to be sworn. be sworn either in the court in which the proceeding is pend- Before Judge, ing, or before one of the judges sitting at Nisi Prius (d), er, &c. or at chambers (e), or before a commissioner of the court authorized to take affidavits by stat. 29, C. 2, c. 5(f); or before a commissioner empowered to take affidavits in Scotland or Ireland, by the stat. 3 & 4 W. 4, c. 42, s. 42 (post, 1216); or, in case of an affidavit to hold to hail, (prior to 1 & 2 V. c. 110), before the officer who issued the process, or his deputy (g). It has been held, that, since the 11 G. 4 & 1 W. 4, c. 70, s. 4, it is no objection to an affidavit to ground an attachment against a witness for contempt, that it is sworn before a judge of a different court from that to which the contempt was shewn(h).

A commission to take affidavits does not authorize the commissioner to administer an oath for the viva voce examination of a witness before an arbitrator (¿).

Cause or his

By a general rule of all the courts of H. T., 2 W. 4, r. 1, Before Attors. 3,"no affidavit of the service of process shall be deemed ney in the sufficient, if made before the plaintiff's own attorney, or his Clerk. clerk." Also affidavits sworn before the attorney or solicitor in a cause cannot be read (k), and this rule extends to affidavits taken before attornies, as commissioners, in causes wherein they are concerned for the parties in whose behalf such affidavits are made, except where they are made for the purpose of holding the defendant to bail (1). And an affidavit made before a commissioner, who acts as the attorney of the defendant before an appearance is entered, cannot be used, for he is within the limit of the rule as the attorney on the record (m); but it must be clearly shewn that he acted as such attorney at the time of taking the affidavit, and it is not sufficient to shew that he is so at the time of making the objection (n). The statement of a party that a particular person is his attorney, is sufficient evidence to

(y) Jacob v. Hungate, 3 Dowl. 456, Exch.

(2) Austin v. Grange, 4 Dowl. 576. (a) Atkinson v. Thomson, 2 Chit. Rep. 19: and see Houiden v. Fassen, 6 Bing. 236; 4 Moo. & P. 127, S. C.

(b) See Anon., 2 Chit. Rep. 20. but see Goodrick v. Furley, 4 Dowl. 392. (c) Ex p. Smith, 2 Dowl. 607. (d) Rer v. Jolliffe, 4 T. R. 285. (e) It has been already noticed, (ante, 1208), that an affidavit sworn before a judge of the superior courts is receivable in the court to which he belongs, though not intitled; and that it is receivable in

any other of the courts, provided it be
intitled in that other court.

The

(f) See Rer v. Jones, 2 Salk. 461.
statute is extended to the Isle of Man by
6 Geo. 3, c. 50, s. 2.

(g) 12 G. 1, c. 29, Vol I. 496.
(h) Phillips v. Drake, 2 Dowl. 45.

(i) Rer v. Hanks, 3 Car. & P. 419, per
Gaselee, J.

(k) R. E., 15 Geo. 2, r. 11, Q. B.: R. E. 13 Geo. 2, r. 1, C. P.

(1) Goodtitle d. Pye v. Badtitle, 8 T. R.

638.

(m) Kidd v. Davis, 5 Dowl. 568.
(n) Beaumont v. Dean, 4 Dowl. 354.

BOOK IV.
ᏢᎪᎡᎢ 1.

Commission for taking Affidavits in

Scotland and

Ireland.

Commissioner

Justice's List insufficient.

invalidate the affidavit on this ground, though the fact is not positively sworn to (o). The rule which prevents the swearing of affidavits before the attorney or solicitor in the cause, did not formerly extend to the attorney's clerk (p). So, in the Common Pleas, if the agent in town were the attorney on record, it was no objection to an affidavit of the party, that it was sworn before his own attorney in the country (9). But now, by a general rule of all the courts of H. T., 2 W. 4, reg. 1, 8. 6, "where an agent in town, or an attorney in the country, is the attorney on the record, an affidavit sworn before the attorney in the country shall not be received; and an affidavit sworn before an attorney's clerk shall not be received in cases where it would not be receivable if sworn before the attorney himself; but this rule shall not extend to affidavits to hold to bail. affidavit sworn before the clerk to an attorney, who makes an application that his client may be admitted as a party to a cause, is not within the prohibition of this rule (r).

