statute an affidavit may be sworn to before any official authorized to administer oaths. When, however, a statute authorizes certain officials to administer oaths, an affidavit not sworn to before that official is invalid and may be disregarded.2

As a general rule affidavits which are sworn to before the attorney of the party are not competent though the attorney may be otherwise authorized as a notary to take affidavits.3 But this rule is not without exceptions; and generally an affidavit may be taken by the partner of the attorney if the latter is not also the attorney of the party.

§ 357. Formal requisites of affidavits.-The affidavits should be accurately entitled, though as a general rule, when the affidavit can be otherwise identified, a mistake in this respect or the absence of a caption or a title will be disregarded." If the venue is stated in the affidavit it is immaterial that it does not appear appended to the signature of the notary; for

Weatherwax v. Paine, 2 Mich. 555; Rutledge v. Stribling, 26 Ill. App. 453; Willis v. Lyman, 22 Tex. 268; Wallace v. Byrne, 17 La. Ann. 8. Contra, Simpson v. McCarthy, 78 Cal. 175. The affidavit of a corporation should be made by its chief official having a competent knowledge of the facts. Ex parte Sergeant, 17 Vt. 425.

1 Cassidy v. Meyers, 64 Miss. 510; Young v. Rollins, 78 N. C. 485.

2 Haight v. Proprietors, 4 Wash. C. C. 601, 606; Irving v. Edrington, 41 La. Ann. 671; United States v. Bailey, 9 Pet. (U. S.) 238; Stanton v. Ellis, 16 Barb. (N. Y.) 319; Benedict v. Hall, 76 N. C. 113; Love v. McAlister, 42 Ark. 183; Roberts v. Railroad Co., 1 Brew. (Pa.) 538.

8

Cf. Linck v. Litchfield (Ill., 1893), 31
N. E. Rep. 123.

4 Reavis v. Cowell, 56 Cal. 588; Young v. Young, 18 Minn. 90; Ryburn v. Moore, 72 Tex. 85; Daws v. Glasgow, 1 Pin. (Wis.) 171.

5 Northumberland v. Todd, L. R. 7 Ch. Div. 777.

6 Baxter v. Seaman, 1 How. (N. Y.) 51; Humphrey v. Caude, 2 Cow. (N. Y.) 509.

7 Harris v. Lester, 80 Ill. 207; Beebe v. Morrell, 76 Mich. 114; Maury v. Van Arnum, 1 Hill (N. Y.), 370; Hawley v. Donnelly, 8 Paige (N. Y.), 415; Minzenheimer v. Heinze, 74 Tex. 254.

8 Thompson v. Burhans, 61 N. Y. 52; Cook v. Staats, 18 Barb. (N. Y.) 407.

9 Smith v. Runnells, 94 Mich. 617; State v. Can. Pac. Ry. Co., 17 Nev. 239. But the venue must appear somewhere on the face of the affidavit. People v. Canvassers, 20 N. Y.

3 Pullen v. Pullen (N. J., 1889), 17 Atl. Rep. 310; Taylor v. Hatch, 12 Johns. 340; Toorle v. Smith, 34 Kan. 27; Swearingen v. Hawser, 37 Kan. 126; Vary v. Godfrey, 6 Cow. 587; Willard v. Judd, 15 Johns. 531; S. 329. Hammond v. Freeman, 9 Ark. 62.

though without a venue stated the affidavit is void as such,1 yet in a prosecution for perjury, committed in swearing to the affidavit, the absence of the venue is immaterial, as time and place may be shown orally. A signature is indispensable to the validity of the affidavit only when it is required by statute or by a rule of court; but an unsigned affidavit will sustain a prosecution for perjury, the gist of the crime being the false swearing. The jurat must state that it was sworn to or affirmed before the proper official,5 and it must generally be subscribed by him, and should be authenticated by his official seal, unless it is to be used in the county in which he resides.8

6

3

But generally the courts are disposed to exercise a wise discretion in allowing amendments of technical defects, and sometimes of those which are material as well.10

1 Cook v. Staats, 18 Barb. (N. Y.) 407; Laue v. Morse, 6 How. (N. Y.) 394.

2 Reavis v. Cowell, 56 Cal. 558; Young v. Young, 18 Minn. 90; Parker v. Baker, 8 Paige (N. Y.), 428.

3 Haff v. Spicer, 3 Paige (N. Y.), 190; Norton v. Hauge, 47 Minn. 105; Shelton v. Berry, 19 Tex. 154; Alford v. McCormac, 90 N. C. 151; Gill v. Ward, 23 Ark. 16; Bates v. Robinson, 8 Iowa, 318; Hargadine v. Van Horn, 72 Mo. 370; Nave v. Ritter, 41 Ind. 301.

4 See cases in last note.

5 State v. Green, 15 N. J. L. 88: Palmer v. McCarthy (Colo., 1893), 31 Pac. Rep. 241; Ladow v. Groom, 1 Denio (N. Y.), 429; Morris v. State, 2 Tex. App. 502.

