
    *James Vance v. William Findly.
    In an action of assumpsit on an unnegotiable note, tlie plaintiff did not style Mmself assignee in the writ according to the A. A. of 1798, though he did so in Ms declaration. Defendant neglected to plead, and plaintiff obtained by default an interlocutory order for judgment. The Court refused to set aside the order for judgment; the next Court, on any other terms than that the defendant should put in an issuable plea and go to trial upon the merits.
    An affidavit to hold to bail must show how the debt arose, 
    
    This was an action brought on a non-negotiable note, by an assignee, pursuant to tho Act of Assembly of 1798, authorizing assignees of such notes to bring actions in their own names.
    The Act authorizes the assignee to bring an action in his own name, styling himself, in the writ to be issued, the assignee, &c. The defendant had not styled himself assignee in the writ, according to the requisitions of the Act; but in the declaration he stated himself to be assignee in the manner required in the Act,
    The defendant was held to-bail on an affidavit of the plaintiff, but it was not stated in the affidavit in what manner the defendant became indebted to the plaintiff.
    The defendant had entered an appearance, but neglected to plead to the declaration, and the plaintiff, according to the practice of our courts, took an order for judgment.
    The first term after the order for judgment was obtained, the defendant’s counsel moved the Court to discharge the bail, on the ground that the affidavit did not state how the debt arose.
    And also to set aside all the proceedings, on the ground of the variance between the writ and declaration above stated.
    The cause came before Mr. Justice Colcock, at Pendleton, Spring Term, 1819, who granted both the motions.
    *This was a motion to reverse the decision on both points,
    
      
      
        The following case was decided in the Constitutional Court at Columbia, November Term, 1819.
      Peck and Hood v. Ede Van Evour.
      Tried before Mr. Justice Johnson, at Columbia, October term, 1819.
      The defendant was field to bail on an affidavit made by tfie plaintiffs, in the following words: “ Personally appeared, Ephraim Peck, of the firm of Peck & Hood, before me, and made oath, that Ede Van Evour is indebted unto them in tfie sum of four hundred and twenty-six dollars and fifty cents,” without stating on what account tfie debt was due; and a motion was sustained in tfie Court below, to discharge tfie bail on the ground that tfie affidavit ought to state on what account tfie debt was due ; and this was a motion to reverse that decision.
      Tfie opinion of tfie Court was delivered fiy Mr. Justice Johnson.
      The Act of the Legislature on this subject provides that “no person shall be held to hail on any writ of captas ad respondendum for debt, unless an affidavit be made before, and attested by, some judge or justice of tfie peace, and endorsed on, or annexed to tfie writ, before tfie service thereof, of tfie sum really due;" P. L. 273; 2 Brev. Dig. 52; and it has been insisted in the argument, that it is sufficient to state the sum without stating on what account.
      When a law affects tfie liberty of tfie citizen, and is of doubtful construction, tfie writers of every age and every country agree that it ought to receive that construction most favorable to liberty. And the only security which tfie citizen has against being unjustly called on to find bail, is tfie penalty of tfie crime of perjury, and if we lose this hold there is none, and I think this would follow if tfie construction contended for should prevail; for if it be not necessary to state on what account tfie debt is due, and there was any debt due to tfie plaintiff, fie might make as many affidavits, and hold him to bail in as many actions, as tfie whole was capable of being split up into fractions, and would escape with impunity, as each affidavit would be literally *true. But this case itself furnishes, perhaps, tfie best practical illustration of the correctness of these observe tions. Tfie defendant was field to bail in another action, at tfie suit of tfie same plaintiffs, which, was brought to tfie view of tfie Court at the same time and for the same purpose, in which fie had been field to bail on a similar affidavit, and it was ascertained that that action was founded on a promissory note, made payable to William F. Bradbury or order, which had never been endorsed by him; that sum being much, less than that demanded in this, the plaintiff’s affidavit, would be covered by this debt if it really be due.
      Tfie word debt in tfie Act ought not to be construed technically, but as a general description of all demands arising out of contract; and it certainly was intended be so understood, for the former construction would lead to the ridiculous uncertainty, that a defendant could not be held to bail in any case, except the demand arose on a specialty; and if the latter construction prevails, it follows that it is necessary to state in the affidavit how the debt accrued, to enable the Court to see whether it was for such a cause as would entitle the party to recover, and determine his right to hold the defendant to bail.
      This view of the subject is, I think, clearly supported by the construction given to a British statute on the same subject; the end and aim of both are the same, to give a plaintiff, on the one hand, a lien on the body of his debtor as a security for his debt, and on the other, to protect a defendant from groundless and unjust imprisonment.
      It is true that there is some little difference in the phraseology of the two statutes, but there the utmost particularity and precision is required, and surely, in this country, where the liberty of the citizen is held so sacred, a similar construction ought to prevail. Vide 1 Sellon, 104. 1 Tidd. 157. M’Kenzie v. M’Kenzie, 1 T. R. 717. Jack v. Pemberton, et al., 5 T. R. 552. Polleri v. De Souza, 4 Taunton, 154.
      The motion must be discharged.
      Justices Coicock, Nott, Gantt and Richaedsow, concurred.
      
