
    Hart against Faulkener.
    Where a judge, at liis chambers, on a rule to show cause of action, allowed the plaintiff to make supplementary affidavits, on which the defendant was held to bail, on a motion of the defendant, after-wards, for an exoneretur} on the ground of the irregularity of the judge’s order; it was held, that this was an. original application, and that counter-ni'hdavits on the part of the plaintiff were admissible. Where the first affidavit of the plaintiff, is insufficient, whether a supplementary affidavit, in order to hold the defendant to bail, is admissible? Qacere.
    
    JOHNSON, for the defendant,
    moved that an exoneretur be entered on the bail-piece, filed in this cause. The capias ad resp. on which the defendant was arrested, was returnable on the last day of November term. On the 27th November, an order was obtained and served on the plaintiff’s attorney, to show cause of action before the recorder of the city of New-Tork, on the first day of December ; and on that day, the plaintiff made affidavit, that the defendant was indebted to him in the sum of 2,100 dollars as the plaintiff verily believed, for goods sold and delivered; and for the further sum of 400 dollars, according to the best of the plaintiff’s judgment, for a breach of a simple contract. This affidavit being objected to, as insufficient, the recorder gave the plaintiff time to produce another affidavit; and on the 4th December, he made a second affidavit, that the present suit was brought to recover of the defendant, 2,100 dollars, due and owing to the plaintiff, for goods sold and delivered to the defendant, and also for damages for the breach of a simple contract, amounting, according to the plaintiff’s belief, to 400 dollars. This affidavit being also objected to, as insufficient, a third affidavit was made by the plaintiff, stating that the defendant was justly indebted to the plaintiff, in the sum of 2,100 dollars, for goods sold and delivered, &c. on which the defendant was ordered to be held to bail, in the sum of 3,000 dollars.
    
      J. Radcliff, for the plaintiff,
    offered counter-affidavits, which were objected to by the defendant’s counsel, but admitted by the court. The affidavits stated, that the defendant was justly indebted to the plaintiff in the sum of 2,100 dollars, for goods sold and delivered, &c. and in the further sum of 400 dollars, for damages, by reason of the non-performance of a certain agreement, &c. and that since the defendant had been held to bail, by order of the recorder of New-7'ork, he had offered to the plaintiff, in part payment of the balance due to him, an or- * der for 1,600 dollars, on the persons in whose hands the defendant had deposited the goods sold to him, and also offered to pay the balance that might be due to the plaintiff, and that the defendant had since absconded.
    
      Johnson observed,
    that according to the practice of the court of King’s Bench, an affidavit to hold to bail, after it was once made could not be amended, nor its defects cured by a supplementary affidavit; nor were counter-affidavits ever admitted to contradict it. The first and second affidavits of the plaintiff were clearly insufficient. It is true, that the rule of practice is different in the court of C. P. in England; but even there, a supplementary affidavit is not allowed where the original affidavit is bad for uncertainty; but this court follows the practice of the K. B. in cases not provided for by its own rules.
    
    
      Radcliff insisted,
    that as this was an original application to the court to exonerate the bail; counter-affidavits might be received as in any other case.
    
    
      
       l Sellon, 120. 1 Bac. Ab. 327 (B. 1.) Tidd’s K. B. Pr. 165.
      
    
    
      
      
         Tidd, 157. 1 Sellon, 112, 113.
    
    
      
      
        Sellon, 122.
    
    
      
      
         Ante, 235.
      
    
    
      
       4 Johns. Rep. 307.
      
    
   Per Curiam.

This is an original application to the court, and counter-affidavits are admissible, according to the established course of practice. The affidavit read on the part of the plaintiff, is positive as to the cause of action, and amply sufficient to hold the defendant to bail; and the amount as fixed by the recorder, is not unreasonable. The motion ought, therefore, to be denied, with costs.

Rule refused.  