judge to believe it to be the defendant's intention to leave England, and the plaintiff at the time may have knowledge of other facts which would disprove the intention.

-." Or if

Jurat.] The jurat, if the affidavit be sworn before a judge, is thus:-"sworn at my chambers in Roll's Gardens, Chancery Lane, this day of 1842, before me, before a commissioner:-" Sworn at· in the county of 1842, before me,

this

day of

L. M.,

A commissioner of the said Court of Queen's Bench [or C. P. or Ex."] Where the affidavit was sworn before a judge, and the deponent signed it, and was sworn to it, but it was not signed by the judge, before the order was made, nor until after the capias had issued, and the defendant was arrested upon it: the court held that this was not an affidavit, at the time the order was made, and they set aside the order and capias for irregularity. Bill v. Bament, 9 Dowl. 810.

When to be made.] The affidavit should be made shortly before the suing out of the process. Where it was made in July, 1744, at a time when the plaintiff was going abroad, and the process was not sued out until May, 1747, the court discharged the defendant on common bail, saying, that although the debt might be due in 1744, it did not follow that it was still owing in 1747. Collier v. Hague, 2 Str. 1270. It remains in force for one year; Ramsden v. Maugham, 4 Dowl. 403; after which process cannot regularly be sued out upon it. Pitches v. Davey, 1 Tidd. 192. Stewart v. Freeman, Id.

Where made.] The affidavit may be made in this country, or in Ireland, Scotland, any of the British colonies, or in any foreign country; the only distinctions are, as to the person before whom it is to be sworn. O'Mealy v. Newell, 8 East, 364. French v. Bellew, 1 M. & S. 302. Although made in a foreign country, it must be in the English language, and interpreted, if necessary, to the deponent, See Marzetti v. Jouffroy, 1 Dowl. 41, and it must state the sum as in "pounds sterling English." Picardo v. Machado, 4 B. & C. 886. In other respects, these affidavits must be the same as those sworn in this country. Nesbit v. Pym, 7 T. R. 376 n.

By whom.] It is usually made by the plaintiff himself. But it may be made by his agent or collector, Short v. Campbell, 3 Dowl. 481, 1 Gale, 60, and see Monro v. Spinks, 8 T. R. 284. Cass v. Levy, 8 T. R. 520, or by any other person wh will swear positively to the debt, King v. Lord Turner, 1 Chi 58. Luytjes, 1 B. & P. 1. Andriou v. Morgan, 4 Taunt. 231, a

the court will not inquire into the deponent's means of knowledge. Per Coleridge, J. in Harrison v. Turner, 4 Dowl. 75. And it is no objection to say that the deponent has been convicted of a conspiracy, Park v. Strockley, 4 D. & R. 144, or of felony. Anon 1 Chit. 165.

Before whom sworn.] The affidavit may be sworn before the officer who issues the first process; 12 G. 1, c. 29; formerly, in the Queen's Bench, before the signer of the writs; in the Common Pleas, before the filacer for the proper county; in the Exchequer, before one of the masters, or his deputy signer of the writs; but now before one of the masters, or before the clerk or deputy in the master's office whose duty it may be to sign the writs. Where an alias or pluries capias therefore is sued out, if it be sued out within the time limited by the judge's order, it is not necessary that there should be a fresh affidavit of debt, because there is already an affidavit made before the officer who issued the first process. Even formerly in the Common Pleas, where the filacer, who issued the alias and pluries, was not always the same who issued the first writ, there, although the alias were issued by a different officer, it was not necessary to file with him a fresh affidavit of debt, but it was sufficient if you obtained an office copy of the affidavit already made, from the office where it was filed, and filed it with the filacer who signed the alias, &c. See Baker v. Allen, 7 B. & C. 526. Rodwell v. Chapman, 1 Dowl. 634. A plaintiff, however, sometimes, instead of suing out an alias or pluries, sues out a capias into a different county. And in such cases, as in all the courts at present, such writs are always signed by the same officer who signed the first writ, a fresh affidavit to hold to bail is not necessary. See Ramsden v. Maugham, 4 Dowl. 403. Rock v. Johnson, Id. 405. and see Young v. Beck, 1 Cr. M. & R. 448, overruling Beck v. Young, 2 Dowl. 462. Where an affidavit purported to be sworn at the King's Bench office before Thomas Chambre," it was holden sufficient, although it did not appear upon the face of it that Thomas Chambre was an officer of the court. Howell v. Wilkins, 7 R. & C. 783. And where an affidavit purported in the jurat to be sworn before J. Y. deputy filacer," it was holden good, although not intituled in the court. Bland v. Drake, 1 Chit. 165. If the affidavit be made by a foreigner, not understanding the English language, an interpreter must be sworn to interpret it to him, he must be sworn to his interpretation, and all this must be stated in the jurat. Marzetti v. Jouffroy, 1 Dowl. 41.

