Affidavit

“ It cannot be made without notice, to any other judge, justice or term, unless the applicant produces proof, by affidavit, that, by reason of the absence or other disability of the judge or justice [Pg 152] who granted the order, the application cannot be made to him; and that the applicant will be exposed to great injury, by the delay required for an application upon notice. The affidavit must be filed with the clerk; and a copy thereof, and of the order vacating or modifying the injunction order, must be served upon the plaintiff's attorney, before that order takes effect. ”

“ Williams fumbled among his papers for a moment and drew forth an affidavit.
“Perhaps we can save time with your aid. This is rather a large transaction for me, so I have to go slowly. You will have no objection to signing this affidavit of identification—will you, Mr. Stein?”
The attorney adjusted his glasses.
“It’s not necessary, Sir,” he remarked, merely glancing at the paper and handing it back.—“It’s not at all necessary. There is already sufficient evidence to satisfy any reasonable man and we are not obliged to satisfy you. ”

“ There is avowedly nothing like personal notice to the parties interested as defendants; they are not even named; and the right of the plaintiff depends entirely upon the fact, to be proved by affidavit, that the owners are unknown.' The Chief Justice, after showing the insufficiency, by proof of the affidavit, according to the requisition of the statute, says: 'The record then states, that at a subsequent day the plaintiffs appear, by their attorney, and the parties unknown being solemnly demanded, come not, but make default. ”

“ The shortcomings of the affidavit when measured against § 2511 (3) are patent. Indeed, the United States, in oral argument, conceded no less. The specific inquiry put to Government counsel was: "Do you think the affidavit, standing alone, satisfies the Safe Streets Act?" The Assistant Attorney General answered "No, sir. We do not rely upon the affidavit itself. . . ." Tr. of Oral Arg. 15. [4]
Government counsel, however, seek to save their case by reference to the in camera exhibit submitted to the [p342] District Court to supplement the Attorney General's affidavit. ”

“ It will be perceived that the rule to show cause, which was served upon the petitioner, contained a definite charge of a very heinous offence, and that an opportunity was given to him to meet it and to exonerate himself if he could do so. It would, undoubtedly, have been more regular to have required the charge to be made by affidavit, and to have had a copy thereof served (with the rule) upon the petitioner. But the circumstances of the case, as shown by the return of the judge, seem to us to have been sufficient to authorize the issuing of the rule without such an affidavit. ”

“ This charge is grounded on the fact of a refusal to postpone the trial on an affidavit. That the Court acted correctly in this instance will appear from this consideration. Nothing is more clear than that, under the common law, all applications for a continuance, on affidavit, are founded on the discretion of the Court. Is it not wonderfully singular that there should have been an application founded on an affidavit, if the law of Virginia, as stated in the 6th article, applied to the case? One thing is clear: either that the Attorney-General and Mr. ”

“ If his own affidavit cannot be received, the loss of a written contract, the contents of which are well known to others, or a copy of which can be proved, would amount to a complete loss of his rights, at least in a court of law. The objection to receiving the affidavit of the party is, that no man can be a witness in his own cause. ”

“ Having persons make affidavit to statements of this nature does not strengthen them in any way, since the law permits persons to repudiate affidavits without constituting perjury, so long as the affidavit or statement has not been given in any judicial proceeding. ”

“ In the first place, only errors apparent on the record can be considered; and an affidavit filed for use on a motion is not part of the record, any more than the deposition of a witness used on the trial, and only becomes a part of the record by being incorporated in a bill of exceptions. ”

“ IV. The Common Pleas erred in afterwards receiving (on the 1st of October) an affidavit of the plaintiff, reducing his demand below $500, and thereupon denying (on the 6th of October) the motion for removal, because,
1. It is only where property, and not damages, is the matter in dispute, that the court, for the purpose of determining the amount, looks at any evidence beyond the declaration. In such a case, the court will receive affidavits, in order to ascertain the value. ”

“ Such being the case, I see no way to avoid the conclusion of the majority below: 'If hearsay evidence is to be relied upon in the preparation of an affidavit for a search warrant, the officer or attorney preparing such an affidavit should keep in mind that hearsay statements are only as credible as their source and only as strong as their corroboration. And where the source of the information is in doubt and the corroboration by the affiant is unclear, the affidavit is insufficient.' Id., at 869-870. ”

“ Questions which do not involve the matter in controversy, but matters auxiliary to the trial, which facilitate the preparation for it, often depend on the oath of the party. An affidavit of the materiality of a witness, for the purpose of obtaining a continuance, or a commission to take a deposition, or an affidavit of his inability to attned, is usually made by the party, and received without objection. ”

“ The material fact upon which, according to the laws of that state, the jurisdiction of the Virginia court depended, was the nonresidence of the defendant. The Code required (§ 3230) that this fact should appear by affidavit. The affidavit in question set forth the fact; the circumstance that it was averred on information and belief affected merely the degree of proof. ”

“ Your affidavit states, that, since the time of your conviction, there have been publications reflecting on your character. The Court does not approve of any misconduct in any one, and, however the natural indignation of the public may be called forth by the enormities which you have committed, the Court would of course apportion such punishment to any parties justly complained of, as the nature of the case, under all the circumstances, might demand. ”

“ An affidavit has been filed to the effect that the appellees were not served with a citation, nor with a notice of an application for the allowance of an appeal, until after the expiration of 60 days, Sundays exclusive, from the time of the rendition of the decree appealed from. In the same affidavit it is stated, however, that the proctor of the appellees was informed that an appeal-bond had been presented to the circuit court for approval within the 60 days. ”

