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Afdavit

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Description
This section is from "The American Cyclopaedia", by George Ripley And Charles A.
Dana. Also available from Amazon: The New American Cyclopdia. 16 volumes
complete..

Afdavit
Adavit (Lat., he has sworn or deposed), a statement in writing, signed by the
deponent and veried by his oath or armation made before a person authorized to
take it. The adavit is the instrument by which the action of courts is invoked in
proceedings taken in the rst instance ex parte, either with reference to existing
actions or in special proceedings independent of such causes. Thus it is used in
actions for the purpose of procuring attachments or injunctions, or in support of
motions of any sort incidental to the suit in its ordinary course; or to obtain a writ of
mandamus or of habeas corpus, or a warrant for the arrest of a criminal; or upon an
application to oppose or vacate any of these or the like proceedings. As adavits
are in such cases ex parte, that is to say, when they are presented by the applicant
for the relief, there is no nal adjudication upon the matter involved until the other
party interested has had an opportunity to be heard. But the sworn allegations of
the rst party are ordinarily sucient to set the power of the court in motion in his
favor. For the reason, too, that an adavit is ex parte or one-sided, it is the general
rule that the testimony of witnesses in causes tried in courts cannot be received in
this form.

A party to an action has the right to cross-examine witnesses oered against him,
and this right would be annulled by admitting adavits against him. - No particular
form of an adavit is prescribed by our law; but in England very lately the courts
have made some very expedient rules on the subject which are intended to cure
some of the most frequent abuses and defects of these instruments. They require
that the adavit shall be framed in the rst person, and be divided into paragraphs
consecutively numbered, and each of them containing as far as possible a distinct
portion of the subject. The occupation an 1 residence of the deponent must be
inserted. When the paper is sworn to by an illiterate person, the jurat, or certicate
of the ocer who administers the oath, must state that the adavit was read over
to the party, and that he seemed to understand its contents. The jurat must also
certify that the signature or mark of the deponent was made in the ocer's
presence. The adavit cannot be read in court if there are any interlineations or
erasures in the jurat, or if there are any in the body of the adavit, unless they are
noted with the initials of the ocer. - As to the form and nature of the instrument
generally: If the adavit is made with reference to any pending action, it should be
headed with the title of that action and the name of the court.

It must specify the state and county in which it is made, in order that it may appear
on the face of the paper that the ocer who took the oath had capacity to do so; for
the power of the ocer in this respect is conned to certain limits, and an oath
administered outside of his jurisdiction is a nullity. Then follows the statement of
facts, and this, according to a practice much followed now in New York, should be a
simple narrative in the rst person and conned to facts which are within the
ac-tual knowledge of the deponent. Facts communicated by third persons are not
proper, un-less the adavits of those persons cannot be obtained; and in that case
the sources of information should be given, and also the reason why the parties
who have actual knowledge | do not themselves testify. The statement must I be
signed by the deponent, or marked if he cannot write, though the omission of the
signature or mark will not be fatal if the jurat shows that the aant actually swore
to the statement. The jurat is the clause which is appended by the ocer taking the
adavit, in which he certies the time when and the fact that the deponent made
oath to the instrument before him. - The persons who may take adavits are
designated by law.

In England they are the judges and certain commissioners and authorized attorneys
and solicitors. The authority of these last must be entered in a book kept for public
reference. Conveyancers who are not attorneys or solicitors of the courts, at
Westminster cannot be qualied. In the United States, judges, justices of the peace,
commissioners of deeds, notaries public, and other and similar ocers have
authority by statute to take adavits. All the states also appoint commissioners
residing in other states and territories, and give them the same power as to such
instruments to be used in the states which appoint them. The certicates of these
ocers are ordinarily further veried by the secretaries of state of the appointing
states, who keep a record of all qualied commissioners. By recent statutes of New
York (1863 and 1869), adavits to be used there may be taken in foreign countries
and in other states by any person who is authorized there to exercise a like power.
Judges of the higher courts in other states are also vested by most of the states
with the same powers given to their commissioners.

Generally, the authority of all foreign ocials to administer oaths must be veried
by some court or higher ocer of the foreign state; or when a judge takes the
adavit, his signature must be authenticated by the clerk and seal of-his court.
Certain ocers of the United States residing abroad, the consuls at London and
Paris for example, may also take adavits, and their consular seals suciently
authenticate their acts. British ambassadors and consuls have similar powers by |
the English law. In 1802 a law was passed in New York authorizing colonels of the
state regiments and certain other military ocers to; take adavits of persons in
actual service out ! of the state. - An adavit of merits is one made by a defendant
which sets forth that he has stated the case to his counsel, and that he is advised
by him that he has a good defence to the action upon its merits. This adavit is
required by law, in order that a defendant may not delay a plaintis remedy by
making groundless defence to his suit; but the requirement of it does not always
accomplish the designed object.

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