#### *Hawkins v. Gibson.

November, 1829.

Affidavits — Bail—Whether Should Be in Writing.— Semble an affidavit before a justice to found an order requiring bail ought to be in writing.

Same — Same—Filing with Process — Quaere.—Whether such affidavit ought lobe filed with the process.

Bail — "When Motion to Discharge is Too Late. — After judgment by default and writ of inquiry awarded, and after the defendant has left the state; iiisi/d, a motion to discharge the bail comes too late.

Same — Proper Proceeding to Discharge. — To obtain an order to discharge bail, the proper course of proceeding is by rule to show cause why the bail should not be discharged.

Gibson brought assumpsit against Homer in the hustings court of Richmond. And, on the capias ad respondendum, which was dated the 5th June 1822, and returnable to the ensuing August term, an alderman of the city indorsed an order requiring appearance bail, in the following words: ‘ ‘June 6th 1822. Upon proper affidavit made before me, the sergeant will hold the within named M. Homer to bail, in the sum of 150 dollars. ’ ’ Homer was arrested, and Hawkins became bound as his appearance bail. The process was duly returned. But the affidavit, «pon which the order of the alderman requiring bail, was founded, was not returned or filed; nor did it appear whether the affidavit was in writing or not. Gibson filed his declaration at the October rules 1822; and the defendant failing to appear, judgment by default was entered at the rules, against him and Hawkins as His appearance bail; which, at the November rules, was confirmed, and a writ of inquiry awarded. At the November term ensuing, Homer, without setting aside this office judgment, applied for and obtained a continuance; and the case was continued from term to term, till July term 1824; when Hawkins moved the court to discharge him from his obligation as appearance bail, on the ground, that no sufficient affidavit had been filed in the cause to justify the order requiring bail (Homer being now, not an inhabitant of Virginia). The court refused to discharge the bail. Then Hawkins being allowed to defend the suit for the principal, pleaded the general issue. The jury found a verdict for Gibson, for 112 dollars ; whereupon the court gave ^judgment against Homer and Hawkins his appearance bail. And Hawkins appealed to the circuit court of Henrico.

The circuit court adjourned the following questions to the general court: 1. Whether, under the statute authorising a judge of the general court, or a justice of the peace, to require bail in actions wherein appearance bail is not demandable of right, it is necessary that the judge or justice should return the affidavit required by the statute, to the court from which the process issues? 2. Whether, if it be necessary to return it, and it be not so returned, the appearance bail can in such case be relieved, and if so, whether he can be discharged on motion? 3. Ought the bail to be discharged, in this case, upon the whole matter appearing in the record?*

*The general court certified its opinion to the circuit court (not deciding the first two questions adjourned) that “the bail ought not in this case to be discharged.” Whereupon the circuit court affirmed the judgment: and Hawkins appealed to this court.

Bacchus, for the appellant.

The statute giving a special authority to a judge or justice in vacation, upon proper affidavit, to require bail, it ought to appear that that authority was exactly pursued. 2 Salk. 475, pl. 14; 3 Stark. on Ev. part iv. pp. 1197, 8. The affidavit ought then to be in writing (indeed, the word affidavit imports a written oath) and it ought to be filed; since, unless it be in writing and filed, it cannot be inspected by the court, to ascertain, whether it is a proper affidavit or not; whether it verifies the justice of the action, and shews probable cause to apprehend that the defendant will depart from the jurisdiction of the court, so as to avoid process of execution. Neither is there any alternative but either to require that the affidavit shall be in writing and filed, or to hold that the single justice, who makes the order, is the absolute judge of the propriety of the affidavit on which he founds it, subject to no controul or supervision, and that if a perjury be committed in such an affidavit, however palpable, the offender shall be exempt from prosecution. Our statute does not, indeed, in express terms, require, that the affidavit shall be in writing and filed; yet the very particularity with which the statute prescribes what the affidavit shall contain, in order to justify the justice in ordering bail, evinces, that it was the plain intent of the statute to require both.

Lyons, for the appellee.

