
    *Isaac Tobias vs. James Wood.
    An affidavit to hold to bail, stating that the defendant was indebted to the plaintiff ‘1 in the sum of one hundred and forty-five dollars, on a note and due bill, bearing interest, ’ ’ was held to be a sufficient compliance with the Act, and an exoneretur on the bail bond was refused.
    Where a party swears that the defendant is indebted to him, he swears, in a legal point of view and in legal parlance, to a present debt that is due, and not a future one.
    Before O’Neaul, J., at Charleston, May Term, 1840.
    In this case the plaintiff issued a writ of assumpsit against the defendant ; and to hold him to bail, annexed to it the following affidavit:
    “The State of South Carolina. Personallyappeared before me, Isaac Tobias, who being duly sworn, maketh oath and saith that General James Wood is indebted to him in the sum of one hundred and forty-five dollars on a note and due bill, bearing interest, and that no part of which has been paid.
    I. .Tobias.
    Sworn to before me this 4th September, 1839.
    Abraham Moise.
    Under this proceeding the defendant was arrested and gave bail. The defendant moved, before me, to have an exoneretur entered on the bail bond, “ on the ground of the defectiveness of the affidavit. ” The motion was overruled, for the following reasons. “The Act of 1769, (P. L. 273, 1768,) Stat. 204, § 20, M., provides that no person shall be held to bail on any writ of capias ad respondendum for debt, unless an affidavit shall be made and attested by some Judge or Justice of the Peace, and endorsed on or annexed to the writ, before the service thereof, of the sum really due " Was the question res integra, as to the construction of this Act, I should say that an affidavit of the sum really due, without stating the manner in which the indebtedness arose, would be sufficient; for the difference in its phraseology from the English statute on the same subject, would justify that difference in the construction. But the cases of Peck and Hood vs. Van Evour, (1 N. & McC. 580, Note A,) ruled that the affidavit must not only set out the sum due, but also how it accrued; and to that I yielded my assent in the case of Saunders *vs. Hughes,
      
       as a means of protecting the liberty of the citizen. Does the affidavit here state both the amount due, and also , the manner in which the debt accrued ? I think it is manifest it does. It states that the defendant is indebted to the plaintiff in the sum of $145, on a note and due bill, bearing interest. No one can be mistaken about the manner of the indebtedness, after reading the affidavit. It was contended, with the usual ability and ingenuity of the defendant’s attorney, that the affidavit was defective, inasmuch as it did not show that the notes were due. I thought, however, that when the plaintiff swore that the defendant was indebted to him, he, in a legal point of view, and in legal parlance, swore to a present and not a future debt, and that therefore there was no defect in the affidavit.
    In the case of Woodfolk vs. Leslie, (2 N. & McC. 585,) the affidavit stated that the defendant was indebted to the plaintiff $360, as the assignee of a promissory note. In that case my brother Itichardson, referring to Peck & Hood vs. Van Evour, and to Sellon and to Tidd, stated the rule to bo “ that to hold a debtor to bail, the law requires that a specific sum of money shall be charged, and the cause of action plainly set forth in the affidavit.” “These indispensable requisites,” said he, have been strictly complied with in the affidavit before us.” Compare the affidavit in that case with the affidavit in this, and if there is any difference, it has escaped my attention. Changing the parties, Judge Richardson’s decision there might be used here.
    In Lowe vs. Mayson, (3 McC. 313,) the affidavits states that notes were found among the papers of Archy Mayson, deceased, by which it appears that Ramsey L. Mayson is indebted to the said Archy Mayson’s estate, $2100.88,” &c. Judge Johnson, who delivered the opinion of the Court in the case of Peck & Hood vs. Van Evour, delivered the judgment of the Court in Lowe vs. Mayson. After referring to the rule settled in Peck & Hood vs. Van Evour, he said, “ the affidavit in this case sets out in general terms the manner in which the debt arose, as far as the plaintiff can be supposed to be conversant with it; and if we regard the reasons of the rule, the objects arc as fully attained, as if the notes had been recited with the utmost minuteness. Neither the dates nor the number of the notes would enable the Court to judge of their legal efficacy, and if *the plaintiff has committed a perjury, the offence can as well be assigned on this affidavit, as if it had contained them, so that the whole object of the rule has been attained.” Paying a due regard to that decision would, it seems to me, supersede any difficulty in this case. The affidavit there makes no other allegation that the notes were due, than that by referring to them it appeared that defendant “is indebted” to the said Archy Mayson’s estate, &c. If any more precise allegation than that the notes were due, had been necessary, it would hardly have escaped the able counsel concerned, or the experienced Judge who decided that case. The plaintiff, as administrator, could not have asked any exception, in this behalf, in his favor, for he had the notes in his possession, and could therefore speak of them with certainty. In Saunders vs. Hughes, (2 Bail. 504,) the affidavit states that Col. Joseph Hughes, of the firm of William & Joseph Hughes, stands justly indebted to the plaintiff in the sum of $936.69, due on a note, &c. No objection was there taken to any want of certainty in setting out that the notes were due. I have looked through all the other subsequent cases, and have referred to the excellent digest of our decided cases, prepared by the defendant’s attorney, and I have not been able to find a case, or dictum, which requires an affidavit to set out more than is done in this case.
    See Kerr vs. Phillips, 2 Rich. 199. Rosenbury vs. McKain, 3 Rich. 149. An.
    
    The defendant renews his motion in the Court of Appeals to have an exonere,tur entered on the bail bond, and to reverse my decision on the ground “ that the affidavit is defective in substance, inasmuch as it does not contain any allegation that the notes were due.”
    
    
      Rice, for the motion,
    cited P. L. 273. Tidd’s Prac. 1 vol. 144, 145. 3 Chitty’s Prac. 333, 334, 335. Chitty, 331, 333, 334. Chitty on Bills, 572, 573 2 Maul. & S. 149. 7 Faust, 173—as to form of affidavit. Chitty’s Practice, Appen. Tidd’s Append. Archbold’s Forms, 8, 9, of the remedy when the affidavit is defective. 1 Tidd Prac. 164, 165. Peck vs. Van Eoour, 1 N. & McC. 580. 1 Rice’s Dig. 97. 3 McC. 318. 2 N. & McC. 585. 1 McC. 313. 2 Bail. 504.
    
      Moise, contra.
    
      
       1768. 7 Stat. 204, § 20. An.
      
    
    
      
      
         2 Bail. 514. An.
    
   * Curia, per

O’Neall, J.

In this case we are entirely satisfied with the decision below; and concur in it, for the reasons assigned by the Circuit Judge in his report to the Court.

The motion is dismissed.

The whole Court concurred.  