96

the subscribing witnesses; that such witness was dead; and that the signature of such subscribing witness was genuine. A pardon certified under the great seal of the State was admitted in evidence. A copy of a survey certified by the register, by the judge, and by the secretary of state under the great seal, was admitted in evidence.98 The clerk's certificate should show that the judge is the presiding judge, or that he is the presiding judge for the district.99 This statute does not apply to court records.100

"It shall be lawful for any keeper or person having the custody of laws, judgments, orders, decrees, journals, correspondence, or other public documents of any foreign government or its agents, relating to the title to lands claimed by or under the United States, on the application of the head of one of the Departments, the Solicitor of the Treasury, or the Commissioner of the General Land Office, to authenticate copies thereof under his hand and seal, and to certify them to be correct and true copies of such laws, judgments, orders, decrees, journals, correspondence, or other public documents, respectively; and when such copies are certified by an American minister or consul, under his hand and seal of office, to be true copies of the originals, they shall be sealed up by him and returned to the Solicitor of the Treasury, who shall file them in his office, and cause them to be recorded in a book kept for that purpose. A copy of any such law, judgment, order, decree, journal, correspondence, or other public document, so filed, or of the same so recorded in said book, may be read in evidence in any court, where the title to land claimed under or by the United States may come into question, equally with the originals." 101

"The edition of the laws and treaties of the United States, published by Little & Brown, shall be competent evidence of the several public and private acts of Congress, and of the several treaties therein contained, in all the courts of law and equity and of maritime jurisdiction, and in all the tribunals and public offices of the United States, and of the several States, without any further proof or authentication thereof.” 102

"In suits or informations brought, where any seizure is made pursuant to an act providing for or regulating the collection of duties on imports or tonnage, if the property is claimed by any person, the burden of proof shall lie upon such claimant: provided that probable cause is shown for such prosecution, to be judged of by the court." 103

§ 269. Definition and Use of an Affidavit. - An affidavit is a declaration upon oath or affirmation before some persons having competent and lawful power and authority to administer the same. Affidavits are used in a suit in equity in three ways. In certain cases they must be annexed to a bill before it can be properly filed;1 certain documents may be proved by them at the hearing; and they are used in support of interlocutory applications. The manner of their use has been already described. It is unsettled whether the court has power to compel any one to have his affidavit taken, or to cross-examine an affiant,5 except, possibly, by means of a feigned issue.

-

§ 270. Manner of Verifying an Affidavit. - An affidavit must be sworn to; unless the affiant is conscientiously scrupulous of taking an oath, when he may, in lieu thereof, make solemn affirmation of the truth of the facts stated by him.1 If the deponent be blind or unable to read, the affidavit must be read over to him by the officer before whom he swears to its truth.2 An affidavit, if made within the United States, must be verified before a judge of the court in which it is to be used, or a United States commissioner, or a notary public. If made without the United States, it may be verified before any secretary of legation, or consular officer within the limits of his legation, consulate, or com

June 20, 1874, ch. 333, § 8 (18 St. at L. 114); Act of June 7, 1880, Res. 44 (21 St. at L. 308).

108 U. S. R. S. § 909. See also Locke v. United States, 7 Cranch, 339; The Luminary, 8 Wheat. 407; Wood v. United States, 16 Pet. 342; The John Griffin, 15 Wall. 29; Clifton v. United States, 4 How. 242; Taylor v. United States, 3 How. 197; Buckley v. United States, 4 How. 251; Cliquot's Champagne, 3 Wall. 114.

mercial agency; or, perhaps, before any person who, by the laws of the country in which the affidavit is made, is authorized to administer an oath or affirmation.5

§ 271. Title of an Affidavit. An affidavit should be correctly entitled in the cause or matter in which it is made.1 For, otherwise, it is said that the affiant cannot be convicted of perjury if his statements are false.2 But, it seems that, if there are several parties on either side, or both sides, it will be sufficient to entitle it in the name of a single plaintiff and defendant, and after each to insert the word "others" or "another," according to the circumstances of the case.3 The omission of a party's christian name will not be a fatal defect.4 If the affidavit is correctly entitled when made, it can still be used after the title of the cause has been subsequently changed. If an affidavit of service be attached to papers which are themselves correctly entitled, it needs no separate title. An affidavit made or entitled in one cause cannot, it has been held, be used in another; unless, perhaps, when the affiant is dead, insane, imbecile, or beyond the jurisdiction of the court.

§ 272. Form of an Affidavit.

Every affidavit should begin with the venire, that is, the name of the county; and if sworn to elsewhere than in that where the court is held, with the name of the State where it is taken; which is usually followed by the abbreviation Ss. for scilicet, or the English words to wit. Otherwise, it has been held, though not by a Federal court, that it may be disregarded as a nullity, even though the residence of an officer before whom it is sworn appear in the jurat.2 The English rule was that in all affidavits the true place of residence, description, and addition of every person swearing to the same, must be in

4 U. S. R. S. § 1750.

7 Lumbrozo v. White, 1 Dickens, 150;

5 Pinkerton v. The Barnsley Canal Daniell's Ch. Pr. 1774; Milliken v. Selye, Co., 3 Y. & J. 277 n. 3 Denio (N. Y ), 54; Stacy v. Farnham, 2 How. Pr. (N. Y.) 26. But see Barnard v. Heydrick, 49 Barb. (N. Y.) 62, 72; s. c. 2 Abbott's Pr. N. s. (N. Y.) 47; Langston v. Wetherell, 14 Mees. & W.

§ 271. 1 Hawley v. Donnelly, 8 Paige (N. Y.), 415; Stafford v. Brown, 4 Paige (N.Y.), 360. But see Bowman v. Sheldon, 5 Sand. (N. Y.) 657.

