66

the award and taxation are such as will support the action. Jenkins V. Law. 1 Bos. & Pull. 365. 30. Affidavit to hold to bail, “ that the defendant is indebted to the plaintiff in 201. according to the bill delivered by the plaintiff to the defendant,” is insufficient; it must be positive. Williams v. Jackson. 3 Term Rep.

575.

31. An affidavit to hold to bail, "stating a promise made by the defendant executor, &c. to pay a legacy of 100l. bequeathed by his testatrix, and confessing assets to the amount of 2801. 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. is not sufficiently positive. Mackenzie v. Mackenzie. 1 Term Rep. 716.

32. A bond was given conditioned for the payment of bills of exchange drawn in England, on A. in the EastIndies, in case such bills should be returned to England protested for non-payment. The affidavit to hold the obligor to bail, after stating, "that he was indebted to the deponent the obligee in a certain sum," stated also the condition of the bond, and that the said bills were not paid to his knowledge or belief in India, or elsewhere; but that they were protested for non-acceptance in India, and were still unpaid." It was no objection to this affidavit, that it was stated that the bills were unpaid to the knowledge and belief of the plaintiff; but it was bad, because it introduced a new term, not mentioned in the condition of the bond, viz. a protest for non-acceptance. Hobson & al. v. Campbell. 1 H. Black. 245.

33. An affidavit stating the defendant to be indebted to the plaintiff as indorsee of a bill of exchange, without alledging the bill to have become due, was held sufficient. Davison v. March, New Rep. 157.

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 has accrued to the plaintiff to demand of the defendant," &e. (double rent,) is not sufficient. Wheeler v. Copeland. 5 Term Rep. 364.

35. So stating the circumstances under which the debt accrued, and concluding, "by reason whereof the defendant stands indebted," is insufficient. Fowler v. Morton. 2 Bos. & Pull. 48.

36.

Affidavit "that the defendant was indebted to the plaintiff in 245l. for money lent by plaintiff to defendant for the use of another, and for which defendant promised to be accountable, and to repay or cause to be secured to the plaintiff," &e. insufficient; it not appearing in the affidavit but that the money had been secured according to the agreement. Jacks v. Pemberton. 5 Term Rep. 552. 37. In an affidavit to hold to bail, the plaintiff deposed, that at the time of the assignment therein-after mentioned, the defendant was indebted to him on a bill of exchange, and that he afterwards assigned the debt by indenture to A. B. C. and D. in trust: A. then deposed, that, at the time of the affidavit being made, the defendant was indebted to them A. B. C. and D. as such assignees and trustees as aforesaid. Held that the affidavit was insufficient, because it did not deny that the debt had been satisfied to the plaintiff between the assignment and the time of the affidavit being made. Mann v. Sheriff. 2 Bos. & Pull. 355.

But in the above case a supplemental affidavit was allowed. 2 Bos. &

Pull. 355. 38. One who became surety for the defendant before his discharge under an insolvent debtor's act, and was afterwards obliged to give a new secu, rity of a bond and warrant of attor ney, &c. for the old debt, cannot

40. A party cannot be held to bail for

a penalty, but only for the sum secured by the penalty. Hatfield v. Linguard. 6 Term. Rep. 217. 41. And therefore an affidavit " that the defendant was indebted to the plaintiff in 1000l. under an agree. ment in writing, whereby the defendant undertook to pay the plaintiff the balance of accounts, &c. which said balance is still due aud unpaid," without stating that the balance was 1000l. was held to be defective. 6 Term Rep. 217.

42. So an affidavit to hold to bail for a sum certain for the breach of an agreement, must shew that the sum demanded is stipulated damages, and not merely a penalty. Wildey v. Thornton. 2 East, 409. 43. In an affidavit to hold to bail in trover for a bill of exchange, it should be stated that the bill remains unpaid. Clarke v. Cawthorne. 7 Term Rep. 321.

44. The court of C, P. held an affidavit that the defendant " was indebted to the plaintiff in trover" bad. Hubbard v. Pacheco. 1 H. Black.