6 Cantwell v. State, 27 Ind. 505; McDermaid v. Russell, 41 Ill. 490; State v. Richardson, 34 Minn. 118; Davis v. Rich, 2 How. (N. Y.) 86; State v. Green, 15 N. J. Law, 88. That the official omits to state his official title is immaterial. People v. Van Rensselaer, 6 Wend. (N. Y.) 543; Hunter v. Leconte, 6 Cow. (N. Y.) 728.

7 Chase v. Street, 10 Iowa, 593.

Stout v. Slattery, 12 Ill. 162; Clemens v. Bullen (Mass., 1893), 34 N. E. Rep. 173; Mountjoy v. State, 78 Ind. 172. Cf. Coward v. Dillinger, 56 Md. 59. "If an oath was administered by a proper officer the law was satisfied, and the mere omission of a clerk to put his name to an act which was done through him as an instrument should not prejudice an innocent party." The court, in Kruse v. Wilson, 79 Ill. 233.

9 Rosenberg v. Claflin (Ala., 1893), 10 S. Rep. 521; Stacy v. Farnham, 2 How. (N. Y.) 26; Watts v. Womack, 44 Ala. 605.

10 Cutler v. Rathbone, 1 Hill, 205 (affidavit of hearsay); Hardin v. Lee, 51 Mo. 241; Kruse v. Wilson, 79 Ill. 233; Jones v. Slate Co., 16 How. (N. Y.) 129; Salmon v. Mills, 4 U. S. App. 101; 1 C. C. A. 278. Cf. Freer v. White (Mich., 1893), 51 N, W. Rep. 807; Brookmire v. Rosa (Neb., 1890), 51 N. W. Rep. 840; Sheldon v. Kivett, 110 N. C. 408. That an affidavit may be filed or a jurat added nunc pro tunc, see Will

§ 358. Language of the affidavit.- The terms in which the affidavit is expressed must be certain, positive and unambiguous. The affiant must swear to a definite thing, though an affidavit will not be construed in a technical spirit if in the main it substantiates the party's case. Still it may be said that where an affidavit is required to be made by statute the requirements of the statute must be complied with, and in such a case a strict adherence to the language of the statute is the only safe course for the party to pursue in order to render the affidavit valid. Scandalous matter may vitiate an affidavit,* but the fact that an affidavit is a translation," or that it was sworn to in a foreign language which was not understood by the affiant, will not render it invalid, provided it was properly translated to him. Where a statute permits the affiant to amend his affidavit he may amend at any time. He need not wait until it is pronounced defective.

iams v. Stevenson, 103 Ind. 243. "Oral evidence given on affidavit must be confined to such facts as the witness is able of his own knowledge to prove except on interlocutory motions, on which statements as to his belief and the grounds thereof may be admitted. The costs of every affidavit unnecessarily setting forth matters of hearsay or argumentative matter, or copies of or extracts from documents, must be paid by the party filing them." Stephen's Dig., art. 125.

1 Boulter v. Behrend, 20 D. C. 567; Cosmer's Adm'r v. Smith, 15 S. E. Rep. 977; 36 W. Va. 788; Johnson v. Buckel, 20 N. Y. S. 566; 65 Hun, 601; Hitnier v. Boutclies, 67 Hun, 203; Irvin v. Howard, 37 Ga. 23; Dunnenbaum v. Schram, 59 Tex. 281; Winters v. Pearson, 72 Cal. 553; Parsons v. Stockbridge, 42 Ind. 121; Burnett v. McCluey (Mo., 1888), 4 S. W. Rep. 694; Carleton v. Carleton, 85 N. Y. 313; Thompson v. Judge, 54 Mich. 237.

2 Altmeyer v. Caulfield, 37 W. Va. 847; Haight v. Arnold, 48 Mich. 512; Filer, etc. Co. v. Sohns, 63 Wis. 118; Wirt v. Dinan, 44 Mo. App. 583; Baumgartner v. Mfg. Co. (Minn., 1893), 52 N. W. Rep. 964; Hinzie v. Moody, 1 Tex. Civ. App. 26; Hall v. Kintz, 13 Pa. Co. Ct. Rep. 24; Bigelow v. Chatterton, 10 U. S. App.

267.

3 Carleton v. Carleton, 85 N. Y. 313; Pearce v. Hawkins, 62 Tex. 435; Ilett v. Collins, 102 Ill. 402; Mathews v. Sharp, 99 Pa. St. 560; Miller v. Munson, 34 Wis. 579; Blum v. Davis, 56 Tex. 426.

4 Balls v. Smith, 2 M. & G. 350; Opdyke v. Marble, 18 Abb. Pr. 375. 5 In re Eady, 6 Dowl. Pr. Cas. 615. 6 Bose v. Solliers, 6 Dow. & Ry. 514; Marzetti v. Du Jouffray, 1 Dowl. Pr. Cas. 41.

7 Musgrove v. Mott, 90 Mo. 107; 2 S. W. Rep. 214; Fortenheim v Claflin, 47 Ark. 49.

§ 359. Definition and character of depositions.-"A deposition is evidence given under interrogatories, oral or written, and usually written down by an official person." Depositions may be offered as evidence in all cases where a non-resident witness refuses or is unable to attend court, or where a witness who is resident within the jurisdiction is so ill or feeble that he cannot appear in court. The usefulness of this mode of procuring evidence was first recognized in courts of admiralty, where it is of particular value because of the difficulty of obtaining the presence of mariners, who are usually transient in their habits of living and places of abode.

