name or names, it is sufficient to designate such persons in an affidavit by the same initial letter or letters, or contraction, of the Christian or first name or names, instead of stating the Christian or first name or names in full; the affidavit should show such initials to have been so used (Holbert v. Williams, 8 Dowl. 139). Where the defendant is described by initials, by a wrong name, or without a Christian name, it should appear that due diligence has been used to obtain knowledge of the proper name; but as a general rule it is sufficient if the identity of the parties clearly appears (Baldwin v. Bannerman, 12 C. B. 152). It should also clearly appear which parties are plaintiffs and which defendants (Harris v. Griffith, 4 Dowl. 289). Entitling a cause as " C. D. ats. A. B." instead of A. B. v. C. D. has been held bad (Richards v. Isaac, 2 Dowl. 710). If defective in either of these respects, the affidavit may be rejected.

repre

tive character.

If the plaintiff sue, or the defendant is sued, in a representa- Representative capacity, as executor, administrator, or assignee, his sentative character must be stated (Wright v. Hunt, 1 Dowl. 457); and the party of whom the plaintiff or defendant is executor, administrator, or assignee must be stated; "assignee, &c." for instance, being insufficient (Casley v. Smith, 4 Dowl. 477).

(b) By whom to be made.

The affidavit as to the cause of action need not necessarily be made by the plaintiff. It may be made by one of several plaintiffs (Swayne v. Crammond, 4 T. R. 176). It may be made by another person, who can swear to the cause of action, the existence of which should not only be shown according to his knowledge, but the means of that knowledge should appear, that the court or judge may see whether the deponent has sufficient means of knowledge.

Abode of de

The true abode and the addition of the deponent, or of all the deponents, if several, should be stated in the affidavit (Cobbett v. ponent." Oldfield, 16 M. & W. 469; R. G., H. T. 1853, r. 138).

It is sufficient if the deponent describe himself as "of the city

of London, merchant" (Vassier v. Alderson, 3 M. & S. 165); or

as "of Bath, in the county of Somerset, esquire" (Coppin v.

Potter, 2 Dowl. 785).

Where a foreigner, who had come to this country merely for Foreigner. temporary purposes, described himself as of his place of residence abroad, it was deemed sufficient (Boutchet v. Kittoe, 3 East, 154).

It is sufficient if the clerk to an attorney state the place of Clerk. business of such attorney as his residence (Strike v. Blanchard, 5 Dowl. 216; Attenborough v. Thompson, 2 H. & N. 559). Where a deponent described himself as "S. clerk to E. J. Esq., barrister-at-law, and assessor of the Court of Passage of the borough of L.," the affidavit was rejected (Winch v. Williams, 12 C. B. 416).

A clerk may describe himself as of the office where he does business during the day, although he sleep elsewhere (Haslop v. Thorne, 1 M. & S. 103).

A person lately discharged from prison, but who slept there, was held sufficiently described as late of that prison. The residence stated must be the true one; therefore a deponent cannot describe himself as late of a place where he has ceased to reside, when he actually resides elsewhere at the time (Sedley v. White, 11 East, 528).

Addition of deponent.

Distribution.

Must be cer

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An affidavit must state the rank or degree in life, profession or trade of the deponent, unless he is a party in the cause. This addition ought to be stated with sufficient certainty. "Merchant" (Vassier v. Alderson, supra), manufacturer," late clerk to," &c., managing clerk to," &c. (Simpson v. Drummond, 2 Dowl. 473), "agent of the plaintiff" (Luxford v. Groombridge, 2 Dowl. N. S. 332), have been held to be sufficient additions; but see Winch v. Williams, ubi supra. An affidavit by "R. J., late of the city of W., victualler, but now of," &c., without further addition, has been held sufficient (Angel v. Ihler, 5 M. & W. 163). But 66 assessor " is not sufficient (Nathan v. Cohen, 3 Dowl. 370). And the descriptions "acting as managing clerk," &c., or "articled clerk," are insufficient if it be not stated to whom or in what profession (R. v. Reeve, 4 Q. B. 211).

