Talk:Affidavit

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From an old 1911 Encyclopedia. Needs to be edited, updated and merged with the main Affidavit article.

Affidavit (Med. Lat. for he has declared upon oath, from affidare, fides, faith), a written statement sworn or affirmed to before some person who has authority to administer an oath or affirmation. Evidence is chiefly taken by means of affidavits in the Chancery Division of the High Court of Justice in England on a petition, summons or motion. Interlocutory proceedings before trial are conducted by affidavits, e.g. for discovery of documents, hence called affidavit of documents. Affidavits are sometimes necessary as certificates that certain formalities have been duly and legally performed (such as service of proceedings, &c.). They are extensively used in bankruptcy practice, in the administration of the revenue and in the inferior and county courts. In testamentary causes, all documents of any kind, such as wills, codicils, drafts or instructions of same must be filed in the form of affidavits (termed affidavits of scripts.) In Scotland the testimony of witnesses by affidavit is almost unknown, except in a few non-contentious cases as prima facie evidence. In the rules of the Supreme Court (R.S.C. Ord. Xxxviii.) certain formal requirements are laid down for all affidavits and affirmations in causes or matters depending in the High Court. An affidavit must consist of title, body or statement and jurat. It must be written or printed on foolscap, bookwise, in the first person; give correctly the names of the parties to the action; and the description and true place of abode of the deponent. An affidavit is confined, except on interlocutory motions, to such facts as the witness is able of his own knowledge to prove. The signature of the deponent must be written opposite to the jurat, which must contain the place, date and time of swearing, and this signed by the officer or magistrate before whom the affidavit is sworn. An affidavit sworn on a Sunday is not invalid. Quakers, Moravians and Separatists were first privileged to make a solemn declaration or affirmation, and by the Common Law Procedure Act 1852 and other statutes all persons prevented by religious belief from taking an oath were allowed to affirm; and, finally, by the Oaths Act 1888, every person who objects to be sworn is allowed to affirm in all places and for all purposes where an oath is required by law. By an act of 1835 justices are permitted to take affidavits in any matter by declaration, and a person making a false affidavit in this way is liable to punishment. The same act prohibited justices of peace from administering oaths in any matter in which they had not jurisdiction as judges, except when an oath was specially authorized by statute, as in the bankruptcy law, and excepting criminal inquiries, parliamentary proceedings and instances where oaths are required to give validity to documents abroad. Scottish justices can act in England and vice versa. The Oaths Act 1888 and the Commissioner of Oaths Act 1889 consolidated all previous enactments relating to oaths and gave the lord chancellor power to appoint commissioners for oaths to take affidavits for all purposes (see Oath.) Under the Debtors Act 1869 a plaintiff may file an affidavit for the arrest of a debtor (affidavit to hold to bail) when the debt amounts to L. 50 or upwards, where it can be shown that the debtor's absence from the kingdom would materially prejudice the prosecution of the action.

Affidavits may be made abroad before any British ambassador, envoy, minister, charge d'affaires, secretary of embassy or legation, consul or consular agent.

In the United States affidavit has the same meaning as in England and its general uses are the same, but it is not substituted for oral evidence in court to anything like the extent to which that is done in the English courts of chancery. The statutes of each state designate the persons before whom affidavits may be made outside the state, and special commissioners are appointed for that purpose by each state. Affidavits made abroad must be made before such commissioners or persons so designated, who are usually diplomatic and consular officials, justices, notaries public or mayors. Affidavit of documents is not generally used in the United States; discovery is procured by motion.

The use of the above article in relation to how affidavits are used in the courts of England and Wales would be highly misleading. I propose that it is not incorporated into the article. Although the way in which affidavits are sworn is correct, the use described is almost redundant since the implementation of the Civil Procedure Rules in 1998. There are still a limited number of applications where an affidavit must be used. These include applications for freezing injunctions and search orders and before the introduction of the CPR they were used for placing evidence before the court in final matters, especially in the chancery court, but this function has largely been replaced by the use of witness statements. A witness statement is very similar except it is not a sworn statement and does not need to be attested to by a commissioner of oaths. The witness simply signs a statement of truth at the end of the witness statement. It is the usual practice of the civil courts in England and Wales for the witness statement to stand as evidence-in-chief and only calling live witnesses for cross-examination.

See also : Affidavit

External link

the link doesn't really contain any affidavits and is just a legal form web page. I see no reason it should be here and will delete it if no one can give a good reasion it should be kept (other than it was helpful)Harlock jds 22:03, 12 April 2007 (UTC)

looking at the user lawpro's editing history he seems to be adding this link to promote the website. I'm going to go ahead and delete it (as it has been deleted from many other pages it has been added to for the same reason) Harlock jds 22:13, 12 April 2007 (UTC)

Where else have you found that site linked from? I can't find any other pages that had anything from lawpro (there isn't even a userpage for it), or the site in question, linked from it? In any event, I have found that page extremely useful over the last few months. I'm a paralegal, and finding affidavits and other legal forms linked from one site is helpful. I don't know what other reason a site is added to the external links section of a page on Wikipedia other than it is helpful in context to the article's content. Isn't that what they should be? I'm putting it back on here until someone can tell me why a site that actually points users to the affidavits for every state isn't helpful. --I changed the text of the link to better reflect what it really points to, let me know.

see http://en.wikipedia.org/wiki/Special:Contributions/Lawpro for lawpro's contributions (which are mostly that link) and http://en.wikipedia.org/wiki/User_talk:Lawpro to see him be warned for spam. additionally reference Wikipedia:External links (the page in question violates at least 3,5 and 13) and i can find little to no information about affidavits on the page (or many of the pages it links to. This is how i first found the problem because i was looking for information). I think the reason you don't find this link on the other pages is because it's been deleted because it's not something suitable for wikipedia. Harlock jds 19:33, 23 April 2007 (UTC)

I moderately agree with numbers 3 and 13 on that page, but not #5. I really don't see it as an 'objectionable amounts of advertising'. But, that's just me. Anyone else have anything to say about this?

5 is debateable (i consider it a lot but others may not) but 3 and 13 alone are enoughHarlock jds 19:44, 24 April 2007 (UTC)

A note on the part of the page that deals with affidavits sworn in Ireland, it says that they are not signed by the deponent. I work in a law office in Ireland and have never seen an affidavit used that was not signed by the deponent. Perhaps there are instances where they need not be signed, but the vast majority are signed by the deponent and witnessed by a Commissioner for Oaths, Peace Commissioner or Practising Solicitor. — Preceding unsigned comment added by 86.47.157.57 (talk) 16:39, 15 November 2011 (UTC)

England and Wales

The ONLY mention of England (and Wales) is in the section on Ireland: "Affidavits are made in a similar way as to England and Wales..." which would be an awful lot more helpful if the article explicitly covered what the situation was in England and Wales, rather than leaving readers to guess. DrArsenal (talk) 23:39, 3 February 2016 (UTC)

Australian issues

The section about "Australia" cites United States law as the reference... I think some edits ought to be made. :) 2601:C2:8406:33A9:C9DD:77F3:2D6F:9297 (talk) 02:54, 18 April 2016 (UTC)

I should also note that its not clear if the ruling about the ACT law only applies to Canbera (ACT) , federal law, or applies to all the states. 49.255.218.102 (talk) 07:27, 14 August 2017 (UTC)