qualities of an affidavit.

4th. The

must be

single.

4thly. The affidavit must be single both in regard to the General action and the parties. Where the plaintiff has several distinct claims, that cannot be joined in one suit, consistently with the boundaries prescribed by the law to the affidavit various forms of action, there must be a separate affidavit for each demand. Hence, where a defendant had been arrested in an action of debt upon a bond, and also for a demand in assumpsit upon one affidavit, he was ordered to be discharged on filing common bail in both actions ; (e) as a different practice would be a fraud on the stamp duties, and not unfrequently operate as a vexatious and oppressive mode of proceeding to the defendant.

On a similar principle, demands owing to several and distinct persons cannot be included in the same affidavit ; and if improperly joined, the instrument cannot be made available to support proceedings at the suit of one. (f) The rule which prohibits two separate plaintiffs from joining in an affidavit, equally precludes admitting an affidavit that comprises two separate defendants. (g) Where, therefore, it was stated in an affidavit that the maker and indorser of a promissory note were indebted to the holder, it was decided that neither could be holden to bail on that deposition. (h) So in penal actions, where several persons have separately incurred penalties, they cannot be holden to bail on one affidavit, comprising all of them collectively; (i) as such a practice would impose on each defendant the unnecessary expense of taking copies of those parts of the affidavit relating to offences not individually imputed to him. An affidavit to hold

(e) Crooke v. Davis, 5 Burr. 2690. See Hussey v. Wilson, 5 T. R. 254. The Dean and Chapter of Exeter v. Seagell, 6 id. 688. Gilby v. Lockyer, 1 Doug. 217. Southcote v. Brathwaite, cited id. 218. n. Lewin v. Smith, 4 East, 589. Anon. 3 Taunt. 469.

The Dean and Chapter of Exeter v. Seagell, 6 T. R. 688. Gilby v. Lockyer, 1 Doug. 217. Holland v. Johnson, 4 T. R. 695, (h) Hussey v. Wilson, 5 T. R. 254.

Goodwin_v. Parry, 4 T. R. 577.

General qualities of

to bail on a penal statute, may, however, include several an affidavit. offences committed by the same defendant. (k)

5th. The affidavit

must cor

respond with the

process, &c.

In the description

of the parties.

A deviation from the rule, that the affidavit must be single, is an incurable defect, and is not waived by subsequent steps being taken in the cause; and the proceedings of the plaintiff will be set aside on motion. (l)

5thly. The affidavit must correspond, in substance, with the process and the declaration, in the description of the parties, subject matter of the suit, and the form of action. The primary object endeavoured to be attained by this rule, is to establish a visible connexion between the different stages of the proceedings, in order to facilitate a prosecution for perjury, if the affidavit be untrue, and to preclude any opportunity of subterfuge or evasion.

When defendants were holden to bail on an affidavit, describing them as surviving partners, but were charged in the declaration, in their individual capacity, the variance was considered fatal, and the defendant was discharged on common bail. (m) So, a misnomer in the Christian name of the defendant, would entitle him to be released from custody; as, where in the affidavit the defendant was called Thomas Baker, but in the declaration filed against him, he was designated by the name of

(k) Holland v. Bothmar, 4 T. R. 228. See King v. Cole, 6 id. 640. (Goodwin v. Parry, 4 T. R. 577. Hussey v. Wilson, 5 id. 254. Sed vide D'Argent v. Vivant, 1 East, 330., and see Dalton v. Barnes, 1 M. & S. 230. in which some doubt has been thrown upon the rule stated in the text. In this case, Mr. Justice Bayley observed, that there was not any instance in which the party, after putting in bail above, had been permitted to take advantage of a defect in the affidavit to hold to bail.

(m) Spalding v. Mure, 6 T. R. 363. Attwood v. Rattenbury, 5 B. Moore, 209. Christie v. Walker, 1 Bing. Rep. 68. 206. As to the principal point decided in Spalding v. Mure, see Richard v. Heather, 1 B. & A. 29. where it was held, that under a declaration containing only one set of counts, charging the defendant in his own right, the plaintiff might recover one demand from the defendant individually, and another due from him as a surviving partner. But where a party sues as a surviving partner, he must be described as such in the declaration. Jell v. Douglas, 4 B. & A. 374.

Charles. (n) But a trifling variance in the names of the parties will not be material, if their identity be not involved in doubt. A difference therefore in spelling the defendant's name, as Rennoll for Rennolls, (o) or misspelling the final syllable, by inserting "rum" instead of "run," (p) will not vitiate the instrument.