        S. D. Miller, for the motion. Nott and M’ Cord, contra.
      
      See also Cook v. Dobree, 1 Hen. Black. 10. Hubbard v. Pacheco, 1 do. 218. Archer v. Ellard, Sayer’s Rep. 109. Brook, et al., v. Twist, 10 East. 358. Coppinger v. Beaton, 8 T. R. 338. Cope, et al., v. Cooke, 2 Doug. 467. 2 N. & McC. 585. Rosenberg v. McKain, 3 Rich. 147. Tobias v. Wood, 1 McM. 103. Kerr v. Philips, 2 Rich. 199. Treasurers v. Berksdale, 1 Hill, 272; 2 Bail. 504, 3 McC. 313. R.
    
   The opinion of the Court was delivered by

Nott, J.

The act above mentioned does require a person of this description, bringing an action in his own name, to style himself an assignee ; 1 Brev. Dig. 90; 2 Faust, 215; and the defendant may require Mm to pursue that form, or take the advantage of his error in not doing so ; but he may waive that advantage if he pleases, or he may lose it by laches. If he intended to take the exception, he should have availed himself of the first opportunity that occurred to do so. He had entered an appearance; he was then called upon to plead to the declaration, which pointed out to him the variance. He might then have put in such plea as he supposed would bring the question properly before the Court; but he neglected to do so, and permitted the plaintiff to take a judgment by default. After judgment by default, he could put in no plea until that interlocutory order was rescinded; and by the rules and practice of our Courts, that order could be set aside upon no other terms than pleading issuably ; but no issuable plea would reach this question, because it was a mere matter of form, and not of substance.

It can scarcely be said, that this Act gave any new right or even a new remedy; because the party had a right, before, to sue in the name of the original payee. It only prescribes a new form,, or rather modifies the mode of proceeding. And this Court will not permit the justice of a case to be sacrificed to form, unless the inflexible rules of law require it. The decision of the Court below, on this motion, must, therefore, be reversed.

Davis, Solicitor, for the motion. Earle, contra.

On the other question, the Court entertain a different opinion. In the affidavit, the plaintiff states a debt due to him in his own right. In the declaration, he sets out a debt due to him as assignee. A security *is always entitled to know the extent of his undertaking. If the affidavit had shown what was afterwards diclosed in. the declaration, the bail might not have consented to sign the bond.

.The decision of the Court below, on this motion, is, therefore, affirmed.

Gantt and Richardson, JJ., concurred.

Johnson, J., dissented. 
      
       5 Stat. 330.
     
      
       Ante, 259; 2 McC. 455.
     
      
       1769, 7 Stat. 204, § 20.
     