218. 45. Affidavit to hold to bail in trover, stating, "that the plaintiff's cause of action against the defendant was for converting and disposing of divers goods of the plaintiff of the value of 2501. which he refused to deliver though the plaintiff had demanded the same, and that neither the defendant or any person on his behalf had offered to pay to the plaintiff the 2501. or the value of the goods." was holden to be insufficient. Wolley v. Thomas. 7 Term Rep. 550,

46. If a defendant be holden to bail under a judge's order, upon an affidavit disclosing circumstances which shew that the plaintiff has been damnified to such an amount, it is sufficient; though it improperly state that the defendant was indebted to that amount, and disclose the special circumstances. Imlay v. Ellefsen. 2 East, 453.

47. On an affidavit that the maker and indorser of a promissory note are indebted to the holder, neither can be held to bail: it is also objectionable as being only on one stamp. And it is such an incurable defect that, if either be held to bail, he does not wave it by taking any step in the cause. Hussey v. Wilson. 5 Term Rep. 254.

48. A defendant, having been held to bail on an affidavit of a debt due from three defendants as surviving partners of another deceased, was discharged on filing common bail; the declaration being for a debt due from the three defendants alone. Spalding v. Mure and two others. 6 Term Rep. 363.

49. If an affidavit to hold to bail state two sums of money to be due from the defendant to two separate plaintiffs, though only one writ be sued out on it, the court will set aside the proceedings on that one writ. The Dean and Chapter of Exeter v. Seagell. 6 Term Rep. 688. 50. The plaintiff, in an affidavit to hold to bail, must give himself an addition; otherwise the defendant will be discharged on common bail. Jarrett v. Dillon. 1 East, 18. 51. The addition of " manufacturer" to the deponent's name is sufficient. Smith v. Younger. 3 Bos. & Pull.

550.

52. A foreigner whose general resi dence is abroad, and who only landed here for a temporary purpose, viz. to make an affidavit to hold the defendant to bail, may properly describe his place of abode to be in his own country, and not at a place where the affidavit was sworn, with

in the meaning of the rule of court. Bouhet v. Kittoe. 3 East, 154. 53. It is an immaterial objection to an affidavit to hold to bail, that the initials only of the defandant's christian names are inserted. Howell v. Coleman. 2 Bos. & Pull. 466. [And see post, VI.] 54. An affidavit to hold to bail sworn in Ireland, but made for the purpose of being used in this country, ought to contain all the essential requisites of such an affidavit made in England; amongst others, according to late acts, [37 G. 3. c. 45. s. 91:38G. 3. e. 1.] that the defendant had not made a tender of the money in notes of the Bank of England. Nesbett v. Pym. 7 Term Rep. 376, n. 55. Where bailable process was sued out previous to passing the said act, 37 G. 3. c. 45. and renewed four several times without any new affidavit, and the last renewal on which defendant was arrested, was subsequent to passing the act, the court of C. P. held the affidavit sufficient, though not according to the act Crooks v. Houldich. 1 Bos. & Pull.

276.

57. But in an affidavit to hold to bail for 201. and upwards, it is sufficient to negative the tender of the said sum in bank notes: that having reference to the specific sum sworn to, which was such as might be so tendered. Maylin v. Townshend. East, 1.

58. But it is not sufficient to negative a tender of the said sum of 201. and upwards: that having reference to a sum beyond the 201.~ Ford v. Lover. 3 East, 110.

59. It is sufficient if the affidavit state, that no tender was made by the de

fendant; without saying or by any other on his account. Wyatt & al. v. Smee. 1 Bos. & Pull. 344. 60. So if it negative a tender in notes "payable on demand," though the words of the act are "expressed to be payable on demand." Fowler v. Morton. 2 Bos. & Full. 48. 61. In an affidavit made by the plaintiff's agent, (the plaintiff himslf bebeing abroad,) it is sufficient to negative a tender, "as the agent believes." Munro v. Spinks. 8 Term Кер. 284.