The english *170statutes expressly require, that the affidavit on which bail is ordered, shall be returned and filed, and prescribe when this shall be done, by whom, and to whom. 1 Tidd’s Prac. ch. 8. Our statute is silent as to all these particulars; it requires only, that there shall be proper affidavit made to authorise a justice to *order bail, and that when bail has been required by order of a justice, as well as when required by the plaintiff, the sheriff shall return on the writ, the ñamé of the bail by him taken, and the bail bond or a copy of it, to the clerk’s office, on the day of appearance. If the court shall hold it necessary to return and file the affidavit, it must go farther, and prescribe when, by whom, and to whom, it shall be returned; which were not to interpret but to make law. But suppose the affidavit ought to be filed: the bail could not be discharged, on motion made at the calling of the cause for trial, without even a notice of the motion: this motion was a surprise on the plaintiff: the proper course was, to have asked a rule on the plaintiff to shew cause why the bail should not be discharged, and thus to have given him an opportunity to produce the affidavit, or shew other cause. Again, the application to discharge the bail in this case, came too late; two years after bail required and entered, after judgment by default and writ of inquiry awarded, and after the defendant was gone, so that if the court discharged the appearance bail, it could not have made any effectual order requiring special bail. Desborough v. Copinger, 8 T. R. 77; 2 Com. Dig. Bail, K. 3, pp. 22-6.

Bacchus, in reply. In our practice, the plaintiff is always in court: wherefore, then, require notice of the motion, or a rule to shew cause? If the motion was unexpected, the court might have obviated the surprise, by giving time to the plaintiff, if he had asked time, to produce the affidavit, or to shew that it was lost, and to prove its contents. This is an objection to form, not to substance. But, in truth, if it was necessary that a proper affidavit should not only be made, but returned and filed, then, no proper affidavit being returned and filed, the case was the same, as if there had been no affidavit; as if, in short, bail had been taken, when it had not been required, or had been unlawfully required. And, in such cases, the bail is taken at the plaintiff’s peril; he is bound to proceed regularly, and not to require bail ^without lawful authority to do so, upon pain of having his suit dismissed with costs, at any time when the fact is shewn to the court.

*

See 1 Rev. Code, ch. 128, § 42. 43. 44. 45, 50. pp. 499. 501. § 42 provides, that “in all suck actions wherein bail may not lawfully be demanded, the plaintiff, or his attorney, shall, on pain of having- his suit dismissed with costs, indorse, on the original writ or subsequent process, the true species of action, and that bail is not required in order that the sheriff may be informed how to govern himself in the execution thereof.”

§ 43 provides, in what actions bail may be demanded by the plaintiff of right: assumpsit is not one of them.

§ 44 provides, that “in all other personal actions, it shall be lawful for any judge of the general court, or any justice of the peace for any county or corporation, upon proper affidavit, verifying the justice of the plaintiff’s action, and shewing probable cause to apprehend that the defendant will depart from the jurisdiction of the court so that process of execution cannot be served upon him, to direct bail to be taken, by indorsement on the original writ, or subsequent process, and the sheriff shall govern himself accordingly."

§45 provides, that “in all cases, where bail shall so have been required, by the indorsem ent. of the plaintiff or his attorney, or of a judge or justice, the sheriff shall return on the writ, the names of the bail by him taken, and shall return ihe bail bond or a copy thereof, to the clerk's office, on the day of appearance.”

§ 50 provides, that “in any personal action, in which bail shall not have been required, the court may at any time before final judgment, for good cause shewn, rule the defendant to give special bail, and, on his failure to do so, may refuse him permission to plead, or may set aside any pies, already pleaded by him, and award a writ of inquiry, or otherwise proceed to judgment according to law. or may cause him to be arrested and committed to prison.” — Note in Original Edition.

BROOKE, P.

This case turns on the question, whether the hustings court erred in refusing to discharge Hawkins, the appearance bail? The motion was put, in that court, on the ground, that no sufficient affidavit had been filed in the case, to authorise the alderman’s order requiring bail. It is not necessary to-decide, whether the justice must have a written affidavit to justify his requiring bail? nor, whether that affidavit must be filed? The term affidavit in the statute, imports an oath in writing; but the statute is silent as to the filing. There are two other grounds, on which, I think, the judgment must be affirmed.

1. The objection could not be taken on motion ; since it involved matters aliunde and not on the face of the record. It could only be made on a rule to shew cause why the bail should not be discharged, on the return of which the other party might be prepared to shew the affidavit, and that it was a proper one, in the terms of the statute.

2. The objection came too late; being made two years after the writ of inquiry, and (it appears) after the defendant had left the state. In Desborough v. Copinger, the objection to the affidavit was held to be too late after the writ of inquiry.

On these grounds the judgment is to be affirmed.