
    
      David Kerr vs. Henry Phillips.
    
    Where a plaintiff resides in a foreign country, an affidavit made by his agent here, that he, the agent, “is informed and believes” that the defendant is indebted to the plaintiff, &c. is sufficient to authorize an order for bail.
    As a general rule, an affidavit to hold to bail must be distinct and positive in stating the existence of the debt or other cause of action. Where, however, the affidavit is made by one suing in the right of another, as an executor or administrator, the assignee of a bankrupt, or a corporate officer suing for a debt due the corporation, or by an agent of a creditor resident abroad, the affidavit need not state the existence of the debt in terms of absolute assertion, but will be sufficient if it distinctly aver the belief of the deponent as to its existence.
    
      Before Frost, J. at Spartanburgh, Fall Term, 1845.
    This was a motion to have an exoneretur entered on the bail bond taken in this case. The bond had been taken in pursuance of an order of the clerk of the court, that the defendant be held to bail. The motion was made on the ground that the affidavit, on which the order for bail was granted, was insufficient. The plaintiff was a citizen of Virginia, and the affidavit was made by his agent. His Honor granted the motion, and the plaintiff appealed.
    Henry, for the motion.
    
      Leitner, contra.
   Caria, per Evans, J.

This was a motion to have an exoneretur entered on the bail bond taken in this case, which was granted by the circuit court, on the ground that the affidavit was insufficient to authorize the order for bail. The affidavit is in these words, viz:

South CaRolina, )
Spartanburgh District. $
Personally appears before me, G. W. H. Legg, who makes oath that he is the agent of David Kerr, and that Henry Phillips is indebted to the said Kerr, as he is informed and believes, in the sum of five hundred and sixteen dollars and four cents, balance due on his bond, besides interest. The following is a copy of said bond. “ On demand, we, or either of us, promise to pay to David Kerr, his heirs or assigns, six hundred and fifty dollars and 72 cents, current money of Virginia, for value received ; to which payment well and truly to be made, we hereby bind ourselves, jointly and severally, our heirs, executors and administrators, as witness our hands and seals this 15th day of January 1844.
Signed. HenRY Phillips, [seal.]
Henry B. Miller, [seal.]”
That said bond has the following credits indorsed on it, viz: “Cr. the within by account due on books at settlement to July 18th 1844, one hundred and nineteen dollars sixty-eight cents. ($119, 68.)
Signed B. P. Larew.”
“ Received of Mr. Morrison one pump, fifteen dollars, January 1st. 1845.”
Said bond has also the following credit indorsed upon it, which this deponent is informed and believes is incorrect, unjust, and to which said bond is not entitled, viz: “ The within bond is entitled to a credit for $275, to take effect at the date thereof, being the price of property bought from the within named Phillips & Miller, as per their bill handed to me.
B. P. Lakew,
for David KeRR.
Jany. 15, 1844.”
This deponent further states, that he is informed and believes, that the property mentioned in the last credit was not delivered to the said Kerr, or his agent, and that the said bond should not be credited with it, which will leave, as above set forth, a balance due on the said bond of five hundred and sixteen dollars and four cents, besides interest.
G. W. H. Legg, Agent
for David Kerr.
Sworn to before me, )
17th October, 1845. j¡
H. J. Dean, Not. Pub.

There is no doubt as to the rule, that where the payee makes the affidavit, it must be direct and positive in stating the existence of the debt or other cause of action.” The rule is thus stated in Tidd and Sellon and in Petesd. on Bail, 142,. and in oui own case of the Treasurers vs. Barksdale, 1 Hill, 272; but to this general rule there are exceptions in favor of those who sue in autre droit, as executors and administrators, the assignees of bankrupts, corporate officers suing for a debt due a corporation, or an agent of a creditor resident in a foreign country. In these cases, as is said in Petersd. 145, the deponent, not having a personal knowledge of the debt, cannot be expected to swear to its existence in terms of absolute assertion, but his belief must be distinctly averred. In Lee vs. Sellwood, 9 Price Exch. R. 322, the affidavit was made by an agent, who swore that the defendant was indebted to the plaintiff £400 for use and occupation. It was decided that he need not set out the means b.y which he had attained his knowledge; and Graham, B. said it was not necessary to swear to more, under the circumstances ; and Garrow, B. speaking of some of the cases which had been cited, said they had proceeded, on a critical nicety, that he would find a difficulty, were he called on, to agree to.

