Affidavits
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1744 |
| Date | 01 January 1744 |
| Court | High Court of Chancery |
English Reports Citation: 21 E.R. 837
HIGH COURT OF CHANCERY
CAP. III. affidavits. (A) Where an Affidavit is necessary, & e cont'. (B) Where an Affidavit may be said to be full and sufficient, and what shall be allowed thereon. (A) where an affidavit is necessary, & e cont'. 1. If a Bill be exhibited, grounded on the Loss of a Bond; per Ld. K. As it is the Loss which intitles the Court to Jurisdiction of the Cause, Affidavit must be made of it. Trin. 26 Car. 2 [1674], Anon. 1 Chan. Ca. 231. 2. But if a Person comes only for a bare Discovery of a Deed, he need not make Oath of the Loss of it, as he must do when he comes for Relief; for he cannot translate the Jurisdiction without Oath made of the Loss of the Deed. Per Ld. K. Trin. 1684, Godfrey and Turner, 1 Vern. 247. 3. So where a Bill was brought 'for a bare Discovery of a Deed, and the Defendant demurred, because the Plaintiff had not made Oath, according to the Course of the Court, that he had not the Deed; upon which this Distinction was taken and allowed of by the Court, vie. That where a Person comes for a Discovery, and prays Relief, there it is necessary for him to make Affidavit of the Want of the Deed; but when he seeks but a bare Discovery, or to have it produced at a Trial, it is not necessary; for it is not to be presumed, [140 that the Plaintiff in either of the later Cases would do so absurd a Thing, as exhibit a Bill, if he had the Deed, [Anonymous, 1663] 1 Chan. Ca. 11, [Anonymous, 1683] 1 Vern. 180, S. P. But vide [Anonymous, 1682] 1 Vern. 59, where the Distinction is taken quite contrary, but seems to be the Mistake of the Reporter. 4. The Plaintiff had purchased the Manor of Leyborn in the County of Kent, and the Defendant was Tenant of Part thereof by a Lease for Years, which was now expired, at the Rent of £80 per annum; and the Plaintiff by his Bill set forth, that the Court- Rolls, Title-Deeds, and Writings belonging to this Manor, were kept in a Closet in such a Room at the chief Mansion-House, and that after his Purchase, the House being repairing, and Workmen in the House, the Defendant took that Opportunity, and got into the Closet, and took away all the Writings, and (amongst others) the Counterpart of the Defendant's Lease, and charged that the Defendant had broke several of the Covenants in his Lease; but that for Want of the Counterpart the Plaintiff could not ascertain his Damages in an Action at Law to be brought concerning the same; and therefore prayed a Discovery of this Counterpart, and general Relief. To this Bill the Defendant demurred to the Relief only, for that the Plaintiff had not annexed to his Bill the usual Affidavit, that he had not the Counterpart in his Custody, and gave a full Answer, by Way of Discovery, to the whole Bill; but the Demurrer was over ruled, for that the Bill was only...
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