May be to deponent's belief.

Clerical errors.

Where deponent sues en autre droit.

Bankrupt.

Surviving partner.

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. 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).

An

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; and see Roe v. Bradshaw, ubi supra).

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 rejecting an affidavit when the meaning is clear. But this will depend 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.

66

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 examination," 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, 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 the other partner is dead (Morrell v. Parker, 6 Dowl. 123). An 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.

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 Deed. deponent, under a deed by which the defendant covenanted to 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 5001. "upon a certain indenture of mortgage, by which the defendant covenanted to pay the said sum of money to 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 Bond. 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 suflicient.

An affidavit of debt on an award should state the submission, Award. 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 Bills and be stated to be due and unpaid (Kirk v. Almond, 1 Dowl. 318), notes., 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 ac. cepted by the defendant, and due at a day past, has been held sufficient (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 indorsements 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 affidavits 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 Goods sold, for "goods sold and delivered," not stating "by the plaintiff &c. to defendant" (Young v. Gatien, 2 M. & S. 603; Handley v. Franchi, L. R. 2, Ex. 34); 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 manu

Money lent,

&c.

Account stated.

Guarantee.

Breach of agreement.

Interest.

Sworn

abroad.

factured and made by the deponent for the defendant at his request (Pontifex v. Maltzoff. 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 1,000l., 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 1,000/., 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 be. tween them," have been held sufficient (Balmanno v. May, 6 Dowl. 306).

An affidavit against the surety, on a guarantee for goods, 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 agreement must state a breach of the agreement (Stinton v. Hughes, 6 T. R. 13).

If interest be sought to be recovered as a debt, the affidavit 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, post). 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, s. 2). See as to affidavits sworn before attornies, their agents, and clerks (R. G., H. T. 1853, rr. 142, 143, post; and Horsefall v. Matthewman, 3 M. & S. 154).

Affidavits, if sworn in Scotland or Ireland, may be sworn before a commissioner of the court appointed to take affidavits (3 & 4 Will. 4, c. 42, s. 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;

Re Cooper, 18 C. B., N. S. 220; L. J. 34, C. P. 220).

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); and see s. 23 (post, p. 29).

(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. Cass, 1 D. & L. 698). The place, however, may be stated by reference, if it be mentioned in the body of the affidavit (Grant v. Fry, 8 Dowl. 234).

If the affidavit be sworn before a commissioner, the words "before me" must be inserted in the jurat, and the omission of these words cannot be waived (R. v. Bloxham, 2 D. & L. 168). It should appear that the person before whom it is sworn is a commissioner of the court in which it is entitled; but it is no objection that the affidavit is entitled in the Queen's Bench, and is stated to be sworn before a commissioner of the Exchequer, unless it be shown that that commissioner is not a commissioner of the Queen's Bench (Cheney v. Courtnois, 13 C. B., N.S. 634; L. J. 32, C. P. 116).

If the affidavit be made by two or more persons their several names must be written in the jurat (R. G., H. T. 1853, r. 139, post).

If the affidavit be made by a person who appears to be illiterate, the fact that the affidavit was read to the party making it, and that the deponent seemed perfectly to understand the same, ought to be stated in the jurat (Haynes v. Powell, 3 Dowl. 599; R. G., H. T. 1853, r. 141, post). When the deponent makes his mark, it should appear from the jurat that the mark was made by the deponent (Wilson v. Blakey, 9 Dowl. 352).

If sworn before a com

missioner.

If deponent

be illiterate.

abroad.

If sworn abroad, the jurat ought to state the place specially;- If sworn so held in Walker v. Christian, by Bosanquet, J., after consultation with the judges (2 Chit. Pract. 12th edit. vol. ii. p. 1621). Where an affidavit is made by a foreigner in English, an in- If made by a terpreter must be sworn to interpret it truly, and the jurat should foreigner." state that the interpreter was so sworn, and did so interpret (Bose v. Solliers, 4 B. & C. 358). If the affidavit be in a foreign language, there must be another affidavit by an interpreter as to its translation and meaning (Re Eady, 6 Dowl. 615).

A rule of the Superior Courts provides, that no affidavit shall Jurat. be read or made use of in the jurat of which there shall be any interlineation or erasure (R. G., H. T. 1853, r. 140, post). A line drawn through two words in the jurat, leaving them, however, perfectly legible, is an erasure within this rule, and vitiates the affidavit (Williams v. Clough, 1 A. & E. 376). Striking out the date mentioned in the jurat with a pen, and introducing the right

D.

Signature of deponent.

date, is an erasure within the meaning of the above rule (Chambers v. Barnard, 9 Dowl. 557).

An alteration in the jurat, or other parts of an affidavit after it is sworn, nullifies it; it cannot be used. But if the jurat be struck out, it may be re-sworn. If an interlineation is made in an affidavit previously to its being sworn, it should be noticed by the person before whom it is sworn, by placing his initials in the margin, for, if the objection is taken, the affidavit cannot be read.

The same observations apply to affirmations. The jurat of an affirmation will, of course, be " affirmed," before me, &c. (See hereon the C. L. P. A. 1854, ss. 20, 21, post.)

An affidavit of which the jurat is defective cannot be used, and a rule procured on it will be discharged with costs (Cobbett v. Oldfield, 16 M. & W.469).

(g) Signature of Deponent.

An affidavit ought to be signed by the deponent; if he cannot write he ought to make his mark (Wilson v. Blakey, 9 Dowl. 352; Nathan v. Cohen, 3 Dowl. 370). The usual signature ought to be used, though it do not correspond with the name given to the deponent in the affidavit (Hands v. Clements, 1 D. & L. 379). An affidavit without deponent's signature, made in Germany, was admitted, it appearing that such was the practice in Germany (Re Eady, 6 Dowl. 615).

(h) Exhibits.

Exhibits referred to in or attached to affidavits must be specified (Re Joseph Allison, 3 W. R. 62, Ex., M. T. 1854); and copies of such exhibits, if not filed, must be given to the other side, if required (Tebbutt v. Ambler, 7 Dowl. 764).

(i) Filing.

All affidavits must be filed within the time (if any) prescribed, unless leave to file them afterwards be obtained (R. G., H. T. 1853, r. 145, post).

Affidavits used at chambers must be filed with the Masters of the court, and must be delivered to them for that purpose within ten days next after that on which the matter was disposed of (R. G., H. T. 1853, r. 147, post).

The rules of court relating to affidavits (which see, post) are R. G., H. T. 1853, rr. 139 to 148, and R. G., M. V. 1854, r. 2.

Writ must come to defendant's knowledge.

2. The court or judge must be satisfied that the defendant was personally served, or that reasonable efforts were made to effect personal service, and that the writ came to the defendant's knowledge. As to what will be considered reasonable efforts to effect personal service, see p. 13, ante. But it is to be observed that, from the peculiar language of s. 18, the plaintiff must do more than he is required to do by s. 17. He must not only show reasonable efforts to have been made, but he must show that the writ came to the knowledge of the defendant. As to what will constitute "a coming to the knowledge" of the defendant, see p. 13, ante.