446 CHAPTER II. OF THE AFFIDAVIT TO HOLD TO BAIL, ARREST, BAIL ABOVE, AND DECLARATION IN ASSUMPSIT UPON A Affidavit to hold In order to arrest a party in an action on a bill of to bail. exchange or promissory note, the statute 12 Geo. 1. c. 29. requires that an affidavit should be made and filed of the cause of action, and by the terms of that act the sum due on the instrument must amount to £10, which regulation is not altered by the 51 Geo. 3. c. 124. s. 21. which renders it necessary that the debt shall be £15, in other cases. This affidavit must be certain and explicit, and so positive, that in case in were untrue, the party making it would be liable to an indictment for perjury'. It has been well observed, that the strictness required in these affidavits is not only to guard defendants against the consequences of perjury, but also those who make the affidavit against any misconception of the law; and that the leaning should always be to great strictness of construction, where one party is to be deprived of his liberty by the act of another. There has been some contradiction in the cases in the King's Bench and Common Pleas3. But from the most recent cases it appears, that the practice of both the courts is now uniform*. In an action against the maker of a note, or the acceptor of a bill, who are primarily liable, it is necessary to state in the affidavit, that it was due, or at least to shew the date and when it was payable, for other 2 Tidd. 6th ed. 186. Per Lord Ellenborough in Taylor v. Forbes, 10 East. 316. and see Bradshaw v. Saddington, 7 East. 95. Tidd. 6th ed. 186, 7. And see Machu v. Fraser, 7 Taunt. 173. to bail. 447 OF THE DECLARATION IN AN ACTION ON A BILL, &C. wise the party being primarily liable, the affidavit that Affidavit to hold he was indebted might be true, and yet the note or bill might not be due at the time of swearing the affidavit, because the maker of a promissory note, or the acceptor of a bill, becomes debtor immediately, though the instrument be payable at a future day; it being debitum in præsenti solvendum in futuro', And the same point has recently been determined in the court of Common Pleas, in an action against the aoceptor of a bill. But in an action against the indorser of a bill or note, who can only be liable in default of the acceptor or maker, and whose liability is only collateral and conditional, it has been decided not to be necessary to shew that the bill or note is over due, for this case has been distinguished from the former, because the party being described as an indorser, and as such only a collateral security, could not be indebted, unless the bill had become due and been dishonored 3. The affidavit must also shew in what character the defendant became a party to the bill or note, whether as drawer, acceptor, or indorser, for otherwise he might not be liable on the bill, but merely as a guarantee, in which case the nature of his engagement must be stated, as the statute requires an affidavit of the cause of action, and the distinction is between the omission of the plaintiff's title to sue, and the character in which the defendant stands. And therefore an affidavit, stating that the defendant was indebted to the plaintiff in the sum of £95 as the indorsee of a certain bill of exchange, drawn by one T. Winslow, without stating how the defendant became liable, whether as accepter or indorser, was held insufficients, and Per Bayley, J. in Jackson v. Yate, 2 M. & S. 149. and see the same distinction taken in Holcombe v. Lambkin, 2 M. & S. 475. Machu v. Fraser, 7 Taunt. 171. 3 Per Bayley, J. Jackson p. Yate, 2 M. & S. 149.-Davison v. March, 1 New Rep. 157.-Holcombe v. Lambkin, 2 M. & S. 475. Humphries 7. Williams, 2 Marsh. 231. 6 Taunt. 531. S. C. 3 Id. ibid. to bail. Affidavit to hold the term indorsee is descriptive of the relation of the plaintiff to the bill and not of the defendant'. Of the Arrest. But it is not necessary for the affidavit to specify in what particular character the debt is due to the plaintiff, whether he claim as payee or indorsee, for if he had no interest in the bill on which he could sue the defendant, he would be guilty of perjury, and would be liable to an action for maliciously holding the defendant to bail, and though it was once decided otherwise in the court of Common Pleas3, yet it has been since observed by that court, that such decision took place without the case of Bradshaw v Saddington having been cited, and in the latest case that court appears to have determined to adopt the practice of the court of King's Bench. Where a party to a bill has signed his Christian name only with initials, and application has been made to him for his name, and he has refused