it was held that an affidavit was not sufficient which was merely subscribed with the words " By the Court" at the bottom of the jurat and was not entitled "In the King's Bench." But in Bland v. Drake, 1 Chit. Rep. 165, 18 E. C. L. 57, an affidavit was held to be sufficient which was not entitled in the court, but purported at the foot to have been "sworn before John Young, Deputy Filacer."

Title of Cause.-It was at one time quite as common to entitle the affidavit in the cause, i. e., with the names of the parties, plaintiff, and defendant, as not to do so. Clarke v. Cawthorne, 7 T. R. 317. But by Reg. Gen. Trin. 37 Geo. III., 7 T. R. 450, the practice of entitling the affidavit in any cause was prohibited. See also Hollis v. Brandon, 1 B. & P. 36; Green v. Redshaw, 1 B. & P. 227, in which cases an affidavit to hold to bail was held bad because entitled in the cause, that is, "William Green, Plaintiff, against James Redshaw, Defendant." This was because no action was depending in the court at the time the affidavit was made.

1. Who may Make Affidavit.-The affidavit to hold to bail may be made by a third person in behalf of the plaintiff. Pieters v. Luytjes, 1 B. & P. 1; King v. Turner, 1 Chit. Rep. 58, 18 E. C. L. 30; Brown v. Davis, 1 Chit. Rep. 161, 18 E. C. L. 56. And it need state no connection between the deponent and the plaintiff. Pieters v. Luytjes, 1 B. & P. 1; Andrioni v. Morgan, 4 Taunt. 231; King v. Turner, 1 Chit. Rep. 58, 18 E. C. L. 30; Brown v. Davis, 1 Chit. Rep. 161, 18 E. C. L. 56.

2. Addition and Place of Abode.-The addition and true place of abode of the affiant must be inserted in the affidavit. Rules Mich. Term, 15 Charles II., K. B.; Jarrett v. Dillon, 1 East 18; D'Argent v. Vivant, 1 East 330; Polleri v. De Souza, 4 Taunt. 154; Vaissier v. Alderson, 3 M. & S. 165; Collins v. Goodyer, 2 B. & C. 563, 9 E. C. L. 179. There is no occasion, however, to insert the addition and place of abode of the defendant. 1 Tidd's Prac. (9th London ed.) 179. And it appears that there was no such rule in the Court of Common Pleas. 6 Taunt. 73.

It has been held sufficient within the above rule to describe the deponent as "of the city of London, merchant," Vaissier v. Alderson, 3 M. & S. 165; and the addition of "manufacturer" to the deponent's name has been deemed sufficient, Smith v. Younger, 3 B. & P. 550; and where an affidavit made by the plaintiff's clerk ran thus: "Aaron Brown, clerk to Launcelot Haslope, of America-square, in the city of London, ship-insurance agent," it was held to be a sufficient statement of the clerk's place of abode and addition, although at night he slept in another place, Haslope v. Thorne, 1 M. & S. 103.

A foreigner who has landed in the country for the purpose of making an affidavit to hold to bail may properly describe his place of abode to be in his own country, Bouhet v. Kittoe, 3 East 154; and a deponent who has been but a few days before discharged from prison, and by permission still continues to lodge there at night, having no other place of residence, satisfies the rule by describing himself as late of such prison; but a deponent who has left one place of residence and resides in another does not satisfy the rule by describing himself as late of the former, Sedley v. White, 11 East 528.

3. Affirmation by Quaker.—If the deponent be a Quaker, his affirmation is sufficient to hold defendant to special bail. Atcheson v. Everitt, Cowp. 382. See also Skipp v. Harwood, Willes 292, note b.

4. It is not necessary to give the addition and description of the defendant. 1 Tidd's Prac. (9th London ed.) 179.

5. Use of "In" for " Is."-Where in an affidavit the word "in" was used in place of the word "is," it was held that the affidavit was insufficient to hold to bail, because it contained no positive allegation of a debt, and a perjury could not be assigned upon it. Reeks v. Groneman, 2 Wils. 224.

