
    
      HARRISON COUNTY
    
    AUGUST TERM, 1817.
    
    Present — TAPPAN, President; ROBERTS and BOYD, Associates.
    
    PENROSE vs. EVANS.
    An affidavit to support a motion for special bail, must be positive that a sum is due, or that damages have been sustained to a certain amount. Swearing to belief, insufficient.
    Motion to discharge the. defendant on common bail, for the insufficiency of. the affidavit, and for that there is no endorsement on the writ, “ for what it was brought.”
    Beebe, for plaintiff.
    -for defendant.
    The affidavit made in this case was as follows:
    “ On the 18th day of August, 1817, personally appeared before me, Walter B. Beebe, a justice of the peace in and for said county, Thomas Penrose, who, being duly affirmed, deposeth and says, that he verily believes that John Evans, of said county, has converted to his own use a letter, in which this deponent believes was contained six hundred dollars or more, the property of the said Penrose, whereby he has sustained damage to the amount of one thousand dollars; and further says not,” &c.
   President.

As the statute law authorises the court to order special bail to be given, on the return of a summons, if the particular circumstances of the case require it, or the suit is brought on a bond, sealed bill, bill of exchange, note for the payment of a sum of money certain, or on any contract, on which the plaintiff or his agent shall file an affidavit that the sum due, or damages sustained, exceed seventy dollars, it will be sufficient to consider the question, whether the plaintiff is entitled to special bail in this case; because, if he is so entitled, it would not avail the defendant to obtain the object of his motion, if he would remain liable to be ordered to file special bail.

On this writ we are informed that the plaintiff intends to declare in trover for bank notes, which be believes have got into the defendant’s possession. The affidavit swears to a belief in facts which, if true, amount to a felony; but does it swear to any fact ? The whole substance of it is, that the plaintiff believes that the defendant has opened a letter, in which he further believes there was a sum of money, which had been taken by the defendant, vjhereby he has sustained damages. An affidavit for this purpose must be distinct and positive as to the sum due, or damages sustained, so that perjury might be assigned on it. The plaintiff may believe these things of the defendant on very slight evidence. We cannot estimate the credulity or incredulity of men, but must act on the evidence of facts; and as none are sworn to by the affidavit, it is not sufficient to hold the defendant to special bail. — Motion granted.  