In Bland vs. Drake, 1 Chitty R. 165, the affidavit was made in England by an agent, who swore that the plaintiff had recovered in New South Wales, by a judgment of the highest court of judicature in that colony, a judgment against the defendant, which was still of force and unsatisfied, as the deponent verily believed; and Best, J. said, “ I should be glad to know, if this affidavit is not sufficient, how can a better affidavit be framed by a person residing here as the agent of another abroad 'l I think if an agent in England swears that he believes the debt to be due,” that is sufficient. To the same effect is the case of Deleissline ads. Heyle, an abstract of which is found in Rice Dig. 97. There cannot, I think, be a doubt that an agent may be allowed to make an affidavit of the debt, and it would seem, from the authorities above quoted, that he need not state how he derived his knowledge of the fact. In the case of the Treasurers vs. Barksdale, Mr. Young, who made the affidavit, does state why he knew or believed the debt was due, but this, it seems, was unnecessary. It does not seem to be doubted, according to the English cases, that it is sufficient for the agent to swear to the existence of the debt and his belief that it is unsatisfied. In the case of Lee vs. Sellwood, the agent swore that the defendant owed the plaintiff £400 for use and occupation ; and in Bland vs. Drake, that the plaintiff had recovered judgment in New South Wales against the defendant. In both of the cases, and especially in the latter, how could the agent know the fact, except on the information of others. He was resident in England, and could not, of his personal knowledge, know'that a judgment had been rendered in a remote foreign country. In this case, the agent swears that he is informed and believes that the defendant is indebted, and so forth. Is it not obvious that, in substance, he swears to as much as the agent did in the case of Bland vs. Drake. The difference consists in the manner of stating the fact. One swears that a fact is so, which he could know only from the information of another, whilst the other states it according to the truth, that “he is informed and believes.” These refined distinctions would often defeat the ends of justice, and would be, as was said by Garrow, B. in the case of Lee vs. Sellwood, to proceed on such critical nicety as it would be difficult to agree to, and would, in general, preclude the possibility of an agent’s making the affidavit. It seems to me, that if the affidavit can be made by the agent, he must be allowed to state it as matter of belief, according to the truth, and not of absolute assertion.” It is objected that the affidavit must be such as perjury may be assigned on. This is conceded; but perjury may be assigned on an affidavit “ that he is informed and believes,” as well as where he swears positively to the truth of the fact. In neither case would mere disproof, as that the defendant did not owe the debt, be sufficient, but the oath must be wilful and corrupt. Nor do I consider there is any thing in the objection that a plaintiff, who is unwilling to incur the risk of making a false affidavit, may employ a bolder agent to swear to his belief founded on the information derived from the plaintiff himself. The thing is possible, but such an unscrupulous plaintiff would not, in general, hesitate to make a sufficient affidavit himself. The rules of law cannot be iramed to guard against the possibility of evil, and if such a plaintiff and agent are to be found, the end would be readily obtained by swearing that the debt once existed, and his belief that it was still unpaid, which, according to the cases above quoted, would be sufficient. Besides, I do not understand that the rule goes further than to allow the agent to make the affidavit as to his belief, in those cases only where the plaintiff resides in a foreign country, as was the fact in this case. The plaintiff was a citizen of Virginia.

A majority of this court are oí opinion the affidavit is sufficient, and the motion is granted.

Richardson, O’Neall and Butleb, JJ. concurred.

Frost, J.

dissenting. The requisites of an affidavit to hold to bail are, that it should be direct and •positive, that the plaintiff’ has a subsisting cause of action; and, therefore, if it be merely by way of argument or reference to books or accounts, or as the party making it believes, it will not, in general, be sufficient.” 1 Tidd Pr. 182. “ Where the plaintiff sues as executor or administrator, or as assignee of a bankrupt, it is sufficient for him, or the clerk of the testator, to swear that the defendant is indebted, (fee. as appears by books, <fec. and as he verily believes.” 1 Tidd Pr. 182. These are exceptions from obvious necessity, because a positive oath cannot be made by the plaintiff.

