Provisions and construction of the acts. This section of course embraces all actions of assumpsit, covenant and debt, and applies as well to recognizances of bail, as to bail bonds, bonds for the limits, &c. The second section of the same act provides, that the provisions of the first section (above recited) shall not extend to proceedings for contempts, actions or judgments for fines or penalties for crimes or misdemeanors, or offences prosecuted in the name of the State of Ohio, or on promises to marry, for moneys collected by any public officer or attorney at law, or for any misconduct or neglect in office or professional employment. The words professional employment, include physicians, surgeons, attorneys at law, engineers, surveyors, &c. This second section merely excepts certain cases from the operation of the first section, and leaves the question of bail in the cases mentioned in the second section as it stood before the passage of the non-imprisonment acts.48 The cases above provided for by the first and second sections above recited, and in which no capias can issue under the non-imprisonment acts (unless an affidavit be filed establishing one of the eight particulars hereinafter mentioned) seem to be the following, namely: all such actions of assumpsit, covenant, debt and trespass, as are not expressly excluded from the operation of the first section, by the provisions of the second section, above recited. The reader will observe, that actions of slander, trover, and actions for that class of injuries which is unconnected with, and not sounding in contract, and for which an action of trespass will not lie, are not embraced within the provisions of the above sections, and consequently are not within the provisions of the non-imprisonment acts. These will be more particularly pointed out in the next section. It will be observed that the first section of the non-imprisonment act, recited on the preceding page, forbids the issuing a capias in the cases therein mentioned, unless certain particulars are established by affidavit. The third section of the same act and the acts amendatory thereto, point out the eight particulars above referred to, which are to be established by affidavit, and the establishment of which authorises the issuing of a capias in the cases provided for by the said first section. These provisions of the third section, and of the acts amendatory thereto, are as follows:49 "That if any creditor, his authorised agent or attorney, shall make oath or affirmation, in writing, before any judge of the Supreme Court, or Court of Common Pleas, justice of the peace, or clerk of either of said courts, that there is a debt or demand justly due to such creditor of one hundred dollars or upwards, specifying, as near as may be, the nature and amount thereof, and establishing one or more of the following particulars : "First: That the defendant is about to remove his property out of the jurisdiction of the court, with intent to defraud his creditors; or, (48) 1 Hill, N. Y. 373. (49) Stat. 647. Cases not within the operation of non-imprisonment acts. "Second: That he is about to convert his property into money, for the purpose of placing it beyond the reach of his creditors; or, "Third: That he has property, or rights in action, which he fraudulently conceals; or, 66 "Fourth: That he has assigned, removed, or disposed of, or is about to assign, remove, or dispose of his property, with intent to defraud his creditors; or, Fifth: That he fraudulently contracted the debt, or incurred the obligation for which suit is about to be brought; or, (under the amendatory acts,) "Sixth: That the defendant is about to remove his person out of the state or county, with intent thereby to defraud his creditors; or, "Seventh: That he has converted his property into money, for the purpose of placing it beyond the reach of his creditors; or, 66 Eighth: That he is not a citizen, or resident of this State; "And shall file such affidavit with the clerk of the Court of Common Pleas of the proper county, such clerk shall thereupon issue a capias." As executions may issue to any county in the state,50 the first particular above mentioned, viz : "that the defendant is about to remove his property out of the jurisdiction of the court," will, probably, be construed to mean, that the defendant is about to remove his property out of the State. As to the terms "resident" and "citizen," in the eighth particular. A person having a fixed and permanent abode or dwelling place for the time being, though not a citizen of the State, must be deemed a resident; a nonresident is a transient passenger.51 If a citizen of a sister State come here, without the intention to take up his abode in this State, but intending to return, after a temporary absence from his home, he cannot be deemed a citizen of this State.52 But if a person removes to this State with a view of making this State his home, he is, from the instant he takes up his residence here, a citizen and resident of this State, so far as regards the provisions of this statute.53 SEC. III. WHAT CASES ARE NOT WITHIN THE OPERATION OF THE NON- It will be proper, in the first place, to state what the law was in relation to the issuing of a capias ad respondendum, at the time the non-imprisonment acts were passed. By the sixth section of the Practice Act of March 8th, 1831,54 it was provided, "that the plaintiff shall be