62. But where plaintiff resided in England, and the affidavit was made by his clerk, it was held not sufficient to negative a tender "to the knowledge and belief of the clerk." Cass & al. v. Lery. 8 Term Rep. 520. Elliot v. Duggan. 2 East, 24. 63. An affidavit to hold to bail, however, sworn by a clerk in the chamberlain of London's office, as to the existence of the debt, and that no tender of it had been made in bank notes to the best of his knowledge and belief, was held sufficient, in an action by the corporation. Mayor, &c. of London v. Dias. 1 East,

237.

64. The court of common pleas have

held, that if an affidavit made by the plaintiff's clerk absolutely negative a tender in bank notes, it is bad. Smith v. Tyson. 2 Bos. & Pull. 339. Hammersley v. Mitchell. 2 Bos. & Pull. 389.

65. But the court of king's bench, on facts precisely similar, refused to discharge the defendant on a common appearance. Madox v. Abercromby. K. B. 41 G. 3. (cited in Hammersley v. Mitchell. 2 Bos. & Pull. 389.) And again in Knight v. Keyte. 1 East, 415.

66. A person employed in London as agent to one residing at a distance in the country, with a power of attorney to collect his debts, may make an affidavit of debt, positively denying any tender in bank notes. Chatterly v. Finck. 2 Bos. & Pull,

390.

67. An affidavit of debt made by one of three partners, denying any tender in bank notes to himself or to either of his partners, to the best of his knowledge and belief, is sutlicient. Stacey v. Federici. 2 Bos. & Pull. 390. 68. An affidavit to hold to bail in which a tender in bank notes is negatived by the plaintiff's clerk alone, then resident in London is insufficient, if the plaintiff be also resident in London; though the debt arose upon a bill transaction of which the clerk had the sole management. Bolt v. Miller. 2 Bos. & Pull. 420. 69. Affidavit made by A. in respect of a debt due to B. before his discharge under an insolvent act whereby B.'s estate became vested in the clerk of the peace, negativing a tender in bank notes to the knowledge or belief of A. held sufficient: the court allowing A. and B., by a subsequent affidavit, to shew that A. usually transacted B.'s business when out of town, and that at the time when the affidavit to hold to bail was made, B. was out of town, and that an immediate arrest was necessary, as the defendant was about to sail on a voyage. Lawson v. M'Donald. 2 Bos. & Pull. 590.

70. In an action by the assignees of a bankrupt, it is not sufficient for the bankrupt to negative the tender. Smith v. Barclay, 3 Bos. & Pull.

219.

1. In an affidavit by an assignee of a bankrupt it is necessary to negative a tender to the bankrupt before his bankruptcy: negativing a tender to the assignee is not sufficient. Martin v. Ranoe. 8 Term Rep. 455. 72. An affidavit to hold to bail made

by the administrators of a person who died before the passing of the bank act, need not negative a tender in bank notes to their intestate. Percy v. Powell. 3 Bos. & Pull. 6.

73. Semb. That persons suing as administrators need not in any case negative such tender to their intestate. 3 Bos. & Pull. 6.

74. If a defendant on being informed that a bailable writ has been issued against him voluntarily give a bailbond, he cannot afterwards object to the insufficiency of the affidavit to hold to bail. Norton v. Danvers. 7 Term Rep. 375.

75. Such an objection cannot be taken advantage of after plea. Levy v. Duponte. 7 Term kep. 376, n. 76. Nor after notice of executing a writ of inquiry on a judgment by default. Desborough v. Copinger. 8 Term Rep. 77.

77. Nor after perfecting bail above (in C. P.) Chapman v. Snow. 1 Bos. & Pull. 132.

78. So in king's bench. Jones v. Price. 1 East, 81.

79. Nor after merely putting in bail.

D'Argent v. Vivant. 1 East, 330. 80. In both courts the affidavit to hold to bail is to be considered as part of the process to bring the defendant into court; an irregularity in it must be taken advantage of in the first instance; and may be taken advantage of before bail put in, or appearance entered: so such irregularity may be waved by a defendant, and is considered as waved, when he has voluntarily done an act, submitting to such process. 1 East, 334. 81. An affidavit to hold to bail, stating that the defendant was "justly indebted to the plaintiff in 100l. upon and by virtue of a certain bill of exchange drawn by the defendant, and long since due and unpaid" is sufficient, without stating in what character the bill was due to the plaintiff, whether as payee or indorsee. Bradshaw v. Saddington. 7 East, 94.