"

In the country, the affidavit is sworn before a commissioner of the court for taking affidavits; and it is no objection that such commissioner is the plaintiff's attorney. R. G. H. 2 W.4, s. 6. In town, it may be sworn in court, or before a judge of

the court; 12 G. 1, c. 29; or before a judge of any other of the courts of law at Westminster, if it be intituled of the court in which it is to be used. R. G. H. 2 W. 4, s. 4.

So

In Ireland, Scotland, and the colonies, an affidavit sworn before a magistrate, was always deemed sufficient to obtain a judge's order to hold to bail in this country, upon the signature to the jurat, and the authority of the magistrate to take affidavits, being verified by an affidavit made in this country. See Sharp v. Johnston, 2 Bing. N. C. 246, 4 Dowl. 324. an affidavit, purporting to be sworn before the chief justice of the King's Bench in Ireland, and the signature verified by an affidavit made here, has been holden sufficient to obtain a judge's order to hold to bail in this country, although the place where the affidavit was sworn was not mentioned in the jurat. French v. Bellew, 1 M. & S. 302. By 3 & 4 W. 4, c. 42, s. 42, however, the courts of law at Westminster were empowered to appoint commissioners in Ireland and Scotland, for taking affidavits; and they have accordingly done so. Whether, since the appointment of these commissioners, an affidavit sworn before a justice of the peace in Ireland or Scotland, as formerly, can be received in the courts in this country, has not been decided. See Sharp v. Johnston, 2 Bing. N. C. 246, 4 Dowl. 324. If the affidavit be sworn before one of these commissioners, his signature to the jurat need not be verified by affidavits as formerly. As to the jurat in such a case, See Daley v. D'Arcy Mahon, 6 Dowl. 192.

In foreign countries, the affidavit may be sworn before the mayor or other magistrate of the place; and upon his signature to the jurat, and his authority to administer oaths and take affidavits, being verified by an affidavit made in this country, a judge's order may be obtained upon it for holding the defendant to bail. O'Mealy v. Newell, 8 East, 364. and see Dalmer v. Barnard, 7 T. R. 251. Whether an affidavit can legally be sworn before a British consul in a foreign country has been doubted; Picardo v. Machado, 4 B. & C. 886; it may, perhaps, before a consul general. See 6 G. 4 c. 87, s. 20. Re Barber, 4 Dowl. 640,

Discharge of defendant, when, &c.] If the affidavit be insufficient, by reason of any defect in the title, the body of it, or the jurat, as already mentioned, the court upon application will discharge the defendant, or order the bail bond (if he have given one) to be delivered up to be cancelled, on his entering a common appearance. This application, however, must be made within a reasonable time, otherwise the court will not entertain it. Fowell v. Petre, 5 Dowl. 276, 1 Nev. & P. 227. Firley v. Rallett, 2 Dowl. 708, and see Mammat v. Mathew, 2 Dowl. 797. The court have also refused to entertain it,

after bail perfected, Chapman v. Snow, 1 B. & P. 132. Jones v. Price, 1 East, 81, or after bail put in, Dalton v. Barnes, 1 M. & S. 230. D'Argent v. Vivant, 1 East, 334. Morgan v. Bayliss, 3 Dowl. 117. Reeves v. Hucker, 2 Tyr. 161, though put in merely for the purpose of render, Shawman v. Whalley, 6 Taunt. 185, or, it seems, after the time for putting in bail has expired. Tucker v. Colegate, 2 Cromp. & J. 489. And where

a defendant, hearing that a bailable writ was out against him, voluntarily gave a bail bond, the court held that he could not afterwards object to the affidavit to hold to bail. Norton v. Danvers, 7 T. R. 375.

Formerly defects in an affidavit might, in some cases, be remedied by a supplemental affidavit, in the court of Common Pleas, but not in the court of King's Bench. Now, however, hy R. G. H. 2 W. 4, s. 9, "no supplemental affidavit shall be allowed, to supply any deficiency in the affidavit to hold to bail."