entitled to have special bail in all actions brought on (50) Stat. 657, sec. 50. (5) 8 Wend. 140; 20 John. 210; 4 Wend. 602. (52) 5 Mason 70; 3 Wash. C. C. Rep. 516. (53) 6 Pet. 761; 1 Paige 183; 4 Wash. C. C. Rep. 103; Paige 594. (54) 3 Chase 1674. When the collated Statutes were published, it was supposed that the 6th section of the Practice Act of 1831, was virtually re pealed by the non-imprisonment act of 1838; and such, I believe, was the general impression of the Bar. A subsequent careful review of the nonimprisonment acts induces me to believe, that this section of the Practice Act is still in force in those cases not provided for by the non-imprisonment acts. Cases not within the operation of non-imprisonment acts. any covenant, bond, sealed bill, promissory note, due bill, bill of exchange, or article of agreement for the payment of any sum of money certain; and in all actions brought on other contracts, by which the sum due, or damages sustained, shall appear to be uncertain, but which the plaintiff or his agent shall swear, by affidavit, to be filed in the cause, are not less than one hundred dollars; and the plaintiff shall have special bail in all other cases in which the court in term time, or any judge thereof in vacation, shall, from the particular circumstances, order such special bail to be given." It will be perceived, that, under these provisions of the Practice Act, a capias was allowed to issue of course, and without an affidavit of any kind, in suits on contracts for the payment of a sum of money certain. If the amount due, or damages sustained, upon a contract were uncertain, then the only affidavit required was that the amount due, or damages, exceeded one hundred dollars. In all other cases, even in an action of slander, the court or judge might, from the particular circumstances, order a capias to be issued, and special bail to be given. Thus stood the law before the passage of the non-imprisonment acts. The non-imprisonment acts do not specifically repeal any previous laws. They merely repeal all laws and parts of laws inconsistent with the non-imprisonment acts.51 All previous laws not inconsistent with the non-imprisonment acts are therefore still in force. The non-imprisonment acts simply provide that in a certain class of cases a capias ad respondendum shall not issue unless an affidavit be filed establishing a particular state of facts; all other cases are left to the operation of the sixth section of the Practice Act above mentioned.52 The non-imprisonment acts do not provide for the following cases, namely: 1st. Actions on promises to marry.53 2dly. Actions for moneys collected by a public officer, or attorney at law.53 3dly. Actions for any misconduct or neglect in office.53 4th. Actions for any misconduct or neglect in a professional employment.53 5th. All other actions, not sounding in contract, and where the action of tresspass will not lie.54 These several five classes of cases not being provided for, by the non-imprisonment acts, are therefore, left to the operation of the sixth section of the Practice Act of 1831, above mentioned.55 (51) Stat. 649, §8. issuing a capias ad respondendum in a certain (52) 1 Hill, N. Y. 373; Graham's Pr. 2 ed. 460. class of cases, therein pointed out, unless an affi(53) Stat. 647, §2. (54) See Stat. 646, §1. (55) I cannot avoid the responsibility of expressing an opinion in regard to the construction of the non-imprisonment acts, although, in doing so, I may mislead the reader. The fifth class of actions named in the text as coming under the sixth section of the Practice Act of 1831, must be understood as my own construction of the first section of the non-imprisonment act. Stat. 646; ante, p. 124. The non-imprisonment act simply forbids the davit is filed with the clerk establishing certain facts. The class of cases thus pointed out, are: 1st, When suit is brought for a breach of any contract, other than a promise to marry, &c. 2dly, When suit is brought for the recovery of damages in an action of trespass. It is true, the section referred to (see ante, p. 124,) forbids an execution for the body, on judgments and decrees founded upon a breach of contract, and on judgments in actions of trespass, " or for consequential damages," but these last words relate to judgments in suits com General requisites. SEC. IV. THE GENERAL REQUISITES OF AFFIDAVITS TO HOLD TO BAIL. 1. How entitled. The affidavit should be entitled of the Court in which the suit is about to be commenced, as thus; "The Court of Common Pleas; "56 but should not be entitled of any cause, for no cause is in court when it is made;57 but if so entitled, no advantage can be taken of it, by the defendant.58 2. How the cause of action should be stated in the affidavit. It is said in the case of Smith against Madison,59 that the strictness and nicety of the English practice, in regard to affidavits to hold to bail, will not be sanctioned. How far the decisions in England, under a statute, which, so far as regards this part of the affidavit, is similar in its provisions to that of Ohio,60 will be followed, it is, therefore, impossible to determine. It seems proper, however, to state here, the leading decisions of the English courts upon this subject, which, if not followed, may at least guide the practitioner in a safe path. The affidavit should be positive as to the existence of the debt, or other cause of action, and