But an affidavit stating that defendant is indebted to In 101. as he plaintiff in 101. as he computes it, was held to be suf- computes it. ficient. 2 Burr. 1032. Moultby v. Richardson. On an affidavit that the defendant is indebted to the plain- As appears by tiff Rollin in a certain bailable sum of money, by virtue of the bill, not a bill of exchange, indorsed by the payee for the plaintiff, good. "as appears by the said bill and indorsement," and that Mills, the defendant, accepted the bill, but had refused payment, that the bill was protested, and, though the affidavit was positive that the defendant had accepted the bill, court ordered common bail, because the affidavit only states that the defendant is indebted as appears by the said bill. Rollin v. Mills, 1 Wils. 279. So affidavit made by plaintiff's book-keeper, that he Book-keeper. was indebted in 34001." as deponent verily believes," is insufficient. Str. 1226. Claphamson v. Bowman. An affidavit to hold to bail on the lottery act, 27 On lotteryGeo. 3. c. 1. should specify the nature of the offence, and act, should specify nature aver that the defendant has incurred the forfeiture: but of the offence. the offence need not be described circumstantially; nor is the plaintiff obliged to swear that the defendant is indebted to him to the amount of the penalty, because any other informer might previously have commenced the action. Davis v. Mazzinghi, 1 Term Rep. 705. If the action be founded on an act of parliament, and If act be mis that be misrecited in the affidavit, it will be bad; as recited. calling it an act passed in the 27 Geo. 3, when it passed in the 22 Geo. 3. But the party is not bound to set forth the year at all when the act passed. 2 Term Rep. 654. Watson v. Shaw. tive. The affirmation of plaintiff alleged, that the defendant Affidavit to was indebted to him in 50001. " for so much money had hold to bail must be posi"and received of this affirmant, and for which he has not "accounted." The court held, that the last words, rendered it not positive. Champion v. Gilbert, 4 Burr. 2126. The affidavit must be as strong and positive as an affidavit to change the venue. The case of assignees, Assignees, &c. &c. are exceptions. Per Builer J. Mackenzie v. Mackenzie, excepted. 1 Term Rep. 716. On an affidavit that the maker and indorser of a promissory note are indebted to the holder, neither can be held to bail. Hussey v. Wilson, 5 Term Rep. 254. Maker and indorser in one affidavit. A defendant being held to bail, on an affidavit of a debt Affidavit due due from three defendants, as surviving partners of another from three, deceased, was discharged, on filing common bail, the de- declaration due from three alone. If affidavit be argumentative only. As appears by master's allocatur. Indebted in, &c. and for claration being " for a debt due from the three defen "dants alone." Spalding v. Mure and others, 6 Term Rep. 363. Nor if it state, that on such a day the plaintiff gave defendant notice to quit on, &c. and that the latter held over notwithstanding, by reason of which, and by force of the statute, an action had accrued to plaintiff to recover from defendant 1081. &c. Per Curiam ;-The affidavit does not state positively defendant is indebted in so much, it is only argumentative. Wheeler v. Copeland, 5 Term Rep. 364. An affidavit stating that the defendant " was indebted "to the plaintiff in 541. for goods sold and delivered." without stating by the plaintiff to the defendant, is insufficient. 7 East, 194. 8 East, 106. An affidavit to hold to bail, that defendant is indebted to the plaintiff in a certain sum, as appears by the "master's allocatur," is not sufficiently positive, because he should have sworn, "the debt is still due." Powell v. Portherch, 2 Term Rep. 55. That defendants are indebted to plaintiff 2451. 5s. for money lent by plaintiff to defendants, for the use of which defen- another, and for which defendants promised to be accountdant promised able, and to repay or cause to be paid, or secured to plaintiff in three days from the day of plaintiff's so advancing and lending the same. This affidavit is defective. Jacks v. Pemberton, 5 Term Rep. 555. to be ac countable, insufficient. If affidavits state two sums to be due to two separate plaintiffs bad. Assignee of bond. Executor. If an affidavit to hold to bail state two sums to be due from the defendant, to two separate plaintiffs, though only one writ be sued out, the court will set aside the proceedings on that one writ. Dean and Chap. of Exeter v. Seagell, 6 Term Rep. 688. As to Affidavits made by the Plaintiff as Assignee, When an assignee of a bond swore, that the obligor was indebted in 901. for principal and interest, as he believed, this was held sufficient. Loveland and Bassett, 1 Wils. 232. If an executor swears to the books of the testator, and that he believes them to contain a true account, and that the debt is still unpaid, it is sufficient to hold to special bail. But an affidavit by an executrix, that the defendant was indebted to her testator (so much)" as appears "by the books of her testator," was held insufficient. Str. 1219. Waldron v. Fransham. davit must In the case of Seldon, executor, v. Baker, 1 T. R. An executor, 48. Mr. J. Buller said, The general rule is, that there &c. in his affimust be a positive affidavit: the cases of assignees, ex- swear as to ecutors, &c. are by way of exception to that rule; then his belief, to a party claiming under that exception, must shew a case hold to bail. where it has been allowed. In those cases, if he swears that he believes it to be true," this is as much as he can do, because the transaction in general does not come within his own knowledge. But there is no case where the affidavit has been allowed to be sufficient to hold the defendant to special bail, without adding the belief of the party who made it. The affidavit was, "indebted "to him as executor for money had and received by de"fendant, as receiver of the rents, and as appears to deponent to be the true balance upon the steward"ship account by him delivered to this deponent, and "from the several articles of disbursement therein con"tained." He ought to have said, that he believed the account to be true; therefore held insufficient. 