“ And the court finds that the grounds of attachment are well taken and true in effect, and the defendant, having failed to deny same, it is ordered by the court, considered and adjudged that the attachment herein be sustained.'
The record shows only one affidavit and bond, but it is contended by plaintiff in error that, even if it be considered necessary that another affidavit and bond should have been filed to justify the alias writ, it must be presumed that they were filed, in the absence of evidence to the contrary; that the mere silence of the record is sufficient. ”

“ His testimony was also corroborated by that of his managing clerk, who also swore that it was in the hand writing of one of the clerks in the office, and that he had no doubt it was a copy of the affidavit which was served with the order to show cause. The fact that the paper offered in evidence was served as a copy of the affidavit with the order to show cause in this same suit was sufficient evidence of its authenticity to enable it to be read against the defendant, who made use of it to obtain the order. Insurance Co. v. Newton, 22 Wall. 32; Richelieu & O. Nav. Co. ”

“ If, indeed, the principal might always withdraw himself from the view of the Court, and shelter his pretensions behind the affidavit of an innocent or ignorant agent, there would be no end to the impositions practised upon the Court. The Court expects, in proper cases, something more than the mere formal test affidavit of an agent, who may swear truly, and yet, from his want of knowledge, be the dupe of cunning and fraud. ”

“ When you make an affidavit, what do you do? When you make an affidavit of how many horses it will take, you take into consideration the length of the term, three or four years. You take into consideration the life of a horse. You take into consideration the roads and the weather. You take into consideration every risk, and find it is only a matter of judgment, only a matter of opinion, and the fact that men differ as to their judgment upon those points accounts for the fact that they make different affidavits. ”

“ We think the affidavit has probative value and should be admitted by the Tribunal under the pertinent provision of the Charter, which says that you will accept in evidence any evidence having probative value. We think it would be unfair to require us to bring here as a witness a man who would certainly be a hostile witness, who is to us a member of this conspiracy, and it seems to us that the affidavit should be admitted with leave to the defendants, if they wish, to call the author of the affidavit as their witness. ”

“ In that appearance and affidavit the petition in intervention, filed in the circuit court of the United States, is set forth in full, as well as certain affidavits which were filed. We papers, because they are not in the record, papers, because they are not in the record, as the same has been certified to us from the circuit court of appeals as the one upon which it acted, and declined to issue the writ of mandamus. ”

“ Discovery is of two kinds, namely, by interrogatories and by affidavit of documents, provision being also made for the production and inspection of documents. Where a party to a suit can make an affidavit stating that in his belief certain specified documents are or have been in the possession of some other party, the court may make an order that such party state on affidavit whether he has or ever had any of those documents in his possession, or if he has parted with them or what has become of them. ”

“ But the authorities and practice have uniformly held that the filing of a bill is the commencement of suit for most purposes, and we can see no reason for adopting any exceptional rule in such cases as the present. An affidavit can always be made in a cause as soon as the bill is filed, and sometimes becomes necessary to support an order for the appearance of an absentee. A notice of lis pendens may always be filed at once, and it would lead to very serious mischief if a failure to serve process at once on a defendant could nullify the effect of such filing. ”

“ The affidavit for seizure is made by the special agent of the general land-office, who swears that, 'to the best of his knowledge, information, and belief,' the property sued for is the property of the United States. The statute authorizes the affidavit to be made by 'the plaintiff, his agent or attorney.' The making of an affidavit by an agent or attorney necessarily implies that he may not be able to make it on positive knowledge ”

“ The majority are of opinion that inasmuch as the statute requires, for an order of publication, that certain facts shall appear by affidavit to the satisfaction of the court or judge, defects in such affidavit can only be taken advantage of on appeal, or by some other direct proceeding, and cannot be urged to impeach the judgment collaterally. ”

“ The facts to be proved are (1) cultivation of and residence upon the land and (2) nonalienation and allegiance; the means of proof of the first being two credible witnesses; of the second, affidavit of the claimant. In other words, the section is not only explicit as to what is to be proved, but in what manner proved; and what is required of the claimant himself, to wit, an affidavit, is distinguished from what he must establish by others, to wit, two credible witnesses. Such, then, are the conditions seemingly legislatively made the exact measure of the obligation of the homestead claimant. ”

“ The witness also swore that she did not discover the alterations when she verified the affidavit in the probate court, wherein she averred the authenticity of the documents, though she read the papers carefully at the time she made the affidavit, which latter statement, however, was subsequently qualified on cross-examination by the statement that perhaps she had not read them as carefully as she ought to have done. ”

“ In all other cases, within the broad compass of the common or statute law of Great Britain or of this country, a party litigant may give evidence pertaining to the suit. In some cases, he may give evidence on the merits; in all cases, he may make affidavit on interlocutory matters. A man who has been in the state prison, a felon scarred with crime, may still make affidavit, in his own case, under certain circumstances, though he can testify neither for nor against any other person. But an alleged fugitive can make oath to no fact, and under no circumstances, for delay or other cause. ”

“ If the statute demands inquiry into the sufficiency of the complaint, or, still less, the plaintiff's good-faith belief that the complaint is sufficient, requirement of a complaint and a factual affidavit would permit a court to make these minimal determinations. But neither inquiry adequately reduces the risk of erroneous deprivation. ”