
    
      PENRICE vs. CROTHWAITE & AL.
    
    An order of bail will not be granted, on an affidavit, that the sum claimed is due to the af-fiant, as he be* neves.
    When the creditor makes the oath, it should be positive.
    
      Appeal from the court of the parish and ., r xr ^ , City OI J\iew-(jrleans.
    . , . M'Calebi ior the plaintiff!
    # This cause comes p . up upon two bills oi exceptions, taken by the appellant, to the opinion of the judge below : in discharging the bail upon the alleged insufficiency of the plaintiff’s affidavit; and in refusing to the plaintiff permission to file a supplemental petition.
    East’n District.
    
      May, 1822.
    The refusal to receive a supplemental petition, is not a ground of appeal.
    A suitor, who appeals from a part, cannot urge any other.
    Our law, on the subject of bail, is evidently derived from the English practice. The formalities and requisites for holding to bail, are specially pointed out by statutes, both in England and this state. In England it is necessary in an affidavit to hold to bail, to set forth the cause of action, and the residence of the affiant. 1 Titld, 154. And that the sum is £10, and upwards, &c. And, 12 Geo. I, c. 29, from the numerous decisions of the courts of Westminster-Hall, guided by the refined technicality of special pleading, the requisites under the English practice have been greatly increased, and it is now necessary to be particularly minute and careful in drawing up an affidavit, to hold to special bail. This refinement and technicality, under our liberal system of jurisprudence, has not as yet, and never will, it is hoped, be recognised by our laws, or insidiously introduced by our judges, whose great duty it is to look to the respective rights of the parties litigant, founded as they ⅛ ^ . may be, upon law and equity, and not to the manner and form in which they shall come.
    The language of our statute is plain and simple. I Martin’s Digest, 482. The plaintiff, in his petition, states the cause of his action to be “ for money had and received — the amount “ four hundred dollars.” So there can be no difficulty in saying that the sum was ascertained and specific; the language of the affidavit is positive, as to the amount really due, to the amount of money really had and received. The qualified part of the affidavit (as he believes) plainly has reference to the antecedent words — justly indebted to him. Knowlege derived from moral certainty must include a belief; for we cannot be impressed with conviction of the truth of a thing without believing it; when, therefore, I say, in emphatic words, I know its truth; I but express that belief, which is founded on moral certainty. This is the character of that belief, with which the plaintiff, in this cause, was impressed at the time he made the affidavit annexed to his petition ; he had no doubt that the defendants had received the money; he had no doubt that they had received four hundred dollars; he had no doubt, from a combination of facts, which had come to his knowlege, subsequent to the payment of the money to the defendants, by the agents of him, the plaintiff, that they (the defendants) had received the money wrongfully ; that they had practiced upon him fraud and deception; that property, which they had sold him, was property in which they had no title; so in justice and in equity, he was morally certain, he was under a sincere conviction (for which he appealed to heaven) that the defendants were indebted to him; supported too, by these great and immutable principles, that no man shall receive something for nothing; and that he, who wrongfully receives my money, shall be bound to restore it to me. Our statutes permit the agent or attorney in fact, to make affidavits to hold to bail — their information must be of a derivative character, as communicated from the principal, and creates that kind of belief, as defined by Doctor Johnson, and which is quoted by the counsel of the appellees. If the law is then formed for the protection of the rights and interests of the creditor, giving him a pledge that the debtor shall be forthcoming to answer his de-rnand ; if however, in giving this pledge or se- , . . , curity to the plaintin in action, it should previously require certain formalities, would it not be wofully inconsistent that more should be required in the one case than in the other ? That it should be said, you shall require security from your debtor, upon making affidavit to certain things: if you swear yourself, be sure you swear positively; if you employ an agent, why, he may swear as loosely as he pleases. That the statute of Louisiana, for holding to bail, declares that the citizen shall be deprived of his liberty. No, rather say, that the treacherous scoundrel shall be obliged to give security, upon the unqualified positive oath of the man who swears for himself, but only requires the simple belief of his friend or agent. All that the law requires, is a reasonable ground, upon which to draw the inference of an existing debt, and it will accord its remedy. The consequence of such a technical nicety will leave the door for perjury open; and such a construction of the law, will force the creditor to secure his debt, to swear in positive language; let his honest conviction and belief be what it may. And in the language of Lord Mansfield, it would be . . ,, using conscience, contrary to all conscience.
    The application for the discharge was also t0Q iate,for the defendants had plead in abatement, and also the general issue. 1 Tidd, 164.
    The counsel for the appellees seems to think that we have not a right now to go into the question embraced in the second bill of exceptions, because no exception was taken to the judge’s opinion on that point. If such be the fact, then we are too bold to call it a bill of exceptions. Upon reference, however, to the record, it will be found (we believe) that we did take an exception to the judge’s opinion. It will not be a sufficient ground to remand the cause, because we did not particularly state all the grounds of appeal.— If there appear sufficient upon the face of the record, to enable this court to decide, it will not send the cause back.
    The defendants could derive no possible advantage from such a course, the costs would be increased, and delay occasioned.
    The question certainly does not now come up for review, whether the original petition, filed by the plaintiff below, shews any cause of action whatever. The defendants counsel , _. , never attempted to dismiss us from court upon that ground. When the subject comes before the court (if it ever should) we will then endeavor to shew, that the original petition did contain a sufficient cause of action. The question now for the consideration of the court is, whether or not we should have been permitted to amend, by filing the supplemental petition, as exhibited upon the record. The object, as the court will perceive, was to detail more minutely the circumstances of time and place, and the manner in which the plaintiff’s money had come into the possession of the defendants. To these amendments the defendants’ counsel had no objection, but contended, a new cause of action was embraced in the supplemental petition. The judge be-lpw sustained the objection, and we are now compelled to come to the supreme court to accord to us the privilege under our liberal system of pleading, of amending our petition, by filing the supplement offered to the parish judge. The authority cited, we believe, will support us in the application. 1 Martin, 175. 2 id. 297. 2 id. 102. 3 id. 398.
    