6. Positive Statement of Existing Cause of Action.-The affidavit must be direct and positive to the effect that the plaintiff has a subsisting cause of action; and consequently if it be merely

by way of reference to books, or accounts, etc., or by argument, or that the party making it believes, etc., it will not in general be sufficient. Heathcote v. Goslin, 2 Stra. 1157; Rios v. Belifante, 2 Stra. 1209; Walrond v. Fransham, 2 Stra. 1219; Claphamson v. Bowman, 2 Stra. 1226; Collier v. Hague, 2 Stra. 1270; Anonymous, I Wils. 121; Van Morsell v. Julian, 1 Wils. 231; Rollin v. Mills, 1 Wils. 279; Griffith v. Williams, 1 Wils. 338; Pomp v. Ludvigson, 2 Burr. 655; Jennings v. Martin, 3 Burr. 1447; Bright v. Purrier, 3 Burr. 1687; Champion v. Gilbert, 4 Burr. 2126; Mackenzie v. Mackenzie, 1 T. R. 716; Powell v. Portherch, 2 T. R. 55; Williams v. Jackson, 3 T. R. 575; Wheeler v. Copeland, 5 T. R. 364; Read v. Randel, 2 Harr. (Del.) 327; Parker v. Og den, 2 N. J. L. 136; Woodfolk v. Leslie, 2 Nott & M. (S. Car.) 585; Nelson v. Cutter, 3 McLean (U. S.) 326. But an affidavit which states positively as to the indebtedness without detailing the source of knowledge is sufficient. Postly v. Higgens, 2 McLean (U.S.) 493. See also Moultby v. Richardson, 2 Burr. 1032; Mackenzie v. Mackenzie, 1 T. R. 717.

If, however, the affidavit is made by an agent on behalf of a principal who is absent from the country, it may be laid on information and belief. Kerr v. Phillips, 2 Rich. L. (S. Car.) 197. And where the plaintiff sues as the assignee of a bankrupt, or as an executor or administrator, it is sufficient for him to swear that the defendant is indebted, etc., "as appears by books and as he verily believes." Barclay v. Hunt, 4 Burr. 1992; Tonna v. Ed. wards, 4 Burr. 2283; Sheldon v. Baker, 1 T. R. 83; Swayne v. Crammond, 4 T. R. 176; Cresswell v. Lovell, 8 T. R. 418. But even in this case a mere reference to books unsupported by the party's belief is insufficient. Walrond 1. Fransham, 2 Stra. 1219; Sheldon v. Baker, 1 T. R. 83; Lowe v. Farley, I Chit. Rep. 92, 18 E. C. L. 37; Garnham v. Hammond, 2 B. & P. 298. See also Price 402; Tucker v. Francis, 4 Bing. 142, 13 E. C. L. 380. See also Read v. Randel, 2 Harr. (Del.) 327. And an affidavit "that defendant is

indebted to plaintiff in £450 as indorsee of a promissory note made by defendant," without stating the date of the note, or that it was payable on demand, or that it was due or payable at a day then past, is insufficient. Jackson v. Yate, 2 M. & S. 148; Holcombe v. Lambkin, 2 M. & S. 475; Edwards v. Dick, 3 B. & Ald. 495, 5 E. C. L. 495; Machu v. Fraser, 2 Marsh. 483. See also M'Taggart . Ellice, 4 Bing. 114, 13 E. C. L. 366.

A co-assignee of a debt, which arose out of bills of exchange in his own possession, may sue in the name of the original creditor and hold the defendant to bail on his own affidavit, swearing positively as to the facts required which are within his own knowledge, and to the best of his knowledge and belief as to such as are within the knowledge of his principal and co-assignee. Cresswell v. Lovell, 8 T. R. 418.

And an affidavit stating that defendant was indebted to a third person for goods sold and delivered in Holland, and that such third person had assigned the debt to deponent according to the laws of Holland, and concluding with the statement that the assignee of the debt might sue the debtor according to the laws of Holland, "as deponent is informed and believes," was deemed to be sufficient to hold the defendant to bail. Scuerhop v. Schmanuel, 4 D. & R. 180, 16 E. C. L. 192. 1. Amount for Which Defendant is Arrested.-Here should be inserted the sum for which the defendant is arrested, and it is the better practice not to add the words "and upwards." The plaintiff may recover more than he swears to, though he will not have the security of bail to a greater extent. 2 Chit. Pl. 5, note n.

