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Report No. 60

3.5. Origin of English practice.-

It may be noted that in England, the practice of taking evidence by affidavits originated in the Court of Chancery. Following the practice of the civil law, the Court of Chancery, for many centuries, decided causes upon affidavit evidence, with only occasional oral cross-examination.1 For example, the rule in force in Chancery2, in 1861, provided that "it shall not be competent for the plaintiff or any defendant to require, by notice or otherwise, that the evidence to be adduced shall be taken orally". As regards oral evidence, for some time, English law allowed only oaths. The position was later altered by statutes, which allowed affirmations3.

Even recent English practice indicates that the word "affidavit" is generally used to denote a statement in writing on oath (or on affirmation). Thus, the rules of the Supreme Court4 provide that every affidavit shall be instituted in the cause or matter in which it is sworn, and that affidavits must be confined to such facts as the witness is able of his own knowledge to prove. These rules also speak of the affidavits being "filed" (in the Registry), prohibit alteration in affidavits except under certain conditions and so on.

Similarly, the County Court Rules5 provide that affidavits shall be expressed in the first person, drawn up in paragraphs and numbered, and made by some person who has knowledge of the facts etc. These provisions are, unfortunately, not noticed by text-book writers on the interpretation of statutes when they discuss the meaning of affidavit. The Bankruptcy Rules have similar provisions6. The important point to be made is that "affirmation" and "declaration" primarily denote a substitute for the formality of oath.

1. Best Law of evidence, (1922), P. 102, para. 118.

2. Chancery Consolidated Orders, (1861), Order 19, rule 3, quoted in Best Law of Evidence, (1922), p. 102, footnote.

3. The principal Acts relevant to affirmations are the Oaths Acts, 1888 and 1961 (Eng.).

4. Order 38, rules 2 and 3, R.S.C. (Eng.)

5. Order 20, rule 19, County Court Rules (Eng.)

6. Bankruptcy Rules, 1952, rules 55-60 (Eng.)



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