
    Joseph Mickle vs. Allen Baker.
    No special order for hail need be endorsed upon a writ, where the piaiiitiff swears to a particular sum due upon the rescission of a contract.
    Tried before Mr. Justice Gantt, at Kershaw, November' Term, 1822.
    A SUMMONS was issued by the plaintiff against the defendant, charging that the defendant was indebted to the plaintiff #57, and interest, for money had and received.
    
    To this process was attached, an affidavit, signed and sworn to according to law, in the following words-u Personally appeared before me Joseph Mickle, who, on oath, saith he drew air order on Capt. D. Grafton, in favor of Mien Baker, for fifty-seven dollars, which order has been accepted and paid, as Baker says, by said Grafton, and that the consideration for which the order was drawn/was a horse, valued at fifty-seven dollars, which proving to be unsound, was returned to the seller Baker, and again received by him'; and that the said Baker is justly indebted to said Joseph for money had and received, fifty-seven dollars, and that he is a transient person.”
    
    
      No order for bail was endorsed on the process, but the sheriff arrested the defendant, and took bail.
    On motion, the presiding judge ordered the hail to be discharged, on the ground that there was not an order for bail by a Judge or Justice of Quorum, endorsed on the process.
    The plaintiff moved to rescind the said order to discharge the bail, on the ground that no special order for bail was necessary to authorize the sheriff to arrest, and that the arrest was legal, and the bail bound, and therefore the bail was improperly discharged.
    
      Levy 4’ McWillie, for the motion.
    
      J. C. Carter, contra.
   Mr. Justice Richardson

delivered the opinion of the court:

In order to hold a defendant to hail, without a special order, under the act of 1769, (P. L. 273,) it is requisite that the affidavit should state a. specific sum due, for or upon what due, and that it had arisen from a contract express or implied, as the claim must be in the nature of a debt.

The affidavit in question states $ 57 due, being the price of the horse, returned and accepted by tlie defendant ; which acceptance raised an implied contract to return the price.

Supposing then the facts true as sworn to, the former contract for the sale of the horse had been rescinded, and the price remained in the hands of the defendant, as holder of money to the use of the plaintiff. It became a debt. The affidavit was therefore sufficient without a special order, and the motion is therefore granted.

Justices Huger, Noil and Johnson, concurred-  