It is admitted that the affidavit may be made by an agent or third person. But if so made, the requirement that it should be direct and positive, is not dispensed with. In McKenzie vs. McKenzie, 1 T. R. 716, Ashurst, J. says, “ the affidavit to hold to bail must be positive, and nothing ought to be left to inference;- ” and Buller, J. it is absolutely necessary that the affidavit on which a defendant is held to bail, should be positive.” In Jennings vs. Martin, 3 Burr. 1447, the court held that the Act “ required a positive oath of the debt.” In Pieters vs. Luytjes, 1 B. & P. 1, it was ruled to be sufficient that the agent should swear positively to the debt, without stating his agency. In Claphamson vs. Bowman, 2 Stra. 1225, the plaintiff’s book-keeper swore that defendant was indebted to plaintiff in £3,400, for money had and received to the use of the plaintiff, as deponent verily believes,” and it was held insufficient. In Van Morsell vs. Julian, 1 Wils. 231, the plaintiff resided abroad, and had sent an account current, verified by his own affidavit, to his agent. The agent, re-fering to this account current and affidavit, made oath that he believed the oath of the plaintiff and'the account current were true.' The affidavit was held to be insufficient. In a similar case, reported in a note to Bland vs. Drake, 1 Chitty R. 165, Dampier, J. discharged the bail, saying “this affidavit, with the production of the documents, might have been sufficient to have induced a judge to make an order for holding the defendant to bail; but clearly without such an order, the proceeding was irregular.” In Bland vs. Drake, the affidavit was made by an agent. Holroyd,, J. says, swearing to’ belief merely, will not do.” It was objected to the affidavit made by a third person, in Brown vs. Davis, 1 Chitty R. 161, that it did not state the connection between the deponent and the plaintiff. Best, J. held that as the allegation in the affidavit, that the defendant was indebted to the plaintiff in a certain sum, rendered the party deposing liable to an indictment for perjury, if false, it was unnecessary to describe himself as plaintiff’s agent. The affidavit must not only affirm positively the debt, but also that it is a subsisting debt. Accordingly, in an anonymous case in 1 Wils. 121, a third person made affidavit of the defendant’s indebtedness, i£as appeared by an account stated under defendant’s own hand;” it was ruled to be insufficient, with the remark, “ the account may be discharged, for any thing this person knows.” For the same reason, in Rollin vs. Mills, 1 Wils. 279, the affidavit was held to be insufficient, which added, “as appears by the said bill.” A distinction is taken in affidavits made by third persons, depending on the circumstance, whether the plaintiff is in the jurisdiction or abroad. In Munro vs. Spinks, 8 T. R. 284, the plaintiff was abroad, and the deponent stated his belief that a tender in bank notes, required by an Act of Geo. 3d. had not been made; while in Cass vs. Levy, 8 T. R. 520, the plaintiff was in England, and the same statement was made; in the former case it was held sufficient, in the latter not.

In Peck & Hood vs. Van Evour, 1 N. & McC. 580, Johnson, J. considers the certainty required in the affidavit as a security to the citizen against unjust arrest, by subjecting the deponent to an indictment for perjury if it be false. In the Treasurers vs. Barksdale, the affidavit stated that the defendant had acknowledged and renewed the original note, which deponent, who was the attorney of the plaintiff, held for him; and that the renewed note had never been out of his possession; and that no payment had been made to him, and he believed none had been made to the plaintiff. Here was a positive affirmation of a debt, and the strongest possible presumptive proof that it was subsisting at the time of the action brought.

The affidavit in this ease merely affirms that the deponent, agent of the plaintiff, is informed and believes that the defendant is indebted to the plaintiff; and, in ascertaining the sum, excludes a credit on the instrument made by another agent, because unjust, as deponent is informed and believes. It does not explain the nature or duration of the. deponent’s agency, nor state any circumstance to give weight to his belief of the defendant’s indebtedness. No acknowledgment of the debt by the defendant is stated, nor even that the instrument copied is signed by the defendant ; it does not appear, from any statement in the affidavit, nor by any proof accompanying it, whether the plaintiff was in the State or abroad, to explain the necessity of the deponent’s agency, and excuse the affidavit of the plaintiff himself. The deponent only affirms that he is informed and believes, that is, believes only on information, that the defendant is indebted to the plaintiff. Who was the deponent’s informant; what his character, interest, or means of knowledge, does not appear. If it were the defendant, the statement would have been of a confession or acknowledgment. It may have been the plaintiff, who may have employed an agent, to evade the consequences of perjury in procuring a malicious arrest. Nor is it shewn how long the information was received before the affidavit was made. In the interval, the debt may have been “ discharged, for any thing this person knows.” The affidavit makes no direct, positive statement, nor presents a single fact in support of the deponent’s belief of indebtedness. It is altogether inconclusive, and the oath superfluous. No assignment of perjury can be made or proved; for it could not be shewn the deponent had not been informed by any person, and no proof can negative his statement of belief.