It is not necessary to give any addition to any party mentioned in the affidavit, but to the deponent (Wallis v. Foyce, 1 D. & R. 150).

Nor is it necessary to give the addition of a party to the suit, when deponent, if he describe himself as the above-named plaintiff or defendant (Shirer v. Walker, 2 M. & G. 917).

(c) The Contents.

Affidavits must be divided into paragraphs, and each paragraph must be numbered consecutively, and must be confined as near as may be to a distinct portion of the subject (R. G., M. V. 1854, r. 2).

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The statements made in an affidavit should be such that pertain and ex- jury may be assigned on them if they are false; they should, plicit. therefore, be distinctly expressed. Everything that is material should be stated, as the defendant may have no opportunity to deny the truth of the statement, and nothing should be left to intendment (Frick v. Poole, 9 B. & C. 543); but at the same time no irrelevant matter should be introduced. Statements as to the existence of a cause of action must be direct and positive, and not argumentative (Pomp v. Ludvigson, 2 Burr. 655). Swearing to a debt, "as deponent believes" (Rios v. Belisant, 2 Str. 1209); or, as appears by the bond" (Heathcote v. Goslin, 2 Str. 1157); or, "by the agreement" (Jennings v. Martin, 3 Burr. 1447); or, "according to the bill delivered to the defendant" (Williams v. Jackson, 3 T. R. 575); or even swearing that defendant is indebted in a sum "for which he has not accounted" (Champion v. Gilbert, 4 Burr. 2126), would not be sufficient. An affidavit of debt for goods sold and delivered, which went on to state that the creditor had received no other security save certain bills of exchange, overdue and unpaid, was by Lord Tenterden at chambers held insufficient, as it did not allege that the creditor was the holder. An affidavit, however, that the defendant is indebted in such a sum "as the plaintiff computes it," would be good (Moaltby v. Richardson, 2 Burr. 1032).

May be to deponent's belief.

Where it is from the circumstances clearly impossible to swear positively (as where the cause of action arose from non-payment of bills in India), it is considered sufficient to state that the bills were not paid "to deponent's knowledge and belief” (Hobson v. Campbell, 1 H. Bl. 245).

When facts are not within the deponent's knowledge, he should allege that he has been informed thereof, and that he verily believes them to be true.

Clerical errors are not considered sufficient ground for reject- Clerical ing an affidavit when the meaning is clear. But this will depend errors. upon whether the mistake is material or not. In a case where a

party sued by his next friend, and the affidavit stated the suit to be by her next friend, the affidavit was upheld. An affidavit, however, in which the word "oath" was omitted (Oliver v. Price, 3 Dowl. 261); and another in which the word "said" was substituted for "saith" (Howorth v. Hubbersty, 3 Dowl. 455), were held insufficient.

Where deponent sues droit.

en autre

Affidavits made by parties claiming debts en autre droit, should be as direct and positive as the circumstances of the case will permit. In cases where the creditor's claim arises to him en autre droit, as an executor, administrator or assignee, it is not necessary that he should swear positively; it is enough if he swears to his belief (Roche v. Carey, 2 W. Bl. 850). It would appear that an assignee of a bankrupt may swear to the debt, "as it appears by the bankrupt's books," or "by his last exami.. nation," adding the usual words, "as he verily believes" (Touna v. Edwards, 4 Burr. 2283). Dates, when material, should be sworn to positively; but affidavits by an executor, who swore to the debt being due to the testator, "as appears from a statement made from the testator's books by an accountant employed to investigate the same, as deponent verily believes" (Rowney v. Deane, 1 Price, 402); by an assignee of a bankrupt who swore to the debt, as it appears from the letters of A. and B. "as this deponent believes" (Molling v. Buckholtz, 2 M. & S. 563); by a Bankrupt. bankrupt, who stated that the debtor was indebted to the deponent before the commission, and, "as he believed," was still indebted to his assignees on a bill accepted by him, endorsed by the drawer to deponent, and, "as he believed," still unpaid (Tucker v. Francis, 12 Moo. 347), have been respectively held insufficient. An assignee, as above stated, will be allowed to swear "to the best of his knowledge and belief," to all facts not within his own knowledge. If, however, an executor or assignee swear positively to the debt, the affidavit will not be rejected on that account, however improbable it may be that the deponent should have such positive knowledge.

