Sidor som bilder
PDF
ePub

Where a statute requires that a certain affidavit shall be made, without saying before whom, it may be taken before any magistrate or officer having power to administer an oath.57

Cannot be taken by attorney.

Affidavits taken abroad.

If the officer before whom the affidavit is taken is also the attorney in the cause, it will not be suffered to be read,58 but the rule does not extend to the counsel in the cause ;59 nor to an attorney who is partner of the attorney on record;60 nor, it seems, to a clerk of the attorney in the cause, the clerk being a commissioner.61

The court will in general allow affidavits taken abroad to be read in all collateral matters arising in the progress of a cause, as on a motion for a commission, &c.62 In what manner affidavits taken in other states, and in foreign countries, must be authenticated to entitle them to be read here, has al

ready been considered.63 Affidavits on

All affidavits read in court, in support of, or to oppose a motion, either enumerated or non-enumerated, and whether the motion be granted or denied, must be filed with the clerk ; and they then become records of the court, and cannot be taken off the file.64 If this be omitted, the court will order it to be done upon an informal suggestion, without any notice: nor can the defendant object that the affidavit is sought to be filed with a view to prosecute him for perjury. 65

motion must be filed.

57 9 Cowen. Rep. 194.

58 12 Johns. Rep. 340. 5 Taunt.
89.

59 15 Johns. Rep. 531.
60 17 Johns. Rep. 2.
61 8 Term Rep. 638.

62 2 Johns. Rep. 373. 13 Johns.
Rep. 423. and see ante, Vol. 1. p.
380.

63 Ante, Vol. 1. p. 481. R. St. P. 3. Ch. 7. T. 3. s. 25. Vol. 2. p. 396. It will be seen by reference

to the decisions cited in the preceding note, that it has been the practice of the court to allow affidavits to be read which had been taken before consuls and other public agents, &c.; but this does not seem admissible under the revised statutes. See section above cited.

64 2 Wils. 371. 5 Cowen. Rep. 13.

65 5 Cowen. Rep. 13.

+

.

are sued,

Entitling of affidavits.] All affidavits should regularly Title of be entitled in the court where they are made or intended to names of be used ;66 and the title should likewise contain, besides the name of the court, the christian and surnames of all the

parties, st and the character in which they sue or are sued.68

But though the character in which a party sues or is sued, Character in be not stated, yet if the parties are correctly named, and the ties sue, or body of the paper shows its applicability and its object, this it seems is sufficient. 69

Affidavits and other papers on the part of the defendant should not be entitled A (the plaintiff) versus B (the defendant); but the order of the names should be reversed, and the cause entitled B ad sectam (at the suit of) A: and an error in this respect is a fatal objection to a motion, unless some of the accompanying papers are properly entitled, so that the mistake can be rectified.70

The same rules in general prevail with respect to entitling General notices, pleadings, and all other papers; and it is a ruling principle, that if the party served be not misled, or the papers be not such as may evidently mislead, a mere clerical misprison, shall not prejudice.71 And in case of an affidavit, the court will further inquire whether the defect be of such a nature, that if false, an indictment for perjury will lie; and therefore if wrongly entitled, it cannot, in many cases, be read, although the cause be rightly described in the body.72 Where

* 1 Tidd. Pract. 298.

planation, is fatal. 3 Taunt. ib. 1 2 Salk. 461. 2 Term Rep. Chit. Rep. 728. note. 644. 7 Term Rep. 454. 8 Taunt. 69 5 Cowen. Rep. 287. 617. I Chit. Rep. 727, 728.; the 70 1 Caines' Rep.112.344. Quere, initials of Christian names are per- whether in an affidavit an error of haps sufficient. 2 Bos. & Pul. 466. this kind is not always fatal ? and

63, Taunt. 377. And it has see 2 Cowen. Rep. 509. been held, that an ambiguity in the 71 3 Caines' Rep. 133. 4 Cowen. title, such as styling the plaintiff Rep. 51.

assignee,” without saying of 72 2 Cowen. Rep, 509. ahom, or giving any further ex

an affidavit was entitled in two ways, one right and the other wrong, so that it appeared as if there were two causes, but the affidavit proceeded to speak of the cause in the singular, it was held that this was sufficient.73

Where there are several defendants in one suit, who appear by different attornies, and sever in their pleas, although the plaintiff must serve separate notices on the respective attornies, yet the papers ought to be entitled with the names of all the defendants.74

Marriage of feme sole

need not be noticed.

Where a feme sole is sued, and marries pending the suit, defendant

, this need not be noticed in the subsequent proceedings, but

affidavits, notices, &c., should be according to the original title of the cause.75 If they treat of the husband as a party, they are defective; but if the marriage is mentioned in the title merely as descriptive of the feme, this is immaterial.76

It may be proper to remark here, that in engrossing, entitling, and endorsing papers, care should be taken to transcribe them in a fair and legible hand; since, if from any carelessness in this respect, the opposite attorney is misled, the party by whose fault it has been occasioned will be made to suffer the consequences of his own negligence. Thus where the initial letter of an attorney's name in a notice of retainer, was so carelessly written, that the plaintiff's attorney mistook it, and in consequence thereof, put up a notice to plead in the clerk's office instead of serving the declaration and notice on the defendant's agent, the court refused to set aside the default which had been subsequently entered, there being no affidavit of merits. 77

Papers must be legibly written.