An

By the 3 & 4 W. 4, c. 42, s. 42, a power is given of granting commissions to take affidavits in Scotland and Ireland, to be used in the superior courts of common law and equity at Westminster. And the enactment, after reciting that "it would be convenient if the power of the superior courts of common law and equity at Westminster to grant commissions for taking affidavits to be used in the said courts respectively should be extended, " is as follows: "That the Lord High Chancellor, Lord Keeper, or Lords Commissioners of the Great Seal, the said Courts of Law, and the several judges of the same, shall have such and the same powers for granting commissions for taking and receiving affidavits in Scotland and Ireland, to be used and read in the said courts respectively, as they now have in all and every the shires and counties within the Kingdom of England, and dominion of Wales, and town of Berwick-upon-Tweed, and in the Isle of Man, by virtue of the statutes now in force; and that all and every person and persons wilfully swearing or affirming falsely in any affidavit to be made before any person or persons who shall be so empowered to take affidavits under the authority aforesaid, shall be deemed guilty of perjury, and shall incur and be liable to the same pains and penalties as if such person had wilfully sworn or affirmed falsely in the open court in which such affidavit shall be intitled, and be liable to be prosecuted for such perjury in any court of competent jurisdiction in that part of the United Kingdom in which such offence shall have been committed, or in that part of the United Kingdom in which such person shall be apprehended on such a charge.

Where it appeared from the affidavits that the defendant not in Chief had been arrested for the amount of a bill of exchange, upon an affidavit made at Athlone, county of Roscommmon, in Ireland, purporting to be sworn before a commissioner for taking affidavits for the Court of Common Pleas, in the

(0) Haddock v. Williams, 7 Dowl. 327.
(p) Goodtitle d. Pye v. Badtitle, 8 T. R.

638.

(9) Read v. Cooper, 5 Taunt. 89: and see

Williams v. Hockin, 8 Taunt. 435; Tidd,
Pract., 9th ed. 494.

(r) Doe Grant v. Roe, 5 Dowl. 409.

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said county, and was signed "John Gaynor, who stated CHAP. XXXVI. that he was not a commissioner for taking affidavits in the courts of England, but of Ireland; the court having referred to the Chief Justice's clerk's list of commissioners, wherein Mr. Gaynor's name was not found, discharged the defendant out of custody on entering a common appearance (s).

insufficient.

It has been made a question, but not decided, whether a British Consul British consul, or vice-consul, resident in a foreign country, has authority, by virtue of his office, to administer an oath for the purpose of holding a defendant to bail in this country (t). And it has been held in a late case that an affidavit of the verification of the certificate of the acknowledgment of a married woman under the Fines and Recoveries Act, the parties being resident in Germany, must be sworn before a native court, and an affidavit sworn before the British consul is not sufficient (u).

sworn abroad.

If an affidavit, intended to be used in the court, be sworn Verification before a judge in Ireland or Scotland, the judge's signature &c., where of Signature to the jurat must be verified by an affidavit made in this Affidavit country; but, if sworn before any other person, (except a commissioner authorized by the above act, 3 & 4 W. 4), or before any judge or other officer in a foreign country, not only his signature to the jurat, but also his authority to administer oaths and take affidavits, must be verified in like manner (x); or by the certificate of a notary public (y), or, it would seem, of a British consul (2). The Court of Exchequer in this country have, in several instances, allowed an affidavit sworn before a commissioner of the Court of Exchequer in Ireland, or a magistrate in Scotland, to be read (a).

sworn,

When to be Sworn.] As to when affidavits in support of When to be a rule must be sworn, see ante, 1185; against a rule, ante, 1191; on moving for new trial, ante, 1101; to hold to bail, ante, Vol. I. 485.

