
    PARKER and GANTZ against OGDEN.
    OH CERTIORARI.
    Affidavit for bail, must state cause of action, and be filed before writ issue.
    The defendant, a citizen of New York, was arrested on a napias ad respondendum, in June last, in the county of Middlesex, and in virtue of our act of Assembly, Pat. 348, held to bail on the following affidavit:
    
      
    
    A supplemental affidavit was made the 31st October, and also counter affidavits.
    A rule had been obtained on the part of the defendant, [*] calling on the plaintiff to show cause why the defendant should not be discharged on common bail. [108] This cause was called on its turn in the paper, when Mr. Van Arsdcde and Mr. M’ Whorter, on the part of the defendant contended, that the original affidavit was defective, and wholly insufficient to hold the defendant to bail.
    1st. That it ought not to have been entitled. 1 Stra. 704
      
    
    2d. That it contained no sufficient certainty to whom the debt was due, that “ indebted to plaintiffs ” had no legal or precise meaning; there were no plaintiffs named in the affidavit : but in case there had been, there were no plaintiffs in existence, no suit having been commenced; it might as well have said, indebted to creditors, complainants, or demandants.
    3d. That the affidavit was not filed before, or at the time of issuing process. 2 Will. 225; 1 Bacon, 328; act of Assembly, Pat. 348.
    
    4th. That the affidavit does not contain the cause of action. Barnes’ Notes, 109; 1 Bacon, 326.
      
       2That this was not only required by our act of Assembly, Pat. 343, before cited, but that it was the uniform practice in England, under a similar statute; that the only difference between our act, and the English statute, was an allowance of taking affidavits abroad, and not requiring positive oath of the debt, but to the best of the deponent’s belief.
    5th. Uncertainty as to the sum of $2000, or more. They then contended that the original affidavit being defective, the defect could not be cured by supplemental or additional affidavits ; they admitted that the Common Pleas in England would, in certain cases, to explain an ambiguity in the original affidavit, admit supplemental affidavits; but the King’s Bench would not, 2 Will. [*] 226, nor would it suffer counter affidavits. 1 Will. 335
      
       That as far as the court had adopted the English rules of practice, they had adhered to the rules of the King’s Bench; that our act of Assembly, Pat. 360, § 42, which enacts, “ that every court and judge, shall take the fact as sworn to in the affidavit, to hold the party to bail without going into the merits,” was predicated on the practice of the King’s Bench; that even if supplemental affidavits could be admitted, yet that the one produced could not be read, no notice having been given of taking it; nor was it taken before a judge or commissioner of this court, in conformity to the rules of the court; but if read, it was insufficient.
    1st. Because the affidavit, although it states the notes to be now due, yet that it does not state that they were due on the 28th June, at the time the arrest was [109] made, which they contended was necessary. 1 Wil. 339; 2 Stra. 1270.
    
    
      2d. Because, by a counter affidavit, (which, if supplemental affidavits are permitted to be read, ought also to be read,) one note for $600, was not due at the time of the arrest on the 28th June last; nor did all the notes, with the interest taken together, amount to $2,000. On the whole this was a question affecting personal liberty, which, by the benignity of our law, was always favored, they trusted the court would order the defendant discharged, on filing common bail.
    