The requirement that the affidavit shall contain a positive and direct statement of a subsisting debt, is most reasonable and proper. The subjection of a party to arrest and imprisonment, on process for the recovery of a pecuniary demand, confers on the creditor a large and dangerous power. The exercise of it should not be permitted without restraint or responsibility. The least restraint should be a direct and positive affidavit of a subsisting debt; and the least responsibility should be a liability to indictment for perjury in case of its abuse. These are no impracticable1 or difficult conditions to the creditor; they are the least a citizen may demand for the security of his personal liberty. The objection is that, in some cases, such an affidavit cannot be procured. The effect of the decision is to dispense with such an affidavit in all cases. The result is, that to remedy the inconvenience which may sometimes be experienced for want of the necessary proof, it is dispensed with altogether, and the security of personal liberty is surrendered to the ácci-dental exigencies of credit.

A brief review of the history of arrest for civil injuries will enforce tlié necessity of vigilance against its abuse, as well by the example of the ancient jealousy of the common law for personal liberty, as b.y the experience of the mischiefs and oppressions which followed a relaxation of the security on which it was at first allowed.

At common law, the person of a defendant was not subject to arrest for injuries unaccompanied by force; nor even for injuries accompanied by force, by a capias ad respondendum, without security given by the plaintiff to prosecute his suit with effect. The capias must have been founded on an original writ. This was sued out of Chancery; of which there were two forms, designated a praecipe and si fecerit te securum. In both, the command to the sheriff to proceed against the defendant was provisional, “if the plaintiff shall give'security of prosecuting his claim.” 3 Bl. Com. App. 2, sect. 1, and App. 3, sect. 1. For injuries unaccompanied with force, by either of these forms the sheriff might enforce the appearance of the defendant, by a distringas of his goods and of the profits of his lands. Here the process in such cases ended ; the defendant, if he had any substance, being stripped of it; and if he had none, it was deemed useless to pursue him further. But in cases of injury with force, if the distringas proved ineffectual to coerce the appearance of the defendant, a capias issued to arrest and imprison his person. . This process was first extended to actions of account by the statute 52 H. 3, c. 23, P. L. 27; and to debt and detinue by 25. Ed. 3, c. 17, P. L. 34; and to all actions on the case by 19 H. 7, c. 9, P. L. 44. In the mean time, the substantial securities anciently required for the suing out of the original writ were disused, and for them were substituted the imaginary persons of John Doe and Richard Roe ; and the amercement of a plaintiff for a false clamor remains only a curious form in modern judgments. By the practice of the courts, the defendant having been arrested on the allegation in the capias of an injury vi et armis, the plaintiff was permitted to prosecute for any less forcible injury. The mischiefs of this practice are forcibly presented in the statute 13 Car. 2, c. 2, P. L. 76. The Act is entitled “ for the prevention of vexations and oppressions by arrests,” (fee. and recites the great complaint of the realm that “ many good subjects have been arrested on general writs of capias not expressing any particular or certain cause of action, and thereupon kept prisoners for a long time for want of bail, though, in truth, there has been little or no cause of action ; and that those arrests were many times procured by malicious persons to vex and oppress defendants, or to force from them unjust compositions for obtaining their liberty; and by such practises men were daily undone and destroyed in their estates, without possibility of having reparation, the actors employed in such practises having been (for the most part) poor and lurking persons, and their actings so secret it had been found very difficult to make discovery and proof thereof.” For remedy of which growing evils and mischiefs, it is enacted that no person arrested by force of any bailable writ, wherein the certainty and true cause of action is not expressed particularly,” shall be compelled to give security for his appearance, in any penalty or sum exceeding £40. But the statute proved ineffectual for the prevention of vexations and oppressions, since a malicious person might still have issued a capias, expressing particularly a specific cause of action, for any amount, which might be altogether fictitious, and elude the provisions of the statute and liability for a malicious arrest, by the employment of poor and lurking persons.” This great defect in the process of the law continued in the English courts until the enactments of 12 Geo. 1, c. 29, and 5 Geo. 2, c. 27. Before the making- of these statutes, a defendant might have been arrested in civil actions for any sum of money, however trifling, and to any amount however considerable, without any affidavit of its being due; 1 Tidd Pr. 164. By the latter of these statutes it is provided that in all cases where the plaintiff’s cause of action shall amount to ten pounds or upwards, an affidavit shall be made and filed of such cause of action, and the sum specified in such affidavit shall be indorsed on the back of the writ; for which sum the sheriff shall take bail, and no more.’