82. An affidavit to hold to bail, only stating that the defendant was "indebted to the plaintiff in 541. for goods sold and delivered (not stating by the plaintiff to the defendant) and as the acceptor of a bill of exchange," is insufficient. Perks v. Severn. 7 East, 194,

83. An affidavit to hold to bail, only stating, that the defendant was in

debted to the plaintiff for goods sold and delivered, (not saying by the plaintiff to him, the defendant,) is insufficient. Cothraw v. Hagger. 8 East, 106. 84. An affidavit of debt made by the plaintiff, residing in a foreign country, before a foreign magistrate, whose signature to the jurat and his authority in that country to administer oaths and take affidavits were verified by a proper affidavit in this country, is a sufficient foundation for a judge's order to hold the defendant to special bail: and this, notwithstanding the stat. 12 G. 1. c. 29. which requires an affidavit of the cause of action by the plaintiff; by which must be understood such an affidavit taken before a eompetent jurisdiction in this country, whereon, if false, perjury might be assigned for that part of the statute is restrictive of the acts of plaintiffs only, and not the courts. But any person making, or knowingly using a false affidavit so made abroad for this purpose is guilty of a misdemeanor in attempting to pervert public justice, and is punishable by indictment. Omealy v. Newell. 8 East, 364.

85. An affidavit to hold to bail, stating that the defendant was indebted to the plaintiffs so much for interest money, under and by virtue of an agreement, is not sufficient. Brook v. Trist. 10 East, 358.

II. In Penal Actions.

1. "That he has good reason to suspect that the fact was done by A. and B." is an insufficient affidavit in an action against the hundred under 9 Geo. 1. c. 22. William King v. The Inhabitants of the Hundred of Bishop's Sutton, in Hants. 2 Str.

1247.

2. An affidavit to hold to bail on the lottery act 27, G. 3, c. 1. should specify the nature of the offence, and aver that the defendant has incurred the forfeiture; but the of

3.

fence need not be described circum stantially nor is the plaintiff obliged to swear that the defendant is indebted to him to the amount of

the penalty. Davis v. Mazzinghi. 1 Term Rep. 705.

It is sufficient if the affidavit, on which the defendant is holden to bail for an offence against the said act, shew the nature of the of fence, without stating the particular circumstances of it. Watson v. Shaw. 2 Term Rep. 654. 4. It is sufficient if it state that the defendant" insured or caused to be insured," &c. 2 H. Black. 17. 5. A plaintiff who ues for penalties under the said act must make an affidavit previous to the suing out of the writ, specifying the amount of the penalties sued for. King q. t. v. Horne. 4 Term Rep. 349.

6. In an action for the penalty of the lottery acts, it is sufficient if the process state the sum to which they amount as the debt, without describing it as arising from penalties, or specifying the offence, provided there be an affidavit for that purpose and it is also a sufficient compliance with the stat. 33, G. 3, c. 62, sect. 38. to state in the process that the plaintiff is "appoint"ed by the commissioners of his majesty's stamp duties to prose"cute." King q. t. v. Pacey. 2 H. Black. 601.

7.

8.

66

t. v.

An affidavit to hold to bail for penalties forfeited by unlawful insurances against the lottery act, 22 G. 3, c. 47, may include several offences, and need not state that the defendant received any consideration for making the insurances. Holland q. Bothmar. 4 Term Rep. 228. Where several persons have separately incurred penalties for printing illegal schemes of the lottery, a separate affidavit must be filed against each of them; and if they be all joined in one affidavit, the irregularity is not waved by their putting in bail; but the court on mo