Where an application to the court is to be founded on an affidavit, such affidavit must be sworn and produced in court before the rule shall be drawn up, &c. (b).

filed.

When to be Filed.] Affidavits to hold to bail are filed at When to the time you sue out the process (c). As to filing affidavits on motions, see ante, 1185, 1191, 1194. By rule of all the courts of H. T., 1 Vict., it is ordered, "that all affidavits read before a judge of any of the said courts, or before a

(s) Sharp v. Johnston, 4 Dowl. 324; 2 Bing. N. C. 246; 2 Scott, 405; 1 Hodges, 298; 11 Leg. Obs. 117, 118, S. C.: and see Wranken v. Frowd, 11 Leg. Obs. 261.

(t) Pickardo v. Machado, 4 B. & C. 886; 7 D. & R. 478, S. C.: Er p. Lady Hutchinson, 1 Moo. & P. 559; 4 Bing. 606, S. C.: Riddell v. Nash, 8 Moore, 632.

(u) In re Eady, 6 Dowl. 615: see Rid dell v. Nash, 8 Moore, 632. In re Barber, 4 Dowl. 640, seems from the marginal note to be an authority the other way, but the real point decided In re Barber seems to be merely that a consul may certify the handwriting and authority of the party taking the affidavit of acknowledg

ment, and not that he may take the affi-
davit himself.

(a) See Kench v. Bellew, 1 M. & Sel.
302: O'Mealy v. Newell, 8 East, 364: Dal-
mer v. Barnard, 7 T. R. 251: Erp. Wors-
ley, 2 H. Bl. 275: Pickardo v. Machado, 4
B. & C. 886; 7 D. & R. 478, S. C.

(y) Ex. p Worsley, 2 H. Bl. 275.
(3) See In re Barber, 4 Dowl. 640, per
Tindal, C.J.; and quære as to the margin-
al note?

(a) Kilby v. Stanton, 2 Y. & J. 75: El-
lis v. Sinclair, 3 Y. & J. 273: Watson v.
Williamson, 1 Dowl. 607.

(b) R. H., 36 G. 3, r. 1: ante, 1185.
(c) See Vol. I. 520.

PART I.

BOOK IV. master of the same, shall be filed with the masters of the said courts, and be alphabetically indexed. Such affidavit to be delivered to the said masters, in order to be filed, four times in the year; that is to say, the last day of each term. In all other cases, if the affidavit be sworn in town, they must be filed with the masters, as soon as used, whether the motion be granted or not, in order that they may be given in evidence, if necessary, on an indictment for perjury (d); but if sworn before a commissioner, in strictness they should be first filed with the masters, and then copies taken of them, for the purpose of being used in court (e), which, however, is not attended to in practice. Affidavits used before the master on taxation of costs cannot be read on shewing cause against a rule for reviewing the taxation, unless they are referred to in the rule; a notice that they will be used is not sufficient (f). If the opposite attorney, on demand made, refuse to file the affidavits, or give a copy of them, the court will interfere and compel him (g). Affidavits, when once filed, may be made use of by the opposite party, though the party who filed them may decline to use them (4).

Where Time

limited by Rule.

Affidavits sworn in the

Country may

be used with out taking Copies.

How long in
Force.

Defects, when aided, amended, &c.

Also, as we have seen ante, 1191, 1192, in all cases where a special time is limited in any rule, before which time an affidavit is required to be filed, no affidavit filed after that time shall be made use of in court, or before the master, unless it shall appear to the satisfaction of the court that the filing of such affidavit within the time limited was prevented by inevitable accident.