An affidavit of a debt by a surviving partner should show that Surviving the other partner is dead (Morrell v. Parker, 6 Dowl. 123). An partner. affidavit that the defendant was indebted to the plaintiff and his wife as administratrix of J. P. deceased, was considered sufficient, without stating expressly that J. P. died intestate (Coppin v. Potter, 2 Dowl. 785).

(d) The Cause of Action.

It may be useful to refer to a few of the cases illustrative of Causes of what have been held sufficient and what insufficient statements of action.

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causes of action,"-cases generally decided on applications to

hold defendant to bail; but the principles laid down in these cases may be considered generally applicable to an affidavit necessary for obtaining leave to proceed on a defendant's absence and non-appearance.

In a case where the defendant was stated to be indebted to the deponent, under a deed by which the defendant covenanted to Deed. pay money at a time now past (Lambert v. Wray, 3 Dowl. 1691); and in another, where the defendant was said to be indebted to the plaintiff in 500l. " upon a certain indenture of mortgage, by which the defendant covenanted to pay the said sum of money to

Bond.

Award.

Bills and notes.

Goods sold, &c.

Money lent, &c.

Account stated.

the plaintiff at a certain day now past" (Masters v. Billing, 3 Dowl. 751); the affidavits were held sufficient.

An affidavit on a bond should state the bond to be due and payable (Smith v. Kendal, 7 D. & R. 232). In a case where the affidavit stated the debt to "be for principal and interest due on a bond," without stating the bond to be conditioned for the payment of money (Byland v. King, 7 Taunt. 275), it was held sufficient. An affidavit of debt on an award should state the submission, the making of the award, and that the money was due at a day past (Anon. 1 Dowl. 5). If the award direct the money to be paid by defendant to plaintiff on demand, such demand should be stated (Driver v. Hood, 7 B. & C. 494). An affidavit that the defendant was indebted for damages awarded, and for costs and expenses taxed and allowed, has been held sufficient (Jenkins v. Law, 1 B. & P. 365).

Where the debt arises on bills or promissory notes, these should be stated to be due and unpaid (Kirk v. Almond, 1 Dowl. 318). If a note is payable by instalments, the affidavit should show what instalments are due and unpaid (Hart v. M'Gerris, 3 Tyr. 238). An affidavit, stating the defendant to be indebted in a certain sum, as the balance of a bill drawn by plaintiff and accepted by the defendant, and due at a day past, has been held sutficient (Walmsley v. Dibden, 4 Moo. & P. 10).

It should also appear how the defendant is liable, whether as acceptor, drawer or indorser (Humphreys v. Winslow, 6 Taunt. 531). The affidavit should show the character in which the plaintiff claims, whether as indorsee or payee; and if as indorsee, it should state by whom the bill was indorsed (Lewis v. Gompertz, 1 Dowl. 319).

Intermediate endorsements need not be stated when the maker of a promissory note is sued by an indorsee of the payee (Luce v. Irvin, 6 Dowl. 92); in actions against the drawer of a bill, the affidavit should allege the presentment to, and the default of the acceptor, or facts to dispense with these allegations; but it need not allege notice of dishonour (Simpson v. Dick, 3 Dowl. 731).

Affidavits of debt for "goods sold," not stating delivery, and for "goods sold and delivered," not stating "by the plaintiff to defendant" (Young v. Gatien, 2 M. & S. 603); for goods sold and delivered to the defendant without saying "by the plaintiff" (Carthrow v. Hagger, 1 East, 106); and for goods sold and delivered for the defendant, instead of to the defendant (Bell v. Thrupp, 2 B. & A. 596); for work done and materials provided, and goods manufactured and made by the deponent for the defendant at his request (Pontifex v. Maltzoff, 1 Exch. 436), have been held bad.