66 If assignees of a bankrupt swear that the defendant Assignees is indebted, "as appears to them by the last examina- of a bankrupt. "tion of the bankrupt, as they believe, and that they "have not received the debt or any part of it, and "that they believe it to be still due," it is sufficient. 4 Burr. 1992. Barclay, assign. v. Hunt. of bankrupt, If there be two or more assignees of a bankrupt, and An affidavit one only make the affidavit of the debt being due, it will of debt by be sufficient, for the consequence of not allowing it to be one assignee good, would be to prevent the assignee arresting defend- sufficient. ant at all, unless the other would assist him. Swayne al. v. Crammond, 4 Term Rep. 176. An affidavit on the lottery-act, 22 Geo. 3. c. 47. Lottery act. alleged that defendant had promised and agreed to pay to several persons by name, divers sums of money, on certain events and contingencies, relating or applicable to the drawing of certain tickets or numbers, &c. without adding, that defendant " had taken "and received any money in consideration of such pro"mises," was held good. Holland qui tam v. Bothman, 4 T. R. 228. Where seve ral have separately incurred penalties for printing illegal schemes of the lottery, a separate affidavit must be made and filed against each of them, one affidavit, the irregula rity is not waived by putting in bail; but the court will stay proceedings against all. Where the Court have staid the Proceedings on the Lottery Act for Want of Affidavit. As an affidavit hath been held necessary to be made previous to the issuing of a writ for penalties under 27 Geo. 3. c. 1. sect. 2. and specifying the amount of those penalties, in consequence many actions were brought, and the present plaintiff filed one affidavit in order to hold the four defendants to bail, and after sued one writ against all, but declared separately, as for separate offences. Defendants put in bail. A rule was obtained, " "why the writ should not be quashed," because the affidavit, which is the first step to be taken under the 27 Geo. 3. c. 1. and if they be sect. 2. and without which the writ cannot be sued out, cannot be supported. The objection was, that each defendant was obliged to take a copy of the whole affidavit, whereas three-fourths of it do not relate to him; and that the office copy was necessarily stamped with four stamps, when one would have been sufficient, if the affidavit had affected only one defendant. Per Cur. This case comes within the above statute, which speaks of such penalties against certain former acts, as touch and concern lotteries. If so, it was necessary that there should be an affidavit previous to the suing out of the writ. This affidavit cannot be supported for the reasons urged by the defendant's counsel; they are not to be harrassed with the unnecessary expence of taking copies of those parts of the affidavits which relate to offences not imputed to them individually. From this, it necessarily follows, that the writ must be quashed, because the words of the act are positive, that no process shall be sued out until an affidavit has been first made and filed. And though in ordinary cases, a party may waive taking advantage of any trifling irregularity in the mode of proceeding, by not objecting in the first instance; the defendants in this case could not waive this objection, because the court are to take care that an action on a penal statute shall not be commenced in a mode prohibited by that statute. Rule abs. Goodwin qui tam v. Parry, 4 Term Rep. 577. It was stated in the shewing cause, that defendants had waived taking advantage of it, by putting in bail. Affidavit on lottery act must not be intituled. An affidavit to hold to bail under the lottery act, must not be intituled; because there is no cause in court. King q. t. v. Cole, 6 Term Rep. 640. see rule, Trin. 38 Geo. 3. 7 Term Rep. 454. by which it is ordered " that affida"vits of any cause of action before process sued out to "hold defendants to bail, be not intituled in any cause, "nor read, if filed." When Persons cannot object to the Insufficiency of Affidavit. If defendant voluntarily give a bail-bond, he cannot Voluntarily afterwards object to the insufficiency of the affidavit to giving bail. hold to bail. Norton v. Danvers, 7 Term Rep. 375. Nor after plea pleaded. Levy v. Duponte, Ibid. 376, n. Nor after plea. Nor after notice of executing a writ of inquiry, on a Nor after a judgment by default. Desborough v. Copinger, 8 Term notice of inRep. 77. quiry. Nor after per fecting bail. before or at the Must be filed court will disbefore, or at filing common time of issuing Nor after perfecting bail above. See 1 B. & P. 132. C. P. The affidavit of the debt must be filed time of the issuing out the writ, or the charge the party from the arrest, on bail. writ. THE FORMS OF AFFIDAVITS. For money lent and ad In the King's Bench.(a) A. B. of maketh oath and saith, that C. D. is justly indebted unto this deponent, in the sum of 201. vanced. for money lent and advanced by this deponent to the said C. D. and at his request; and this deponent further saith, No tender. that no tender or offer hath been made to this deponent to pay him the said sum of 201. or any part thereof, in any note or notes of the governor and company of the bank of England, expressed to be payable on demand. Supposing the affidavit be made that the defendant is indebted to the plaintiff in 201. 14s. 6d. then the affidavit should be thus: 66 And swears to 201. 14s. 6d. or a In 201. 14s. 6d. for money lent and advanced by this If plaintiff deponent to the said C. D. and at his request, this deponent further saith, that no tender or offer hath fractional (a) An affidavit not intituled in any court, but only with the words "by the court," written at the bot tom of the jurat is not sufficient. Molling v. Poland, 3 Maule and Selwyn, 157. Rex v. Hare, 13 East. 189. K part. |