The practice of taking depositions has been universally adopted in other tribunals of justice, and it is now almost wholly regulated by statutes, which should be consulted in every case. Under these statutes, and as a matter of practice, in their absence the party who wishes to secure the testimony of an absent witness applies to the court to issue a letter rogatory, which is in form a writ issued under the seal of the court directed to a court of superior jurisdiction located in the state or country in which the foreign witness resides, and requesting the latter court in furtherance of justice, and out of international comity, to cause the evidence of the witness named therein to be procured according to its customary mode of procedure, to have the same committed to writing and returned to the court issuing the letter.

Interrogatories framed by the parties are forwarded with the letter, and these, with the original answers thereto, signed by and verified with the oath of the witness and duly authenticated, are returned to the court in which the deposition is to be used. Under certain circumstances the witness

1 Stimpson v. Brooks, 3 Blatch. subsequent introduction of the evi(U. S.) 456. dence of witnesses who are disqualified, see ante, §§ 120-124.

2 People v. Lundquist, 84 Cal. 23; People v. Thompson, 84 id. 598. Where a physician testifies that though an infirm and sick witness was able to attend court, yet she should not be compelled to do so, her deposition will be taken. Norris v. Norris, 3 Ind. App. 500. See, also, ante, §§ 282, 283, 288. As to the

3 Blakelee v. Dye (Colo., 1893), 27 Pac. Rep. 881.

4 Hemenway v. Knudsen, 67 Hun, 648; Fry v. Man. Trust Co., 23 Civ. Pro. R. 520; Hobart v. Jones, 5 Wash. St. 385; Stierle v. Kaiser (La., 1893), 12 S. Rep. 839. The interrogatories should not be leading

may be examined viva voce without written interrogatories or the two methods of examination may be combined.1

--

§ 360. Mode of procuring depositions. The details of the law governing the taking of depositions are largely regulated by statutes which, while differing in minor points, are upon the whole substantially alike. By the federal statute the commission may issue to a judge of a federal court, or of a superior state court, or county court, court of common pleas, or to a mayor or chief magistrate of a city. The adverse party is entitled to reasonable notice personally served on him or his attorney, and has the absolute right to be present and to crossexamine the witness; and a failure to notify him, or a notice received when he is elsewhere taking another deposition in the case, will render the deposition inadmissible. The witness should be duly sworn in the precise mode which is prescribed by the statute, if any, and the examining magistrate's failure to state the fact that he was so sworn will render the deposition inadmissible. 8

5

The deposition when completed with a proper certificate of

(Lott v. King, 79 Tex. 292), nor immaterial (In re Allis, 44 Fed. Rep. 216), nor call upon the witness to speak from hearsay. Gilpin v. Daly, 58 Hun, 610.

1 Laidley v. Rogers, 67 Hun, 653; 23 Civ. Pro. R. 110; 1 Greenl. on Ev., § 320; Pole v. Rogers, 3 Bing. N. C. 780. Cf. Nevitt v. Crow (Cal., 1892), 29 Pac. Rep. 749. See as to "open commissions in New York, Code C. P., SS 893, 894, 897 et seq.; Jones v. Hoyt, 10 Abb. N. C. 324; 63 How. Pr. 94; Heney v. Weed, 4 Law Bul. (N. Y.) 10; Jennison v. Citizens' Sav. Bank, 85 N. Y. 546; Whitney v. Wyncoop, 4 Abb. Pr. (N. Y.) 370; Dwinnelle v. Howland, 1 Abb. Pr. (N. Y.) 87 (return of commission).

2 U. S. R. S., SS 863-875; Bibb v. Allen, 149 U. S. 481.

3 Cole v. Hall, 131 Mass. 88; Vawter v. Hulse, 112 Mo. 633; Carrington v. Stimpson, 1 Curt. C. C. 437.

4 Sinsheimer v. Skinner, 43 Ill. App. 608; Goodhue v. Bartlett, 5 McLean, 186. The reasonableness of the notice will depend upon the circumstances of each case, among which are the distance of the foreign witness from the court and the facility with which he may be found. Sing Cheong Co. v. Yung Wing, 59 Conn. 535; Harris' Appeal (Conn., 1891), 20 Atl. Rep. 617.

5 Uble v. Burnham, 44 Fed. Rep. 792; Latham v. Latham, 30 Gratt. 307; Collins v. Richart, 14 Bush (Ky.), 621.

6 See, also, Atchison, etc. Co. v. Sage, 49 Kan. 524; Crabb v. Orth (Ind., 1893), 32 N. E. Rep. 711.

7 Bacon v. Bacon, 33 Wis. 147.

8 Parsons v. Huff, 38 Me. 147; West. U. Tel. Co. v. Collins, 45 Kan. 88; Gulf City Ins. Co. v. Stephens, 51 Ala. 121; Horne v. Haverhill, 113 Mass. 344; Bush v. Barron, 78 Tex. 5 (signature).