An affidavit of debt for money paid, laid out, and expended, and lent and advanced, by plaintiff "to" the defendant, and at his request, omitting the words "for the defendant," has been held insufficient (Frick v. Poole, 9 B. & C. 543). An affidavit for money had and received on account of the plaintiff ought to state it to have been received by the defendant to the plaintiff's use (Kelly v. Curzon, 4 A. & E. 622).

An affidavit that defendant is indebted to plaintiff in 1,000. under an agreement in writing, whereby defendant undertook to pay plaintiff the balance of accounts, &c. "which said balance is still due and unpaid," without stating that the balance was 1,0007. was held insufficient (Hatfield v. Linguard, 6 T. R. 217). But an affidavit that defendant is indebted to plaintiff on the "balance

of an account stated," without adding “and settled” (Tyler v. Campbell, 3 Bing. N. C. 675); and an affidavit, stating defendant to be indebted to plaintiff "on an account stated between them," have been held sufficient (Balmanno v. May, 6 Dowl. 306).

An affidavit against the surety, on a guarantee for goods, Guarantee. should show the amount guaranteed, the terms of the guarantee,

that the time for payment had elapsed, and that the principal

debtor had not paid (Angus v. Robilliard, 2 Dowl. 90).

An affidavit of a cause of action arising on the breach of an Breach of agreement must state a breach of the agreement (Stinton v. Hughes, agreement. 6 T. R. 13).

If interest be sought to be recovered as a debt, the affidavit Interest. should show an express contract (Harrison v. Turner, 4 Dowl. 72). It need not state the amount of the principal, nor the time when it began to run (White v. Sowerby, 3 Dowl. 584).

(e) Before whom Affidavits to be used in the Superior Courts may

be sworn.

Affidavits to be used in the Superior Courts may be sworn before the court or the judge to whom the application is made. An affidavit sworn before a judge of one of the Superior Courts may be used in the court to which such judge belongs, but not in any other court unless entitled in such other court (R. G., H. T. 1853, r. 144). They may also be sworn before a commissioner empowered to take affidavits in the court in which the affidavit is entitled (29 Car. 2, c. 5). See as to affidavits sworn before attornies, their agents, and clerks (R. G., H. T. 1853, rr. 142, 143; and Horsefall v. Matthewman, 3 M. & S. 154).

abroad.

Affidavits, if sworn in Scotland or Ireland, may be sworn before Sworn a commissioner of the court appointed to take affidavits (3 & 4 Will. 4, c. 42). An affidavit may also be sworn either before a judge or magistrate, or other person authorized by law to take affidavits. If the affidavit be sworn before a judge, the judge's signature to the jurat must be verified by affidavit to be made in this country (Dalmer v. Bernard, 7 T. R. 252). If sworn before a magistrate or other person, not only the signature, but also the authority to administer an oath, must be verified in like manner, or by the certificate of a notary public (Ex parte Worsley, 2 H. Bl. 275), or a British consul acting in this case as a notary public (6 Geo. 4, c. 87, s. 20; Re Barber, 4 Dowl. 640).

A notarial certificate proves itself (Coles v. Sherrard, 11 Exch. 482); as to its effect, see Chesmer v. Noyes, 4 Camp. 129.

An affidavit made abroad may be sworn before a magistrate Abroad. there, but his signature and his authority to administer an oath must be verified in like manner (Omealy v. Newell, 8 East, 364).

Affidavits and notarial acts may now be made and done abroad before and by English ambassadors and other diplomatic agents, and before consuls; and may be received in evidence without proof of the seal or signature of such ambassador or official person which they may purport to have affixed to them (18 & 19 Vict. c. 42).

(f) The Jurat.

In the jurat must be stated the date of swearing the affidavit Jurat. (Blackwell v. Allen, 7 M. & W. 146), as also the place and county where it is sworn, if sworn before a commissioner (Cass v.