73 2 Cowen. Rep. 581.

was held, that his papers might be 74 1 Caines' Rep. 19. In the entitled in a suit of the plaintiff common pleas in England, where against himself alone. 6 Taunt. 5. the plaintiff joined several defend. S. C. 1 Marsh. 103. sed vide 1 ants in an unbailable suit, upon ap- Chit. Rep. 727, 8. a. plication before declaration, by one 75 2 Cowen. Rep. 581. upon whom the writ had been irregularly served to set it aside, it

76 Ibid.

When affidavit should not be entitled, and how entitled in Where there particular cases.] Where there is no suit pending, but the pending. affidavit is to be used as the foundation of a writ, it should not be entitled in any cause.78 Thus it is a settled rule of practice in the English courts, that on a motion for an information, or in an affidavit to hold to bail, the affidavit must not be entitled, and if entitled cannot be read.79 The reason assigned is, that as there is at the time no such cause pending in the court, an indictment for perjury could not be sustained. 30 And so this court has refused to grant a mandamus to a court of Mandamus. common pleas, to compel them to give judgment in a cause, because the affidavits on which it was moved for, were entitled in the suit in the court below.81

It is on the same principle, as we have already observed, that the court will not allow an affidavit to be read which is improperly entitled in a suit which has no existence. And Rule stricter this circumstance makes the rule, with respect to entitling affi- to affidavits, davits, stricter than when applied to notices and other papers ; papers. for the court are to consider not only whether the opposite party may have been misled, but whether, if the deponent swear falsely, an indictment for perjury will lie. But where the affidavit, though defective, is such that an indictment would lie upon it, and from the accompanying papers its applicability and the nature and object of the application are evident, the court will suffer it to be read notwithstanding such defect.83

than other

57 2 Wendell. Rep. 254. Pul. 36. 227. 2 Cowen. Rep. 500. ** 2 Cowen. Rep. 500. An affi- 80 2 Johns. Rep. 372. 12 Johns. davit for a certiorari to a justice's Rep. 461. n. a. 6 Term Rep. 640. court may be entitled in the cause 81 2 Johns. Rep. 371. in the court below, but not in the 82 Ante, p. 55. 2 Cowen. Rep. cause in this court. 2 Cowen. Rep. 509. 499.

83 5 Cowen. Rep. 287. 79 7 Term Rep. 450. 1 Bos. & VOL. II.

8

Affidavits on motion to set

86

for an at

Affidavits in support of, or in answer to, a motion for setting aside award, aside an award, need not be entitled 184 and when a submission

to an award is made a rule of court under the statute, there being no action, the affidavits on which to apply for an attachment for disobeying the award need not be entitled :85 but after a rule nisi for an attachment, the affidavits in answer

must be entitled in the name of the people. On motions In motions for an attachment founded on matters arising tachment.

in the progress of a suit, as against the sheriff for not returning the writ, &c., the affidavits and proceedings prior to the attachment, including the rule for the attachment, must be entitled in the original suit; but all subsequent proceedings

should be in the name of the people. 87 Bail bond On moving to set aside proceedings in a bail bond suit, the

affidavits must be entitled in that and not in the original suit; but the court allowed affidavits entitled in the original suit to be read, where they were accompanied with an order to stay proceedings and notice of a motion, entitled in the bail bond suit, and showing the real object of the application.

Where the defendant had been taken on an erroneous ca. sa., and brought an action of false imprisonment, and the plaintiff afterwards moved to amend the ca. sa., it was held that the papers might be entitled in the suit for false imprisonment.

suit.

.88

89

90

General form, &c. of affidavits.] In point of form, affidavits begin with stating the names, places of abode, and usually also additions of the persons by whom they are made ; though this perhaps is not requisite.101 The affidavits should contain

5 East. Rep. 21.

435. 524. 2 Bos. & Pul. 517. n. a. 85 12 East. Rep. 166. n. a. 12 East. Rep. 165.

86 12 Johns. Rep. 461. n. a. 3 88 Ante, p. 21. 1 Bos.& Pul. 337. Term Rep. 601. 5 East. Rep. 21. 89 5 Cowen. Rep. 287.

Caines' Rep. 98.
87 12 Johns. Rep. 460. 9 Johns. 101 In the king's bench it is a
Rep. 160. 5 Johns. Rep. 235. 3 rule that the addition of every per-
Term Rep. 133. 253. 7 Term Rep. son making an affldavit shall be

n. a.

[ocr errors]
« FöregåendeFortsätt »