1833.

RICHARDS

บ. STUART.

tiffs' cause of action shall amount to the sum of 10, or 40s. or upwards, as aforesaid, affidavit shall be made and filed of such cause of action;-and the sum or sums specified in such affidavit shall be indorsed on the back of such writ or process, for which sum or sums so indorsed the sheriff or other officer to whom such writ or process shall be directed shall take bail, and for no more." All that the fair import of those words demands has been done in the present instance: an affidavit of the cause of action has been made and filed; of the cause for which the Defendant is now arrested; for there is no pretence for saying that the first arrest was for a different cause of action. But it has been urged that the deponent could not be indicted for perjury. I am unable to perceive why he should not, if the affidavit be untrue; for if he uses it for the second arrest, it is the affidavit of the cause of action in that proceeding.

And no answer has been given to the case of Boyd v. Durand, where it was held that if a plaintiff proceed by a second original capias, instead of a testatum capias, a second affidavit to hold to bail is not necessary. In this Court it has never been the practice to file a second affidavit upon a second arrest for the same cause of action; and upon conference with the other Judges, I find it to be their opinion that a second affidavit is, in such a case, unnecessary.

GASELEE J. I say nothing on the main point, because the Chief Justice has delivered his opinion so fully.

With respect to the indorsement, the arrest having proceeded on the affidavit to hold to bail, the proper indorsement was the amount for which the Defendant was held to bail; and, as the first action had not proceeded beyond the writ, the discontinuance of that writ was a sufficient discontinuance to authorize a fresh action,

especially

especially after the party admitted that he had received the costs of the former action.

BOSANQUET J. I am of the same opinion. It is not open to the Defendant to contend there has been no discontinuance, after he has given a receipt for the costs in the action.

With respect to the second arrest, the order of the Court is equivalent to the order of a Judge, which the new rules require as a preliminary to a second arrest after a discontinuance. Those rules were followed by the act for the uniformity of process, which requires the indorsement of bail by affidavit, or bail by order of a Judge; and where the arrest is by order of a Judge, independently of any affidavit of debt, the indorsement ought to be "by order of the Judge ;" but this arrest is by affidavit; the amount sworn to is indorsed; and there is no necessity for two indorsements; the order of a Judge, or of the Court, being only required in such a case to prevent any imputation that the arrest was vex

atious.

And I think a second affidavit was not necessary, either according to the statutes, the decisions, or the practice of the Court. The statute 12 G. 1. c. 29. s. 2. requires, that "in all cases where the plaintiff or plaintiffs' cause of action shall amount to the sum of 10%., or 40s. or upwards, as aforesaid, affidavit shall be made and filed of such cause of action, which affidavit may be made before any judge or commissioner of the court out of which such process shall issue, authorized to take affidavits in such courts, or else before the officer who shall issue such process, or his deputy, which oath such officer or his deputy are hereby empowered to administer, and the sum or sums specified in such affidavit shall be indorsed on the back of such writ or process, for which sum or sums so indorsed the sheriff, or other

officer

1833.

RICHARDS

ข.

STUART.

officer to whom such writ or process shall be directed, shall take bail, and for no more." If the affidavit be not before the proper officer, there is no affidavit, and on that the cases turn; but where there is an affidavit before the proper officer, as in Boyd v. Durand, where the officer for the county into which the second writ issued was also the officer concerned with the first writ, a second affidavit is neither necessary nor usual.

ALDERSON J. I am of the same opinion; but the matter having been so fully discussed, I shall not enter into it at any length. No doubt the act for the uniformity of process requires an indorsement on the writ in cases of two classes: one, where a party is held to bail by affidavit; the other, where he is held to bail by order of a Judge, independently of any affidavit, as upon an arrest or detainer in trover.

But, in the present case, it would have been objectionable to indorse on the writ the order of Court for the arrest, obtained under the new rules; for that order is different from the order referred to by the statute, and required for a very different purpose; it is not like the order required by the statute to apprise the Defendant of the cause for which he is held to bail, but merely to protect him from a vexatious arrest, by requiring the Plaintiff, in the first instance, to satisfy a Judge that there is ground for a second writ. If, in such a case, the Judge has been deceived, the party arrested may have relief upon application; but it has not been shewn here that the discretion of the Court has been improperly exercised.

With respect to the affidavit, the statute 12 G. 1. c. 29. only requires an affidavit; that is, that the party should pledge his oath as to the existence of the debt. That has been done effectually in the present instance, and therefore the rule must be

Discharged.

1833.

THIS

VANSANDAU and Another v. NASH.

The SAME V. MAY.

HIS was an application to the Court to set aside an order of Gaselee J., for staying the proceedings in two actions, on recognizance of bail; one, an action against Nash, and the other against May.

Nov. 2.

The two bail are, both together, not liable beyond

the amount specified in the recog

It appeared from the affidavits, that an action had been commenced by the present Plaintiffs against a nizance. person of the name of Philip Browne, and that Philip Browne having been arrested, the two Defendants, Nash and May, became bail in the action; the recognizance being in 100%., the double of the sum sworn to. The proceedings in the cause having lasted for a long period, the Plaintiffs ultimately signed judgment for the sum of 1791. 7s., of which 64l. 1s. 2d. was the amount of the debt, and the residue that of the costs.

The bail having omitted to render, actions were commenced against each of them on their separate recognizance, and the two actions were stayed by the order of the learned Judge, "upon payment of 1007., the amount of the said recognizance, and the costs of the action against the bail."

Wilde Serjt. obtained a rule nisi to set aside the Judge's order, contending that, under the rule of Hilary 1832,- "Bail shall only be liable to the sum sworn to by the affidavit of debt and the costs of suit, not exceeding, in the whole, the amount of their recognizance," the two bail in this case were liable to the whole of the Plaintiff's demand, which did not exceed 2007., the amount of their recognizance; that is, the recognizance of the two bail.

Talfourd

1833.

VANSANDAU

v.

NASH.

Talfourd Serjt., who shewed cause in Easter term last, argued, that their recognizance meant the recognizance of each, and not of the two combined. The actions, therefore, had been properly staid on payment of 100%.

Cur, adv. vult.

TINDAL C. J. (After stating the facts, as antè p. 329.) The point raised on the part of the Plaintiffs is, that the learned Judge ought not to have stayed the proceedings, except on the terms of the bail paying the full amount of the sum sworn to, and the costs of the original action, being 165l. 5s. 10d., together with the costs of both the actions brought against the bail.

terms:

The question turns on the construction of the twentyfirst rule of Hilary term 1832, which limits the amount of the liability of the bail. That rule is in the following "Bail shall only be liable to the sum sworn to by the affidavit of debt and the costs of suit, not exceeding, in the whole, the amount of their recognizance." Here the amount of the sum sworn to, and costs, exceeds 100%., the amount of the recognizance of each bail separately; but is less than 2001., the amount of the recognizance of the two bail taken together.

After consulting the Judges of the other Courts, we have come to the conclusion, in which a great majority of the other Judges concur, that the words "the amount of their recognizance" cannot be understood to mean the amount of the two separate recognizances added together; but the amount of the sum mentioned in each of the recognizances entered into by the bail. The order of the learned Judge, therefore, appears to us to have been correct; and the rule for setting it aside must be discharged.

Rule discharged.