arrest. previously holden to bail, he may be arrested on the judg- Second ment, subject to the limitations and restrictions which have been formerly enumerated. Notwithstanding a writ of error may have been brought, and bail put in and perfected by the plaintiff, a defendant, in the Court of Common Pleas, may be arrested in an action on the judgment, when he has not been holden to bail in the former suit. (q) In Kendal v. Carey, (r) there was a similar decision; but from the observations made by Mr. Justice Gould in the latter case, it may be inferred that a different practice prevails in the Court of King's Bench. After a judgment in a former suit has been reversed for error, a party may be again legally arrested for the same cause of action. (s) On judgment pending a writ of error. CHAPTER V. OF THE AFFIDAVIT TO HOLD TO BAIL. It has been seen, (a) that by a recent act of parliament, no person can be holden to special bail, where the cause of action does not amount to the sum of 15l. or upwards. And that in such cases, an affidavit (b) must be made and duly sworn before some judge of the court, or (9) Weyman v. Weyman, Barnes, 71. 2 Com. Rep. 556. s. c. by the name of Wayman v. Wayman, Prac. Reg. 57, s. c. (r) 2 Bl. Rep. 768. The reason of this practice is because there never has been bail given in this court. Per Gould, J. ibid. Cartwright v. Keely, 7 Taunt. 192. Vide ante, p. 14. The usual and ordinary form of the instrument is, that the defendant is justly and truly indebted to the deponent in a specified sum of money, for &c. (stating the nature of the debt or cause of action, with certainty and precision.) hold.to bail. Affidavit to commissioner authorized to take affidavits therein, or before the officer issuing the process, or his deputy, and for which shall be paid only one shilling, over and above the stamp duties; and that the sum specified therein shall be endorsed on the back of the process, for which sum so endorsed, the sheriff or other officer shall take bail; and that if process shall issue for 15l. or more, without such affidavit and endorsement made, the plaintiff shall not arrest the defendant, but shall proceed as in non-bailable actions. (b) SECTION I. BY WHOM THE AFFIDAVIT MAY BE MADE. THE affidavit of the cause of action, rendered necessary by these statutes, may be made by any person, of whatever religion, rank, or country, having the use of his reason, and such religious belief as to feel the obligation of an oath. The other numerous disqualifications which might be urged against the party, if he were produced as a witness in a cause, do not in general render him incompetent to make an affidavit of debt. But, it would however appear, that the circumstance of the deponent having been convicted of an infamous crime, might afford sufficient ground to induce the court to reject the affidavit, (c) although (b) In 12 Geo. 1. c. 29., 5 Geo. 2. c. 27., 21 Geo. 2. c. 3., 19 Geo. 3. c. 70., 51 Geo. 3. c. 124. s. 1., 57 Geo. 3. c. 101. (c) Nichols v. Dallyhunty, Barnes, 79. Prac. Reg. 49. s. c. The King v. Davis, 5 Mod. 74. Holt, 501. s. c. Walker v. Kearney, 2 Stra. 1148. Cowp. 3. 2 Wils. 225. To support this objection to the admission of an affidavit, the defendant should be prepared with a copy of the judgment regularly entered upon the verdict of conviction. Davis v. Carter, 2 Salk. 461. It was said in the cases of Davis v. Carter, 2 Salk. 461. and Horsley v. Somers, Barnes, 116. that a party who had been convicted of an infamous crime, should not be stripped of his legal remedy to recover his just debts, and ought therefore to be considered capable of making an affidavit of the cause of action. made. it has been decided that when the debt is sworn to by a By whom competent third person, the court will not receive a counter-affidavit, disclosing that the creditor himself was incapable of making the deposition, but will oblige the defendant if he has any tenable defence on that ground, to avail himself of it by plea. (d) As the legislature have, by several acts of parliament (e) dispensed with oaths from Quakers, in civil cases, their affirmation is sufficient to hold a party to bail. (f) The affidavit is frequently, though not necessarily, made by the creditor himself. (g) It may be made by one of several plaintiffs, (h) or the creditor's wife, clerk, servant, or by any other third (i) person, who can swear positively and unequivocally to the existence of the debt or other cause of action. And whether the principal resides in this or a foreign country, such affidavits would be equally valid; as in either case if the deponent forswear himself, he will incur the liability of being indicted for perjury. (k) Nor does it seem essential or requisite that the connexion between the plaintiff and the party making the affidavit, should appear upon the face of the deposition.