      Watts, for the defendants.
    Swearing to belief is not a sufficient affidavit on which to hold a defendant to bail.
    i Tidd, 155. In point of form the affidavit should be direct and positive — that plaintiff has a subsisting cause of action — as the party making it believes, will not in general be sufficient.
    Our statute is much more strict. 1 Martinas Digest, 482. sec. 10. Title Arrest — “ In all actions,” &c. the plaintiff, in action, on making affidavit of the amount really due of his debt or demand, &c.
    He must swear to the amount, and that it is really due. Belief, says Johnson, is “credit given to something which we knowr not of ourselves, on account of the authority by which it is delivered.”
    The statute requires plaintiff should know it of himself The plaintiff sues neither as curator, assignee, nor makes the affidavit as agent, in which cases he might be supposed not to know personally the amount, or whether it was really due. His petition states the transaction to have been between himself and the defendants. He ought, therefore, to have sworn to it directly and positively, as a thing of his own knowlege. If he could not do so, . . it is not a case in which the law permits the party to be held to bail.
    The appellant has no right to go into the question, whether the judge properly or improperly rejected his amendment or supplemental petition. He took no exception to the judge’s opinion on that point. He has only alleged the discharge from bail as error in his petition of appeal. He cannot, therefore, now bring that point up for review.
    If it is permitted to be brought up, it is to be observed :—
    1st. That the original petition shews no cause of action whatever; for, to say that William paid James a sum of money, which James refuses to pay back to William, is no cause of action; for it is to be presumed William was indebted to James. Had the plaintiff alleged that he paid thro’ fraud, duress, or mistake, he might have had grounds fora recovery; but as it stands on the declaration, there is no cause of action, if the amendment contains a cause of action, it is certainly a new one, as there is none in the original petition — but the rules of court do not permit a cause of action to bein-troduced in the shape of an amendment-More particularly in an action commenced . . with bail process. The court below was therefore right in refusing to permit the amendment. Had the plaintiff acquiesced in the decision discharging bail, he might then, with more propriety, have asked to amend — if this court confirm the decision of the court below as to bail, plaintiff might then apply to amend, and if a reasonable and proper amendment is refused, he has his redress. But all courts will be more strict in refusing amendments where a party is held to bail, than in a case where he is simply cited to appear.
   Porter, J.

delivered the opinion of the court. The parish judge did not err when he decided that the affidavit to hold to bail in this cause was insufficient: swearing, that the defendant owes the affiant as he believes, is not that declaration which the law requires. It should be positive, when the creditor makes the oath.

We cannot go into the opinion of the court, on the refusal to receive a supplemental petition. It does not produce a grievance irreparable in this case, and, therefore, is not a decision from which an appeal lies, ante, 275. If it was, the plaintiff could not have it examined now; for, by his petition, it appears he has appealed alone from the judgment discharging the defendant out of custody.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be affirmed with costs.  