2 Hawley v. Donnelly, 8 Paige (N.Y.), 104. 415.

370.

3 White v. Hess, 8 Paige (N. Y.), 544. 4 Maury v. Van Arnum, 1 Hill (N. Y.),

§ 272. 1 Belden v. Devoe, 12 Wendell (N. Y.), 223.

2 Cook v. Staats, 18 Barb. (N.Y.) 407 ; Lane v. Morse, 6 How. Pr. (N. Y.) 394.

5 Hawes v. Bamford, 9 Simons, 653. But see Mosher v. Heydrick, 45 Barb. 6 Anon., 4 Hill (N. Y.), 597.

(N.Y.) 549; s. c. 30 How. Pr. (N.Y.) 161.

serted; unless the affidavits were made by parties in the cause, who might describe themselves, in the affidavit, as the above-named plaintiff, or defendant, without specifying any residence, or addition, or other description. This rule, however, is not always adhered to or insisted upon by practitioners in the courts of the United States. The English rule was that the stating part of the affidavit must be preceded by the statement that the deponent was duly sworn.4 The affidavit should state "sufficient to sustain the case made by the motion or petition of which it is the ground work."5 Its statements must be made with sufficient certainty, and with all necessary circumstances of time, place, manner, and other material incidents. When, however, the affiant deposes to words spoken, the addition "or to that effect" is not improper. Special fulness is required of affidavits of service.8 An affidavit should state facts and not conclusions of law; and must be pertinent, material, and not scandalous.10 The court may, upon examination of the paper, order such matter expunged with costs, to be paid by the party or solicitor seeking to use the same; 11 or a reference may be ordered to determine whether the statements in it are proper.12 A reference can only be demanded upon exceptions in writing similar to those to a pleading; 13 and the filing or reading of affidavits in opposition to such parts of his opponent's affidavits as are excepted to may be construed as a waiver of the exceptions.14 Pending a reference concerning it, an affidavit cannot be used except by leave of the court, which is usually granted only upon terms.1 § 273. Execution of an Affidavit. It is usual, though it seems not indispensable, for the affiant to subscribe his christian name and surname at the foot of the affidavit.1 In England the signature

8 Daniell's Ch. Pr. (2d Am. ed.) 1775. See also Hinde's Pr. 451; Crockett v. Bishton, 2 Madd. 446.

4 Phillips v. Prentice, 2 Hare, 542; Daniell's Ch. Pr. (2d Am. ed.) 1776.

5 Daniell's Ch. Pr. (2d Am. ed.) 1776 ; Hinde's Pr. 451; Van Wyck v. Reid, 10 How. Pr. (N. Y.), 366.

6 Sea Insurance Co. v. Stebbins, 8 Paige (N. Y.), 565; Meach v. Chappell, 8 Paige (N. Y.), 135.

7 Ayliffe v. Murray, 2 Atk. 58, 60.

8 Hinde's Pr. 453.

15

19 Powell v. Kane, 5 Paige (N. Y), 265. 11 Powell v. Kane, 5 Paige (N. Y.), 265; Ex parte Smith, 1 Atk. 139.

12 Daniell's Ch. Pr. (2d Am. ed.) 1777. See § 68.

18 Daniell's Ch. Pr. (2d Am. ed.) 1777. See § 68.

14 Bickford v. Skewes, 8 Simons, 206; Daniell's Ch. Pr. 1777.

15 Pearse v. Brook, 3 Beav. 337; Daniell's Ch. Pr. 1777.

§ 273. 1 Haff v. Spicer, 8 Caines (N. Y.), 190; Jackson er dem. Kenyon v.

9 Powell v. Kane, 5 Paige (N. Y.), 265. Virgil, 3 J.R. (N. Y.) 540; Soule v. Chase,

had to be on the left side of the page; 2 but in this country it is usually at the right. In one case where a marksman had signed with his name at length, his hand having been guided for that purpose, the affidavit was ordered taken off the file. The jurat, which is indispensable, is placed upon the opposite side from the signature. It is usually in substantially the following form: "Sworn to before me this day of 18." If the affiant be blind or a marksman, the jurat should be in substance thus: "Sworn, &c., the whole of the above affidavit having been first read over and explained to the said A. B., who appeared perfectly to understand the same, he made his mark in my presence."4 If the affiant have been previously found by the inquisition of a jury to be an idiot, a lunatic, or imbecile, the officer before whom the affidavit is sworn should state in the jurat that he has examined the deponent for the purpose of ascertaining the state of his mind, and that the latter was apparently of sound mind and capable of understanding the nature and contents of the affidavit.5 The omission of the addition to the officer's signature of his title, and even the omission of his signature, will not, it seems, be a fatal defect. It is usual and more prudent, even if not absolutely essential, for the officer to mark with his initials. all interlineations and erasures in the body of the affidavit.8 § 274. Competency of Witnesses. The testimony of witnesses may be taken either solely for use in the court taking the same, or for use in other courts as well. The same rules as to competency prevail at law and in equity. The Revised Statutes provide that, "in the courts of the United States, no witness shall be excluded in any action on account of color, or in any civil action because he is a party or interested in the issue tried : provided, that in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other, as to any transaction with, or statement by, the testator,

1 Robertson (N. Y.), 222. But see Laimbeer v. Allen, 2 Sand. (N. Y.) 648.

2 Daniell's Ch. Pr. (2d Am. ed.) 1778. 8 -v. Christopher, 11 Simons, 409. 4 Daniell's Ch. Pr. (2d Am. ed.) 1776; Matter of Christie, 5 Paige (N. Y.), 242. 5 Matter of Christie, 5 Paige (N. Y.), 242.

6 Hunter v. Le Conte, 6 Cowen (N. Y.),