(1) (d) Nichols v. Dallyhunty, Barnes, 79. Prac. Reg, 49. s. c. Bland v. Drake, 1 Chit. Rep. 165. (e) 7 & 8 W. 3. c. 34., 1 Geo. 1. st. 2. c. 6., 8 Geo. 1. c. 6., 22 Geo. 2. c. 46. ss. 86, 37. Cowp. 382. Willes, 292. See Omichund v. Barker, 1 Atk. 21. 1 Wils. 84. Willes, 534. s. c. (g) King v. Lord Turner, 1 Chit. Rep. 58. (h) Swayne v. Crammond, 4 T. R. 176. See 1 Ld. Raym. 380. (1 Wils. 339. Pieters v. Luytjes, 1 B. & P. 1. King v. Lord Turner, 1 Chit. Rep. 58. Brown v. Davies, id. 161. In Elliot v. Duggan, 2 East, 24. (k) King v. Lord Turner, 1 Chit. Rep. 59. See Knight v. Keyte, 1 East, 415. as to an affidavit of belief, see post. (1) Pieters v. Luytjes, 1 B. & P. 1. 230. Knight v. Keyte, 1 East, 415. Rep. 58. Brown v. Davis, id. 161. Selwood, 9 Price, 322. Andrioni v. Morgan, 4 Taunt. 1st. The affidavit must be positive. SECTION II. GENERAL QUALITIES OF AN AFFIDAVIT. THE general rules, as applicable to every affidavit to hold to bail, may be comprised under the following divisions: 1st. The affidavit must be direct and positive in stating the existence of the debt or other cause of action, unless the facts are not within the personal knowledge of the party making the affidavit. 2d. It must be express, certain, and explicit, as to the nature of the cause of action and the means by which such cause of action was created. 3d. It should not only be positive as to the existence of the debt, and explicit in detailing its nature, but it must be intelligible and free from ambiguity. 4th. It must be single, both with regard to the action and the parties. 5th. It must correspond in substance with the pròcess and declaration in the description of the parties, the subject matter of the suit, and the form of action. The affidavit must be direct and positive in stating the existence of the debt or other cause of action. This rule has been established as well to enable the party injured by a false deposition, to indict the deponent for perjury, as to guard those who make the affidavit against any misconception of the law. In some of the older cases, a less rigid regard seems to have been directed to the necessity of the affidavit being positive, than has been required by the more recent qualities of an affidavit. 1st. The affidavit positive. must be adjudications. In Moultby v. Richardson (m) an affidavit General "that defendant was indebted to the plaintiff in a named sum, as he computes it," was decided to be sufficiently positive. So in Long v. Linch (n) an affidavit stating "that the sum of 23001. was due and owing to the plaintiff for arrears of rent under a certain lease" was considered correct. But these cases seem to be at variance with the rule that the affidavit should be positive, and inconsistent with the majority of the decisions on the subject. (0) Hence an affidavit stating "that the plaintiff, on, &c. gave the defendant notice to quit on, &c. and that the latter held over, &c. by reason of which and by force of the statute an action hath accrued to the plaintiff to demand of the defendant, &c. (double rent)" is not sufficient. (p) On the same principle, where an affidavit to hold to bail stated the circumstances under which a debt accrued, and concluded by reason whereof the defendant stands indebted in a certain sum, which he hath refused and still refuses to pay," is bad; as the words "by reason whereof," are not a positive allegation but a mere recital.(q) So an affidavit, stating a promise made by the defendant, executor, &c. to pay a legacy of 1001. bequeathed by his testatrix, and confessing assets to the amount of 2807., but that the plaintiff not receiving the said sum, caused several applications to be made to the defendant without effect, therefore that the defendant was indebted, &c. was held insufficient, as it did not allege (r)" that the sum was still due and unpaid," for the (m) 2 Burr. 1032. Sed vide Mackenzie v. Mackenzie, 1 T. R. 716. On (0) See Pomp v. Ludvigson, 2 Burr. 655. Mackensie v. Mackenzie, 1 T. R. 716. |