to disclose it, and all possible enquiries have been made to ascertain it without effect, the affidavit and proceedings may state only his initials, and the court will not discharge him on common bail, or set aside the proceeding. In order to hold to bail in trover for a bill of exchange, it should be stated in the affidavit that such bill remains unpaid, as well as the value. The usual forms of affidavits are given in the Appendix. When a married woman has been arrested as the acceptor of a bill, at the suit of an indorsee, the court will not order the bail-bond to be cancelled on an affidavit, that the drawer when he drew the bill knew the defendant to be a married woman, because her so accepting a negotiable security, and enabling the 'Noted in Machu v. Fraser, 7 Taunt. 172. 2 Per curiam, in Bradshaw v. Saddington, 7 East. 94. 3 Balb v. Batley, 1 Marsh. 424. 6 Taunt. 25. S. C. ← Machu v. Fraser, 7 Taunt. 171. and see Humphries v. Williams, 2 Marsh. 231. in which Gibbs, C. J. adverted to the distinction between the plaintiff's title and the defendant's liability. 5 Howell v. Coleman, 2 Bos. & Pul. 466. 6 Clark v. Cawthorne, 7 T. R. 321. drawer to impose upon a third person, is in effect re. Of the Arrest, presenting herself as a single woman to the injury of a third person, but she must find special bail, and plead her coverture, or bring a writ or error'. And where a woman was arrested as the drawer of a bill of exchange, at the suit of an indorser, the court refused to discharge her, on the affidavit of a third person, that she was a married woman; and in all cases it should seem that a feme covert, applying to be discharged from arrest, must found her application upon her own personal oath of the fact of coverture, and not upon the affidavit of another 2. An indorser of a bill of exchange may be bail for the Bail, drawer in an action against him upon the same bill, though it be objected that he is inadmissible, inasmuch as the plaintiff's security will not be increased by the recognizance of the indorser, who is already liable to the plaintiff on the bill. And it has been recently determined, that if a party become bail in two separate actions against different parties, on the same bill, it is sufficient for him to swear, that he is worth double the amount of the sum sworn to in one action, and that it is not necessary for the bail to swear to double the amount in both actions*. In an action on a bill of exchange, check, or pro- The declaration. missory note, if between the original parties, it is at the option of the plaintiff to declare either upon the instrument itself, or upon the consideration for which it was given; but in the case of remote parties, as the indorser against the acceptor of a bill, or the maker of 'Pritchard v. Cowlan, 2 Marsh. 40.—Tidd. 6th ed. 201, 2.-Jones v. Lewis, 2 Marsh. 385. 7 Taunt. 55. S. C. 2 Jones v. Lewis, 2 Marsh. 385. 7 Taunt. 55. S. C. The declaration. a note, and where independently of the bill, there is no privity of contract between the parties, the instrument itself must be declared on, adding such of the common counts as the evidence may probably support; but it is always advisable to declare on the instrument itself, as then in case of a judgment by default, the amount of the damages are referred to the master, to be computed by him; but if the declaration do not state the bill, the plaintiff must execute a writ of inquiry'. Count stating the bill, &c. The declaration, or count, in which the bill, check, or note, is set forth, necessarily varies in point of form, according to the parties by, and against whom, the action is brought. In the Appendix will be introduced all the different forms which usually occur in practice, and notes to each will be subjoined, explanatory of the proper mode of forming the declara tion in each case. With respect to the venue, as bills of exchange and promissory notes, like bonds, are bona notabilia wherever they happen to be, the plaintiff has a right to lay his venue in any county; and the court will not, at the instance of the defendant, change it upon an affidavit that it was really made in a different county. And if an action be bonâ fide brought on a promissory note, the plaintiff may retain the venue, though the action be also for other causes; and the court will not restrain the plaintiff from proceeding in the county he has elected for the other causes. But it would not suffice to retain the venue, that the plaintiff should introduce a count upon a promissory note, which either did not exist, or in respect of which there was no subsisting cause of action. And as in the case of an action on a bond, if very special grounds for changing the venue be laid before the |