
    GENERAL COURT,
    MAY TERM, 1798.
    ANONYMOUS.
    The question was, whether a bond, note, bill of exchange, &c. is sufficient to hold the defendant to bail without an affidavit of the debt.
    Chase, J. It appears to me, that the statute of 12 George II. e 29, (1725,) does not relate to the question before the court.
    The question is as to the evidence the court will require of the cause of action to induce them to rule the defendant to give special bail.
    The statute of George relates to arrests, and provides what shall be done previous to the arrest.
    If the cause of action amounts to 1QÍ. in the superior, ©r 4QSo in the inferior court, affidavit shall be made and fded 0f suc{t caaSe of action, and the sum specified in the affidavit shall be endorsed on the writ, for winch sum ¿¡1(? s¡,erjff s(ia¡¡ take bail. In case the affidavit and endorsement required are not made, the sheriff shall not arrest the defendant, but serve him with a copy of the process; which proceeding is in the nature of a summons.
    The affidavit which is made previous to the arrest, is the affidavit upon which special hail is required, and if defective the court will not receive a supplemental affidavit, because the act of George requires a full oath previous to the issuing the process, that defendants may not be harrassed — 2 Sir a. 1157 — determined two years after the statute.
    The affidavit under the act must be positive, and not by reference to something else — -2 Sira. 1209, 1219,1226.
    The act requires an oath of a subsisting debt at the time of issuing out the process — 2 Stra, 1270. TFils. 231. Burr. 655, 1032.
    The law and practice, as to arrests and holding to special bail in our courts, obtained long before the statute of George.
    
    A person can be arrested in all cases without any’ affidavit or declaration of the plaintiff’s cause of action, and it is the sheriff’s duty to take a bail bond to the amount of 8000 pounds of tobacco.
    By the act of 1715, c. 46, sec. 3, in an action of trespass on the case the sheriff cannot take bail for more than 8000 pounds of tobacco, unless a declaration is sent with the writ.
    The act of assembly recognizes and sanctions the general practice as to arrests and taking bail bonds, and provides only for particular cases. This act passed ten years before, the statute of George.
    Our practice is independent of the statute of George: and that statute has never been extended or adopted by our courts.
    Wherever our courts rule a defendant to special bail, they require some evidence of a subsisting debt.
    A bond, note, bill of exchange, ike. is prima facie evidence of a subsisting debt for the purpose of ruling bail; and the court on a motion fol* bail will not inquire into the merits, nor require plenary proof as on a trial.
    This practice prevailed long before the statute of George, and ever since, without interruption, and I know of no decision of our courts against it, before the late determination in Baltimore county court.
    The case in 1 Salk. 100, (11 William III.) decided by Holt, I think warrants and supports the practice of our courts.
    
      It was an action of debt on bond, and the defendant was required to give bail, who opposed it, alleging the bond was obtained by duress. The court said they would not inquire into the merits on a motion for bail, and held the defendant to bail. No affidavit was produced in this case. It was debt on bond, and we may suppose ;tbe bond was produced.
    I consider the practice of our court reasonable, and warranted by the decision in Salkdd, per Lord Holt. No hardship, injustice or inconvenience, has resulted from it, and I am for adhering to it.
    The statute of George has not been adopted, and has no relation to our practice.
   The whole court concurred in opinion with Judge Chase, and the defendant was ruled to gi ve special bail.  