The Act of Assembly of 1769, P. L. 268, for establishing courts, recites, among other subjects for amendment in the law, that defendants may be often harrassed by being obliged, as they now are, to give bail whenever personally arrested, though there be really little or nothing due to the plaintiffs in the actions, and the same may be groundless,” and enacts that, “no person (except transient persons) shall héreafter be held to bail, for any sum less than fifty pounds current money, and no person shall be held to bail on any writ of capias ad respondendum, for debt, unless an affidavit shall be made before, and attested by, some judge or justice of the peace, and indorsed on, or annexed to, the writ, before the service thereof, of the sum really due,” <fec.

Thus, after long experience of the mischiefs which followed the disuse of the common law security against groundless and malicious arrests, the Act 1769 designed to prevent them, by requiring the verification by affidavit of the sum really due to the plaintiff, before the defendant should be arrested. It is worthy of observation, how, with the increase of wealth and the extension of credit, the jealousy for personal liberty has abated and its defences been impaired and reduced. Instead of the substantial guaranties for the effectual prosecution of his claim, required of the plaintiff at common law, before he might, by an arrest of the defendant’s person, or even by a distress' of his goods, coerce him to appear and answer the plaintiff’s demand, an affidavit of any irresponsible person, it may be of the plaintiff himself, is deemed sufficient. The reflection is not directed against the Act of 1769 as inadequate to its design. In past experience, no serious grievance has been manifested. But the security provided can only be maintained by a strict enforcement, in substance and effect, of the proof the Act requires. If the plaintiff be not required to furnish satisfactory proof of the alleged debt, in the full, certain and explicit statement of facts from which the indebtedness may appear to the court, and that not only by a person credible, but also attesting from the personal knowledge the rules of evidence require, the security is dissipated. A cardinal principle of evidence requires the.greatest degree of certainty of which the fact to be proved admits. Hearsay information and belief of a fact capable of positive and direct proof, are clearly inad- « missible. An affidavit is ex parte proof. As proof, it is subject to the rules of evidence. A person who has been convicted of perjury or other infamous crime, is not competent to make an affidavit. “ An affidavit must set forth the matter positively, and all material circumstances attending it, that the court may judge whether the deponent’s conclusions be just or not.” It should be so clear and positive that an indictment for perjury may be maintained on it. Bac. Abr. Tit. Affidavit.

The highest necessity enforces the observance of the rules of evidence, and of the requisites of an affidavit, when it is made to procure bailable process. If, as in this case, the agency of the person who makes the affidavit' does not appear, except in the designation appended to his signature, which agency, for ' any thing apparent to the court, may be, by the deponent, limited to the act of deposition ; who does not disclose the nature, extent or duration of his agency, while he swears off the acknowledged act of another agent in the receipt of property as a credit on the bond; who does not state a single fact in support of the charge of indebtedness by the defendant to the plaintiff, but affirms it altogether on his information and belief without the slightest reference to the sources of his information, by which the justice of his conclusions may be tried, and the assertion of his belief be extricated from the doubt the whole statement suggests, whether it is the result of a simple credulity, or of a vicious promptness to credit and affirm whatever may be necessary to the case; •whose affidavit may he true in the whole extent of its vague and credulous statement, and yet the defendant not owe the plaintiff any thing;, and may be altogether untrue, and yet be attended with no criminal responsibility — to permit an arrest on such an “ affidavit of the sum really due to the plaintiff,” is a mockery of the security the statute professes to afford.

Wardlaw, J. concurred.  