Where one swears that a specific sum is due, besides interest, and sets forth the date of the note and the time of its maturity, the amount sworn to is the specific sum and no more. Jennings v. Sledge, 3 Ga. 128.

2. Description of Cause of Action-In General.-The words used in the description of a debt must depend upon the nature of the debt in the particular case. In general, however, it is

proper to use the language of the indebitatus counts, for which see the General Analytical Index to this work; but the plaintiff should take care to swear to the description of debt which he is certain to establish at the trial, for otherwise he may lose the security of bail even after verdict. Caswell v. Coare, 2 Taunt. 107. The affidavit should be certain and explicit as to the cause of action. Mackenzie v. Mackenzie, 1 T. R. 716. And so affidavits have been held to be insufficient in the following cases: where the affidavit stated that defendant was indebted in a certain sum without stating how the debt arose, Cooke v. Dobree, 1 H. Bl. 10; that defendant "was indebted to the plaintiffs in £200, upon promises," Cope v. Cooke, Doug. 467; that defendant was indebted on a balance of account, Polleri v. De Souza, 4 Taunt. 154; Eicke v. Evans, 2 Chit. Rep. 15, 18 E. C. L. 234. See also Perks v. Severn, 7 East 194; Cathrow v. Hagger, 8 East 106; Taylor v. Forbes, II East 315; Fenton v. Ellis, I Marsh. 535; Bell v. Thrupp, 2 B. & Ald. 596, 1 Chit. Rep. 331, 18 E. C. L. 99; Young v. Gatien, 2 M. & S. 603; Symons v. Andrews, Marsh. 317; Brown v. Garnier, 2 Marsh. 83, 6 Taunt. 389; Coppinger v. Beaton, 8 T. R. 338; Hughes v. Sutton, 3 M. & S. 178; Waters v. Joyce, 1 D. & R. 150, 16 E. C. L. 24; Jenkins v. Law, 1 B. & P. 365; Masel v. Angel, 6 D. & R. 15, 16 E. C. L. 251; Skeen v. McGregor, 1 Bing. 242, 8 E. C. L. 491, 8 Moore 107; Barnard v. Neville, 3 Bing. 126, 11 E. C. L. 63; Symons v. Andrews, 1 Marsh. 317, note a; Hulton v. Eyre, 1 Marsh. 315; Berry v. Fernandes, 1 Bing. 338, 8 E. C. L. 338, 8 Moore 332; Durnford 7. Messiter, 5 M. & S. 446.

Bill of Exchange.-An affidavit to hold to bail on a bill of exchange must state in what character plaintiff sues, whether as payee or indorsee. Balbi v. Batley, 1 Marsh. 424, 6 Taunt. 25; Humphries v. Williams, 2 Marsh. 231, 4 E. C. L. 360, 6 Taunt. 531. Contra, Bradshaw v. Saddington, 7 East 94, 3 Smith 117. And see, also, Machu v. Fraser, 2 Marsh. 483. And see Elstone v. Mortlake, 1 Chit. Rep. 648, 18 E. C. L. 190.

Bond. In an action on a money bond the affidavit should state that the defendant is indebted, etc., for princi

pal and interest due on a bond bearing date, etc., and made and entered into by the defendant to the plaintiff in the penal sum, etc., and conditioned for the payment of a certain sum and interest at a certain day now past. 1 Tidd. Pr. (9th London ed.) 184; Smith_v. Kendal, 7 D. & R. 232, 16 E. C. L. 282; Bosanquet v. Fillis, 4 M. & S. 330. But see Byland v. King, 7 Taunt. 275, 2 E. C. L. 275, 1 Moore 24. And an affidavit to hold to bail in an action against a surety on an arbitration bond must set out the condition and show that a demand for money was made on the principal required by the award. Armstrong v. Stratton, 7 Taunt. 405, 2 E. C. L. 405, I Moore 110.

