AFFIDAVIT. A statement or declaration reduced to writing, and sworn to or affirmed before some officer who has authority to ad , minister an oath or affirmation. Quoted and approved in Shelton v. Berry, 19 Tex. 154, 70 Am. Dec. 326.
It differs from a deposition in this, that in the lat ter the opposite party has an opportunity to cross examine the witness, whereas an affidavit is always taken ex parte; Gresley, Eq. Ev. 413 ; Stimpson v. Brooks, 3 Blatch. 456, Fed. Cas. No. 13,454.
An affidavit includes the oath, and may show what facts the affiant swore to, and thus be available as an oath, although un available as an affidavit ; Burns v. Doyle, 28 Wis. 460.
3y general practice, affidavits are allow able to present evidence upon the hearing of a motion, although the motion may in 1 volVe the very merits of the action; but they are not allowable to present evidence on the trial of an issue raised by the plead ings. Here the witnesses must be produced before the adverse party. They are gener ally required on all motions to open defaults or to grant delay in the proceedings and in other applications by the parties addressed to the favor of the court.
Formal parts.—An affidavit must intelli gibly refer to the cause in which it is made. The strict rule of the common law is that it must contain the exact title of the cause. This, however, is not absolutely essential; Harris v. Lester, 80 Ill. 307. If not entitled in the cause it cannot be considered in op position to a motion for preliminary injunc tion ; Goldstein v. Whelan, 62 Fed. 124.
The place where the affidavit is taken must be stated, to show that it was taken within the officer's jurisdiction; 1 Barb. Ch. Pr. 601; if the officer in signing the jurat fails to add the name of the county for which he is appointed, if it already appears in the caption, it will not be defective; Smith v. Runnells, 94 Mich. 617, 54 N. W. 375. The deponent must sign the affidavit at the end; Hathaway v. Scott, 11 Paige Ch. (N. Y.) 173. The jurat must be signed by the officer with the addition of his official title. In the case of some officers the statutes conferring au thority to take affidavits require also his seal to be affixed.
In the absence of a rule of court or statute requiring it, if affiant's name appears in an affidavit as the person who took the oath, the subscription to it by affiant is not nec essary; Norton v. Hauge, 47 Minn. 405,
N. W. 368 ; Shelton v. Berry, 19 Tex. 154, 70 Am. Dec. 326, or if his name is omitted in the body of the it is properly signed, it is sufficient ; Cunningham v. Doyle, 5 Misc. Rep. 219, 25 N. Y. Supp. 476. If the notary fails to attach his seal to an affidavit of an assignee in insolvency, it is not void ; Clement v. Bullens, 159 Mass. 193, 34 N. E. 173 ; if he omits to add his name in the jurat in an affidavit for a writ of certiorari, the court may permit it to be done nunc pro tune; State v. Cordes, 87 Wis. 373, 58 N. W. 771; if he omits to add his title it is not invalid ; Jackman v. Gloucester, 143 Mass. 380, 9 N. B. 740.
In an affidavit which is to be the basis of judicial action the nature and quality and perhaps the source of information must be set forth, so that the court may be able to ascertain whether the party is right in en tertaining the belief to which he deposes; Whitlock v. Roth, 10 Barb. (N. Y.) 78.
A "denial upon information and belief, without stating the sources- of information and belief, can have no weight as against the appellant's positive affidavit as to what is still due him"; Harris v. Taylor, 35 App. Div. 462, 54 N. Y. Supp. 864. So-called evi dence on information and belief "ought not to be looked at at all, not only unless the court can ascertain the sources of the infor mation and belief, but also unless the de ponent's statements are corroborated by someone who speaks from his own knowl edge" ; [1900] 2 Ch. 753. Such an affidavit should show that the persons from whom the information is obtained are absent or that their deposition cannot be obtained; Steuben County Bank v. Alberger, 78 N. Y. 252.
In general, an affidavit must describe the deponent sufficiently to show that he is en titled to offer it; for example, that he is a party, or agent or attorney of a party, to the proceeding ; Ex parte Bank of Monroe, 7 Hill (N. Y.) 177, 42 Am. Dec. 61; Cunning ham v. Goelet, 4 Denio (N. Y.) 71; Ex parte Shumway, id. 258, and this matter must be stated, not by way of recital or as mere de scription, but as an allegation in the affi davit; Staples v. Fairchild, 3 N. Y. 41; Payne v. Young, 8 N. Y. 158.
See JURAT.