not argumentative.61 Therefore, swearing to the debt as the deponent "believes,"62 or "as appears by the bonds" or "by the books," or the like;63 or, if the affidavit is not positive as to the debt, but merely states the circumstances of the case, and adds, “therefore the defendant is indebted,” menced by summons, and the fourth section of the non-imprisonment acts (Stat. 647) provides for the allowance of a capias ad satisfaciendum upon judgments and decrees in such cases. I conclude, therefore, that in actions strictly for torts, other than trespass, the non-imprisonment acts do not provide for, nor forbid the issuing a capias ad respondendum; unless, indeed, the term "action of trespass," includes actions in tort for consequential damages. But this cannot be-for, although the word "Trespass," in its most extensive signification, includes every description of wrong; (7 East 134, 135; Co. Lit. 57, a); yet the term "action of trespass" has ever had a known, legal, definite and circumscribed meaning, viz: an action brought to recover damages for injuries committed with force; and, generally, only for such as are immediate. (1 Chit. Pl. 165, 166.) A technical term of this kind, when used in a statute, must, it is presumed, be applied according to its legal acceptation; (1 Kent's Com. 462); especially, where the context shows that the Legislature, in speaking of executions for the body in the same section, distinguish between actions of trespass and actions for consequential damages. I am strengthened in my views of the construction of this act, by a reference to the provisions of the non-imprisonment act of the State of New York, passed April 26, 1831. (Laws of New York, 54th session, p. 396.) Most of the provis ions of the non-imprisonment act of Ohio are taken from the statute of New York, which was drafted by John C. Spencer, Esq. It is unfortunate that they are not precisely alike; for, nearly all the difficulties in the construction of the Ohio statute, arise from slight discrepancies between the two. The first section of the non-imprisonment act of Ohio, is copied, in substance, from the New York statute, except that in the Ohio law the term "action of trespass" is interpolated. It is held in New York, that actions for wrongs to persons individually, or to their relative rights, or to their real or personal property, actions of trover, detinue, trespass, &c., are not within the operation of the section; (Graham's Pr. 2d ed. 464); and that the non-imprisonment act leaves the question, as to whether a capias may issue in these last mentioned actions, to the operation of the laws in force when the non-imprisonment act was passed. 1 Hill, N. Y. 373. (56) 13 East 189; 3 M. & S. 157. (58) 7 T. R. 317; 7 Ohio Rep. (part 2) 236. (62) 2 Str. 1209. 1226; 2 Burr. 655; 1 Browne 33; 1 Wils. 231. (63) 1 Wils. 339. 279. 121; 3 Burr. 1447; 2 T. R. 55; 3 T. R. 575. Its general requisites-Statement of the cause of action. &c.,64 the affidavit is insufficient, and the defendant discharged on common bail. But where it is impossible to swear positively, as where the cause of action arose from the nonpayment of bills in a foreign country, it was held sufficient for the party to swear that they were not paid, "to his knowledge and belief,” in such foreign country, or elsewhere.65 So, where the plaintiff sues in autre droit, it is not required that he should swear positively to the debt; for, if an administrator swear to his belief, or the commissioner of insolvents to the debt as appears by the insolvent's books, or the like, and also as he verily believes, it will be sufficient.66 So, the assignee of a bond, or the agent of a principal who resides abroad,67 or the like, will be permitted to swear to the best of his knowledge and belief.68 Other cases standing in pari ratione require the same relaxation of the general practice.69 The affidavit must not only be positive as to the existence of the debt or other cause of action, but must also state, as near as may be, the nature of such debt, how it arose, &c., and its amount;70 and the affidavit in this respect must, in general, be certain and explicit.71 Therefore, an affidavit that the defendant "is indebted to the plaintiff in trover; "72 or in so much "on promises,"73 or in or about so much,74 is insufficient. So, it has been held, that an affidavit that the defendant was indebted to the plaintiff for goods sold and delivered, not stating, "by the plaintiff to the defendant;"75 or for goods sold and delivered to the defendant, without saying "by the plaintiff; "76 or for goods sold and delivered for the defendant, instead of to the defendant,77 is bad. But an affidavit for money had and received on account of the plaintiff, without adding, "by the defendant; "78 or for money paid and expended by the plaintiff for the defendant's use, without adding, "at the defendant's request,"79 is sufficient. An affidavit on a bill of exchange, or promissory note, must state that it is due and unpaid;80 or some other circumstance from which that fact may be presumed, as the date, &c. It must also show in what character the defendant is sued, whether as acceptor, drawer, or indorser;81 but it is not necessary to state the character in which the plaintiff claims.82 An affidavit for so much principal and interest due on a bond, is sufficient, without stating the bond to be conditioned for the payment of money.83 But |