By rule of all the courts of H. T., 1 Vict., it is ordered, "that on and after the fourth day of the present Hilary term, all affidavits sworn before a commissioner in the country, or a judge of assizes on the circuit, be read in the several Courts of Queen's Bench, Common Pleas, and Exchequer, or before any judge of the same, or any of the masters thereof, in like manner as other affidavits, and without obliging the parties filing them to obtain copies of the

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How long in Force.] Age is, in general, no objection to an affidavit (i), unless the case is one in which the lapse of time affects the matters contained in it; as in the case of an affidavit of debt, which is only good for a year, it being presumed after that period that the debt is paid (j).

Defects, when Aided, Amended, &c.] Defects in affidavits are very rarely aided; and, if defective, time is seldom granted to cure the defect, except in some cases in the justification of bail. In the case of affidavits to hold to bail, defects are waived in general after the expiration of eight days from the arrest (Vol. I. 503); but they cannot in any case be remedied by a supplementary affidavit. (Id. 502). An affidavit cannot be made use of if altered after it is sworn (4).

(d) Rer v. Crossley, 7 T. R. 315: Johns
v. Mills, 14th Nov. 1832; K. B. MS.; 1
Dowl. 510, S. C.: Er p. Dicas, 2 Dowl.
92: Erp. Elderton, 1d. 568.

(e) 29 C. 2, c. 2: R. M., 9 G. 2.
(f) Cliffe v. Rosser, 2 Dowl. 21.

(g) Er p. Dicas, 2 Dowl. 92.

(h) Price v. Hayman, 7 Dowl. 47.

(i) Doe Clarke v. Stilwell, 3 Nev. & P. 701: but see Burt v. Owen, 1 Dowl. @1. (j) Ante, Vol. I. 497.

(k) Wright v. Skinner, 5 Dowl. 92.

Appearing and using affidavits in opposition to a rule do not CHAP.XXXVI. waive an objection to the title of the affidavit on which the rule was moved (1). Two months delay in making an objection is no waiver of it (m). Where a rule has been obtained on an affidavit, which is defective in not having a proper jurat, the party moving cannot, when cause is shewn, and the objection taken, remove the effect of it by producing a fresh affidavit similar to the first, with a proper jurat: the proper way is to re-swear the original affidavit, and the court will enlarge the rule for that purpose, or allow the new affidavit to be filed (n). Where a motion for a rule nisi is made upon certain affidavits, the party will not be allowed afterwards, when cause is shewn, to make use of any other affidavits made subsequently, at least without the leave of the court, unless such additional affidavits be merely confirmatory of what was already sworn when the rule nisi was made (o); nor will he be allowed to make use of any other affidavits, made previously in the same cause, and already on the files of the court, unless they be expressly specified in the rule nisi (p). If there is a defect in intitling affidavits produced in shewing cause against a rule, the court will sometimes allow the rule to be enlarged, in order that the title may be amended (q). In a recent case, the court refused to allow the title in the affidavit to be amended (r). See further as to the amending an affidavit, ante, 1136, 1137. If the affidavit be sworn before a party having no authority to receive it, it will be a nullity. It seems that where a rule is discharged on a technical objection taken to an affidavit, without going into the merits, no costs are allowed (8).

(1) Clothier v. Ess, 3 Moo, & Scott, 216; 2 Dowl. 731, S. C.: see Levy v. Duncombe, 3 Dowl. 447.

(m) Sharp v. Johnston, 4 Dowl. 324. (n) Goodricke v. Furley, 4 Dowl. 392: R. v. Justices of Warwick, 5 Dowl.382: but see R. v. Cockshaw, 2 Nev. & M. 278.

(o) See ante, 1185, 1191: Solloway v. Whorewood, 2 Salk. 461.

(p) Per Bayley, J., MS., E. 1824: and see Quelle v. Boucher, 1 Scott, 283; 3 Dowl. 107, S. C.

(g) Anderson v. Ell, 3 Dowl. 73.

(r) Phillips v. Hutchinson, 3 Dowl. 20.
(8) Preedy v. Lovell, 4 Dowl. 671, Exch.:
Harris v. Matthews, 4 Dowl. 608; but see
Houlditch v. Swinfen, 5 Dowl. 36.

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