Stipulated Damages. In an affidavit to hold to bail for stipulated damages both the agreement and the breach must be stated. Stinton v. Hughes, 6 T. R. 13; Wiledey v. Thornton, 2 East 409; Brook v. Trist, 10 East 358; Waters v. Joyce, 1 D. & R. 150, 16 E. C. L. 24; Jacks v. Pemberton, 5 T. R. 552; Macpherson v. Lovie, 1 B. & C. 108, 8 E. C. L. 47, 2 D. & R. 69.

In Trover.-It was formerly sufficient to make an affidavit that defendant had possessed himself of divers goods and chattels of the plaintiff, stating their value, which he had refused to deliver to plaintiff, but had converted to his own use. I Tidd's Pr. (9th London ed.) 186. But it has been held insufficient to say that defendant is indebted to plaintiff "in trover," Hubbard v. Pacheco, 1 H. Bl. 218; or that defendants possessed themselves of certain goods of the plaintiff and of other persons, 1 Tidd's Pr. (9th London ed.) 186; or that "the plaintiff's cause of action against the defendant is for converting and disposing of certain goods of the plaintiff to the value of £250, which he refused to deliver though plaintiff had demanded the same, and that neither defendant nor any person on his behalf had offered to pay the plaintiff £250 or value of the goods," Wooley v. Thomas, 7 T. R. 546. The affidavit should set forth in full the circumstances under which the defendant became possessed of the goods, their description and value, and the manner in which defendant converted them. I Tidd's Pr. (9th London ed.) 186.

1. This form was required by the

John Doe.2

South Carolina,

Spartanburgh District. (

Bank Acts, 37 Geo. III., c. 45, § 9; 37 Geo. III., c. 91, § 8; 38 Geo. III., c. 1,98; 43 Geo. III., c. 18. A defect in form, but not a total omission, in this part of the affidavit was aided by the last statute. 2 J. P. Smith, K. B. Rep. 156.

1. Notes of Bank of England. - The affidavit must contain a statement that defendant has not made a tender of the money in notes of the Bank of England, even though the affidavit be sworn to abroad, provided it is made for the purpose of being used in England. Nesbitt v. Pym, 7 T. R. 372, note c. And in Stewart v. Smith, cited in 1 B. & P. 132, note a, the same point is decided, although the affidavit had been made in Ireland only two days after the passage of the act.

2. Signature.The affidavit should be signed by the party making it, and it cannot be signed in a partnership name, as the partnership could not make an affidavit. Gaddis v. Durashy, 13 N. J. L. 325.

3. The Jurat-In General.-The affidavit may be sworn in court, or before a judge or commissioner of the court authorized to take affidavits, or before the officer who issues the process, or his deputy duly appointed for issuing process. 1 Tidd's Pr. (9th London ed.) 179. And in place of the words used in the text, the following may be used: "Sworn at the Bill of Middlesex Office (or, King's Bench Office) this first day of February, A.D. 1811, before (giving the officer's name)."

2 E. of F. P.-9

Where the affidavit is made by several persons their names must be writ ten in the jurat. Reg. Gen. Mich. 37 Geo. III., 7 T. R. 78.

When Made Abroad.-In Bosc v. Solliers, 4 B. & C. 358, 10 E. C. L. 356, the jurat to an affidavit of debt made by a foreigner was certified in the following words, which were held to be sufficient: "This affidavit was interpreted by Francis Chauvet, of, etc., in the county of Middlesex, professor of languages (he having first sworn that he understood the English and French languages), to the deponent, who was afterwards sworn to the truth thereof, at, etc., in the said county, before me, E. J. Boddy, deputy signer of the bills of Middlesex."

For forms of the certificate of authentication where the affidavit is sworn to without the state, see vol. 1, pp. 594, 633 et seq.

4. Description of Officer.-The omission of the words "Court of King's Bench" after the word "commissioner" has been held to not render the jurat defective. Kennet v. Jones, 7 T. R. 447. But where, in the Common Pleas, an affidavit of debt was sworn to before a commissioner in the country, without stating in the jurat that he was a commissioner, the affidavit was held to be insufficient although entitled in the court, and the court refused to allow a supplementary affidavit to be filed to aid the defect. Howard v. Brown, 4 Bing. 393, citing Rex v. Hare, 13 East 189, 1 M. & P. 22. 5. In Lowe v. Mayson, 3 McCord Volume II.