On petition for a rehearing.
Biddle, J.The appellee asks a rehearing, upon the ground that the showing made by the affidavit of the minor to sue as a poor person does not state that it contains all the evidence upon the question.
The point was not mentioned in the appellee’s original brief. His arguments were all upon the questions of law arising in the case, all of which were carefully decided, and of which he does not complain. Nowhere in the record, nor in the appellee’s brief, is the sufficiency of the showing that the minor was a poor person, “ not having sufficient means to prosecute or defend an action,” questioned because the affidavit did not contain all the evidence. The point must therefore be held as waived. For this reason, if for no other, the appellee would not be en*373titled to a rehearing, even though the netv question he presents had merit. But we prefer to decide the question, as it is one generally affecting the practice.
The objection to the showing by the affidavit of the minor is, that it does not state that this was all the evidence given to the court touching the question. This is not necessary in an exparte affidavit. It is taken as prima facie true, not as so much evidence of its truth; and, when it is not controverted, it is held sufficient. No objection is made to the sufficiency of the facts stated in the affidavit to constitute a proper showing; but it is insisted that “This court can not tell whether the court below rvas justified in its action or not, unless they have the eAddence before it.” This court has the evidence before it in the uncontroverted affidavit, properly presented by a bill of exceptions. In all this class of affidavits, Avhen the affidavit is not controverted, it is never necessary to show that it contains all the evidence given upon the question. In such cases, it is always taken as prima facie true. This is an old common-laAv rule, Avhich we never before heard questioned. In an affidavit for continuance, for a change of venue, to found a rule upon, in attachment, for contempt, in matters of surprise, on a motion for a neAv trial, to obtain a Avrit, to verify a plea or the service of a summons, or for an injunction, and in innumerable instances when they are necessary in the course of a judicial proceeding, it is never necessary to show that it contains all the evidence upon the subject. Blackstone expresses the true use of an ex parte affidavit, for the purpose of founding a motion, in the following words :
“This may be done upon Avhat is called a motion; Avhich is an occasional application to the court by the parties or their counsel, in order to obtain some rule or order of court, which becomes necessary in the progress of *374a cause; and it is usually grounded upon an affidavit (the perfect tense of the verb affido), being a voluntary oath before some judge or officer of the court, to evince the truth of certain facts, upon which the motion is grounded.” 3 Bl. Com. 304.
It will be observed that the affidavit is an “ application to the court,” not addressed to the issues of the cause; it is to obtain some rule or order from the court, not to prove a fact in issue on the trial; it is to “ evince the truth of certain facts,” not as controverted evidence tending to prove certain facts.
A suit in attachment affords a common instance to show the difference between an ex parte affidavit, and an affidavit to a fact put in issue by the controversial pleadings of the parties in the cause on trial. An ex parte affidavit, stating the necessary facts, is sufficient to authorize the issuing of a writ of attachment against the goods of the debtor. No one would claim that, for that purpose, it is necessary tha( the affidavit should show that it was all the evidence given to authorize the writ; but if the facts contained in the affidavit are put in issue between the parties on the trial of the cause, as they may be, the affidavit, for the purposes of that issue, will not be held as prima facie true; and, if such issue is brought before this court upon the question, oí fact, the bill of exceptions must show that it contains all the evidence; but if the question of the sufficiency of the facts stated in the affidavit to authorize the issuing of the writ, is brought before this court, it is not necessary that the bill of exceptions should show that the affidavit contained all the evidence of the facts upon which the writ of attachment was issued.
We think the rule should be, that, where an affidavit i§ filed on which a motion is based, and the court passes upon the motion, it will be presumed that the affidavit was the sole ground on which the court acted — the record showing *375nothing to the contrary — although the motion was one which admitted of couuter affidavits, or other contradicting evidence.
We have thus particularly explained, in theory, what we supposed was well understood in practice, not that we deemed the question so important, but that we felt that the explanation ivas due to the earnestness of the counsel who prepared the petition, which is now overruled.