      Mr. Isaac H. Williamson, for the plaintiffs,
    contended, that the objection on the ground of the original affidavit being entitled in the cause, was a mere formal objection, and depended in England on a positive rule of the court. That an affidavit having become necessary to hold the defendant to bail, might be considered as the commencement of the action, and in that point of view, the entitling was necessary and proper; that the original affidavit was sufficiently certain to show, that the defendant [*] was indebted to the plaintiffs; that as our act permitted affidavits to hold to bail, to be taken abroad, and before justices of the peace, in cases where the plaintiffs were without counsel, too strict a hand ought not to be held over them. That the act of Assembly did not require the affidavit to be filed before, or at the time of issuing process; and that no evil could arise from the present practice of filing it at the term to which the writ was returnable.
    [Pennington, J. — May not the defendant be arrested on a false affidavit, and the plaintiff, holding the affidavit in his hand, refuse to file it, and thereby escape punishment for his perjury, and yet, the defendant kept in gaol until the ensuing term.]
    Some rule of court may prevent any evil arising from that source. As to the objection, on the score of the affidavit’s not containing the cause of action, Mr. Williamson said, that tlie laxed stale of our practice did not require a cause of action to be specifically stated; that the uniform practice had been otherwise. That however defective the original affidavit might be, yet those defects were abundantly cured by the supplemental affidavit now produced. That the Common Pleas in England, were in the habit of admitting supplemental affidavits, Barnes, 100, 2 Blac. Rep. 850, and he saw no reason why this court should not follow the same practice. He understood the rule to be, that [110] when the original affidavit was so defective that perjury could not be assigned on it, then its defects cannot be supplied by supplemental affidavits; but in other cases they may. 2 Wil. 224. The affidavit in this cause, if not sufficient of itself, as he had before contended, yet it was such as perjury might be assigned on it; and, therefore, according to the doctrine in 2 Wil. its defects might be aided by a supplemental affidavit. As to the objection, on the ground of the money not being all due at the time of issuing process, that subject could not be brought into controversy, as our act of Assembly had interdicted all contradictory affidavits. That no objection could arise against reading the supplemental affidavit on the ground of want of notice, [*] or officer before whom they were taken. That the supplemental affidavit, like the original, did not require notice; and that the act of Assembly admitted affidavits to hold to bail, to be taken before a notary public in another State, an officer before whom the affidavit in question was taken; and that it being a supplemental affidavit, made no difference, it was still an affidavit to hold to bail. On the whole, he trusted that the plaintiffs would not be deprived of the means of obtaining their debt, by the discharge of the defendant.
    
      
       See 6 Term Rep. 640; 7 Term Rep. 321, 434; 1 Bos. and Pull. 26, 227.
      
    
    
      
       See 1 Sellons Practice, 114. Doug. 467. 6 Term Rep. 13.
      
    
    
      
       See also 1 Blac. Rep. 192. Douglas, 437. 2 Blast, 457.
    
    
      
       See 7 Term Rep. 454.
      
    
   Kirkpatrick, C. J.

— Said, that he put his opinions on two points: First, That the affidavit ought to contain the cause of action, and to state it with it with so much particularity, as that it may appear, not only that there is a debt, but that there is a debt actually due, for which au arrest may lawfully be made. Second, That the affidavit should be filed before the defendant is arrested; that this is required by the act of Assembly, and that for the purpose of prosecuting the plaintiff for perjury, in case it was false. He would not give any opinion as to the total exclusion of supplemental affidavits ; because, he was not prepared to say but that in some cases, supplemental affidavits might be proper. The reasons he had alreády stated, were sufficient, in his opinion, to discharge the defendant on common bail.

Rossell, J.

— Concurred in opinion, that the defendant be discharged on common bail.

Pennington, J.

— I am clearly of opinion, that the original affidavit is defective; the plain meaning and intention of the statute is, that no man shall be deprived of his liberty in a civil suit, until affidavit be made of the cause of action, and that affidavit filed. The affidavit must be in the custody of the law, [111] that if false, the person making it may be prosecuted for perjury: and also, that the defendant may have his remedy if insufficient. The affidavit must be such on which perjury may be assigned; it ought not to be entitled in any cause, no cause being depending at the time of taking it; [*] this affidavit refers to the plaintiff, but no plaintiff is even mentioned in the entitling the affidavit; it is too uncertain, perjury cannot be assigned on it. The cause of action is particularly required by the act of Assembly, to be set out in the affidavit, and the reason and propriety of the thing call for it; notwithstanding all this, if these defects can be cured by supplementary affidavits, it will be necessary to look into the additional affidavit taken in this cause. It is true that the Court of Common Pleas in England, admit supplemental affidavits to explain ambiguities in the original affidavit, but not to supply substantial defects; the Court of King’s Bench, whose practice we have adopted, will not even do that, and our practice act, prohibiting the court from going into the merit ■of the original affidavit is conclusive on the point; and shows that the learned judge, who drew the act, had the practice of the King’s Bench, in view. I am clearly of opinion, that the plaintiffs must stand or fall by their original affidavit, that being defective — and even defective as it is, not filed on, or at the time of arrest, that the defendant must be discharged on common bail.

Defendant discharged.

Cited in Peltier v. Washington Bkg. Co., 2 Gr. 257; Perry v. Orr, 6 Vroom, 297. 
      
       Vide 3 Halst. 34. 6 Halst. 196. Writ quashed.
     
      
       The Hon. William Patterson, Esq., deceased.
     