In describing the subject matter of the action, the affidavit should disclose the whole of the plaintiff's demands. For where the affidavit stated that the defendant was indebted on a bill of exchange, and a general verdict was given, as well for goods sold as in respect of the bill, it was decided that the plaintiff could not, by combining other causes of action against the principal, transfer the liability of the bail to other claims not included in the affidavit, and for which they had not become responsible. (q) In the case referred to, Dallas, C. J. said, "When we look to what is technical, we find no difference of opinion in the officers or in the court; when we look to the books of practice the text is positive; when we look to the reason of the thing, it is, that if bail are told there is a debt of 1677. due on a bill of exchange, they shall not be liable for goods sold and delivered. The bail ought to know the extent of their responsibility." (r)

Where the affidavit to hold to bail was on a bill of exchange for 5231. 17s. 6d. and the declaration described the instrument as a bill of exchange for 523 livres, 17 sous, and 6 deniers, being of the value of 5231. 17s. 6d. sterling, the court considered this to be no variance, because the value of the money, described in the affidavit to hold to

(n) Clark v. Baker, 13 East, 273. Johnson v. Cooper, 5 B. Moore, 472., where the party appears to the writ by his right name, he waives the irregularity, Hole v. Finch, 2 Wils. 393.

v. Rennolls, 1 Chit. Rep. 659. n. (9) Wheelwright v. Jutting, 7 Taunt. 304. See Caswell v. Coare, 2 Taunt. 107.

(p) Anon. id. 660. n.

1 B. Moore, 51. s. c. (r) 7 Taunt. 305.

General

qualities of

an affidavit.

5th. The

affidavit must cor

respond with the

process, &c. In the subject matter of

the suit.

General

qualities of an affidavit.

In the form of action.

bail, and that set out in the declaration, were the same in substance and effect. (s)

The cause of action described in the affidavit to hold bail, must be consistent with the remedy intended to be adopted in the declaration. An essential incongruity in this respect will exonerate the bail. A declaration in trover on a bailable writ in assumpsit, is therefore irregular; (t) and the court will, in general, stay proceedings in an action against the bail, on their recognizance, if the plaintiff did not recover against the principal for the cause of action expressed in the affidavit. (u)

SECTION III.

GENERAL QUALITIES IN PARTICULAR ACTIONS.

In the present section, it is proposed to consider the qualities of the affidavit, as applicable to the particular forms of action, and the particular causes which generally constitute the various subjects of litigation. It must, however be remembered, that a strict observance of the general rules stated in the immediately preceding section, and certain formal qualities which will be enumerated in a subsequent part of the work, must be invariably adhered to, to render it a valid deposition.

Civil actions, when considered with reference to the nature of the injury suffered, or of the remedy sought, are commonly divided into actions in form ex contractu, and in form ex delicto. Under these two appropriate divisions the subordinate classes of particular actions and particular rights are comprised. Consistently with this ar

($) Gould v. Logette, 1 Chit. Rep. 659. (t) Tetherington v. Goulding, 7 T. R. 80. Maberly v. Benton, 5 B. Moore, 183. (u) Wheelwright v. Jutting, 7 Taunt. 304. 1 B. Moore, 51, s. c.

rangement, the general qualities of affidavits, in particu- General lar actions, will be specified and examined.

In form ex contractu.

qualities in particular actions.

The general qualities of an affidavit in an action of as- Inassumpsit.

sumpsit, will be investigated under the following divisions :

1st. Affidavit respecting personal property ;

2d. Affidavit respecting personal services ; 3d. Affidavit respecting monies;

4th. Affidavit respecting special contracts.

personal property. &c.

Goods sold,

An affidavit to hold to bail for money due on the sale 1st.Affidavit of personal property, must disclose its value, and contain respecting a clear and unequivocal allegation, that it was sold and delivered by the plaintiff to the defendant; but it need not set out so much of the transaction as will shew that it amounted to a legal sale, for the plaintiff takes upon himself to say, that such a sale and delivery was effected, as will constitute a valid cause of action. (x) A mere deposition on oath, stating that defendant is indebted to plaintiff, without describing by whom, to whom, or for whose use the property was sold and delivered, is insufficient. Hence an affidavit only alleging that the defendant is indebted to the plaintiff for goods sold and delivered (not stating by the plaintiff to him the defendant) is bad. So affidavits describing the debt to be for goods sold and appraised to the defendant, without saying by the plaintiff, (y) or by the plaintiff, without saying to the defendant,(z) or for goods sold and delivered for the defendant, instead of to the defendant; (a)

(x) Jenkins v. Law, 1 B. & P. 365.

(y) Cathrow v. Hagger, 8 East, 106. Fenton v. Ellis, 6 Taunt. 192. 1 Marsh, 535. s. c. Taylor v. Forbes, 11 East, 315.

(z) Young v. Gatien, 2 M. & S. 603.

(a) Bell v. Thrupp, 2 B. & A. 596., 1 Chit. Rep. 331. s. c.