On the other hand, the defendant will not be allowed to contradict the cause of action stated in the affidavit to hold to bail, Imlay v. Ellefsen, 2 East, 453. Smith v. Fraser, 1 W. Bl. 192. Brackenbury v. Needham, 1 Dowl. 439. Nor will the court receive any explanation from him, by way of confession and avoidance of the facts stated in such affidavit; Emmerson v. Hawkins, 1 Wils. 335, Say, 53. Massel v. Angel, 6 D. & R. 15; although there are some instances of the court of Common Pleas having formerly done so. See Young v. Moore, 2 Wils. 67. Shaw v. Hawkins, Barnes, 66. Manning v. Williams, Barnes, 58. But the general rule is, that the court will not enter into any examination of the merits, upon a motion to discharge a defendant upon entering a common appearance, or to have the bail bond delivered up to be cancelled. Per Holt, C. J. 1 Salk. 100. Birch v. Douglas, Barnes, 52. Burton v. Haworth, 1 Nev. & M. 318. M'Ginnis v. M'Curling, 6 D. & R. 15. Even where the plaintiff, having holden the defendant to bail, and having also proceeded in equity for the same matter, was put to his election there, and elected to proceed in equity, and thereupon a perpetual injunction was granted as to the action at law the court of Common Pleas refused to interfere. Horsley v. Walstab, 7 Taunt. 285. And that court also refused to order the bail bond to be cancelled, on an affidavit that the plaintiff could not be found. Brown v. Moore, 4 Bing. 148. There have been, however, some few exceptions to this, under peculiar circumstances. Where the defendant was holden to bail on a bill of exchange or order, and by the declaration it afterwards appeared that the instrument was a mere order for the payment of money, when it should be received from a third person; the court discharged the defendant on common bail. Wilks v. Adcock, 8 T. R. 27. So,

where it appeared that, shortly before the arrest, the plaintiff in his schedule in the insolvent court described the defendant as a creditor for £4000, and also in a letter mentioned him as one of his principal creditors: the court granted a rule nisi to discharge the defendant; and these facts not being denied in answer, they made the rule absolute. Nizetich v. Bonacich, 5 B. & A. 904. So, where in 1835, the defendant was arrested for £72 alleged to be due for the board and maintenance of his children from the year 1818 to 1823: the court of Common Pleas, upon an affidavit that the money had been paid, granted a rule nisi to discharge the defendant; and upon cause shewn afterwards, the matter was referred to the prothonotary. Tucker v. Tucker, 1 Hodg. 15. So, where the defendant was arrested for the penalty in a bastardy bond, and applied to be discharged upon an affidavit that the sum of £3 only was due: the court expressed great indignation at the arrest, but doubted whether they could relieve the defendant upon motion; at last, however, they granted the rule, intimating their persuasion that the plaintiff would not shew cause against it. Kirk v. Strickland, Doug. 432. So, where the affidavit alleged that the defendant was indebted to the plaintiffs in a sum for money lent to him by them and their late partner deceased: the court of Exchequer, upon an affidavit that the other partner was still alive, ordered the bail bond to be delivered up to be cancelled. Morrell et al. v. Parker, 6 Dowl. 123. But in a case where it appeared that after the plaintiff had holden the defendant to bail for money lent, the defendant made an affidavit of certain facts upon which he obtained a judge's order for holding the plaintiff to bail, and the plaintiff afterwards applied to be discharged out of custody, upon an affidavit stating certain facts, which were somewhat inconsistent with his first affidavit of bail, and which coupled with the affidavit of the defendant, shewed that the plaintiff had no cause of action: still the court of Exchequer refused to order the bail bond to be cancelled, because it would be trying the merits upon the affidavits of the parties. Vaughan v. Goodby, 3 Mees. & W. 143.

66

3. The Capias.

How directed.] The writ is directed" to the sheriff of —," or to the constable of Dover Castle," or to the mayor and bailiffs of Berwick-upon-Tweed," or as the case may be. 2 & 3 Vict. c. 110, sch. 1. There is but one sheriff appointed to each county in England. In Middlesex, although two individuals exercise the office of sheriff, yet in contemplation of law they constitute but one sheriff. And where a capias was directed to the sheriffs of middlesex, it was set aside for irregularity, and the defendant discharged out of custody. Jackson v. Jack