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AFFIDAVIT
A written statement of facts voluntarily made by an affiant under an oath or
affirmation administered by a person authorizedto do so by law.
DISTINCTIONS
An affidavit is voluntarily made without any cross-examination of the affiant
and, therefore, is not the same as a deposition,a record of an examination of
a witness or a party made either voluntarily or pursuant to a subpoena, as if
the party weretestifying in court under cross-examination. A pleadinga req
uest to a court to exercise its judicial power in favor of a partythat contains al
legations or conclusions of facts that are not necessarily verifieddiffers fro
m an affidavit, which statesfacts under oath.
BASIS
An affidavit is based upon either the personal knowledge of the affiant or his
or her information and belief. Personalknowledge is the recognition of particu
lar facts by either direct observation or experience. Information and belief is
what theaffiant feels he or she can state as true, although not based on firsth
and knowledge.
THE AFFIANT
Any person having the intellectual capacity to take an oath or make an affirm
ation and who has knowledge of the facts thatare in dispute may make an a
ffidavit. There is no age requirement for an affiant. As long as a person is old
enough tounderstand the facts and the significance of the oath or affirmation
he or she makes, the affidavit is valid. A criminalconviction does not make a
person incapable of making an affidavit, but an adjudication of Incompeten
cy does.
Someone familiar with the matters in question may make an affidavit on beh
alf of another, but that person's authority to doso must be clear. A guardian
may make an affidavit for a minor or insane person incapable of doing so. An
attorney maymake an affidavit for a client if it is impossible for the client to d
o so. When necessary to the performance of duties, aPersonal
Representative, agent, or corporate officer or partner may execute an affid
avit that indicates the capacity inwhich the affiant acts.
A court cannot force a person to make an affidavit, since, by definition, an a
ffidavit is a voluntary statement.
THE TAKER OF THE AFFIDAVIT
Any public officer authorized by law to administer oaths and affirmations
such as city recorders, court clerks, notaries,county clerks, commissioners of
AFFIDAVIT
a written statement sworn or affirmed before a commissioner for oaths (or n
otary public in Scotland), usedin some circumstances as evidence in court.
AFFIDAVIT, practice. An oath or affirmation reduced to writing, sworn or
affirmed to before some officer who has authority toadminister it. It
differs from a deposition in this, that in the latter the opposite party has
had an opportunity to cross-examinethe witness, whereas an affidavit is
always taken ex parte.
2. Affidavit to hold to bail, is in many cases required before the
defendant can be arrested; such affidavit must be madeby a person who is
acquainted with the fact, and must state, 1st, an indebtedness from the
defendant to the plaintiff; 2dly,show a distinct cause of action; 3dly, the
whole must be clearly and certainly, expressed.
3. An affidavit of defence, is made by a defendant or a person knowing
the facts, in which must be stated a positiveground of defence on the
merits.