APRIL TERM, 1772.

#### Henry Thompson *against*James Towson.

THIS was an attachment on a warrant under the act of Assembly of 1729, c. 8.

The affidavit indorsed on the bond on which the attachment was founded, was, “ that no part or parcel of the mo- “ ney within mentioned hath been paid, nor any thing “ given or delivered towards satisfaction thereof, more “ than credit given.”

The warrant of the Justice sets forth, “ that whereas it “ appears to me, that at the time of his absconding and flying from justice, he was really and *bona fide*indebted *íí*unto the said *Henry*Thompson, in the sum of 1,367/. *7s.*“ *7d.*current money, *as by the bond hereunto annexed ap-*“ *pears.”*

Motion was made to quash the attachment, on the ground that thé affidavit did not state that the debt was' *bona fide*due«

*505Paca, for the motion.

The act of Assembly is intended to prevent collusion between the absconding person and a pretended debtor, and to avoid such collusion requires the oath from the person suing out the attachment, *that the debt is bona fide*due. And the creditor must make it appear, that the absconding person is really and *bona fide indebted*to him, and in *how*much, before he can obtain the warrant. And, for that purpose, an affidavit by way of reference is defective, and not to be rendered effectual by any thing extrinsic of the affidavit. In this affidavit, reference is made to the bond to complete the affidavit.

*S'. Chasers*notes for the motion.

Under the act 1729, c. 8. s. 2. any Provincial Justice, on Justice of the Peace, informed, on oath, by testimony of óne witness, or by any other'probable way, that any person is run away, &c. on application by a creditor, and making it appear to the Justice that the runaway is really and *bona, fide*indebted, and in how much, may issue warrant, &c. Section 4. Provided always, when the creditor produces (to the Justice) any bond, bill of exchange, note, &c. he shall make oath, or affirmation, that the whole debt, or part thereof, (mentioning particularly what part if any payment,) *remains*really and *bonafide due*and owing.

An attachment under this act, is in the nature of *a distringas*to compel an appearance of the defendant, and savours partly of a judicial and partly of an original writ. 1 *Bac.*689. *Cartlu*345. An attachment under the act of Assembly, may be compared to an attachment under the custom of *London.*The mode prescribed by the act ought to be pursued in order to entitle the plaintiff to any benefit from it. The objection made, is, that it does not appear by the warrant, that any *affidavit*was made of any sum due. It only refers to a bond. The plaintiff must produce that bond to shew that the oath required hy *506the act was made. The Justice, expressing in his warrant “ that it appeared to him that the sum specified therein “ was due,” is not sufficient. It ought to appear by the warrant, that the requisites required by the act of Assembly were' complied with. The Court to which the attachment is returned, are the sole judges, whether the attachment has properly, and legally issued. The Justice, as to the proof of the debtor having run away, acts in a judicial capacity 5 as to the proof of the plaintiff’s debt, he acts in a ministerial capacity, and has no power to preclude the Court from an examination and determination of it. The affidavit on the bond is, “ that no part or parcel of the money within “ mentioned hath been paid, nor any thing given or deliver-u ed towards satisfaction therefor, more than credit “ given.” This oath does not prove that the *whole*or any *particular*part thereof is due. It may be true that no part is paid, *sed non*sequitur, that any debt was ever due. The act requires proof of a legal subsisting debt *at the time of issuing the*attachment» The act requires the oath of the debt to guard against fraud, for the benefit of the credi- ' tors of runaways. If there was no oath, the bond or note of the runaway would be *prima facie*evidence of the debt, and if nothing more was made necessary, it would be in-the power of any rascal who intended to run away, to giv& a bond or note *without consideration*to his friends, and cheat his creditors, or give a bond or note in trust. If no oath was required, a bond or note for gaming, or one which might be by law void, might sweep away the estate of the absconding creditor. The custom of *London,*is the law. by which attachments are governed, but that custom must be strictly pursued, 2 *Stra.*993. By the custom the plaintiff must swear to his debt, and in pleading the attachment, the omission of shewing the oath was held to be fatal. 1 *Stra.*641. An oath by any other person than the plaintiff is sufficient — as by his attorney. *Cro. Eliz.*713. 2 *Bac,*Ab.-692. *W. Jones,*406. The oath may be compared to an oath to hold to bail. The stat. of 12 *Geo.*I. c. 29= requires a positive oath of debt. 2 *.Strcu*1102= *1157***5072209» 1219. 1226. 1 *Barnes’s*Notes, 66. 84. 2 *Barn.*65. 58. 81. *TFiIs.*121.' 231. 279. 2 Awrr. 655. 1032. 3 *Burr.*1447. 1G87. Admitting the oath on the bond, proves a debt to be due; yet as the act requires an oath, that the debt not only remains *really*due, but *bona jide*due, the present affidavit is defective. The term *bona jide, or*what is intended by that term, and what it necessarily conveys and implies, must be contained in the oath. The substance of *bona*fide, must be expressed. *Bona fide*is a legal, technical expression, and the law has annexed a certain idea to it. 2 *Bac. Abr.*604. It is a term used in statutes, and signifies a thing done really, with a *good faith*without fraud, or *deceit,or*collusion, or trust, and is so used in the following statutes, *viz. SO H.*III. c. 6. 13 *Eliz.*c. 5. s. 3. 6. 27 *Eliz.*c. 4. s. 3, 4. 6. 12 *Car.*IÍ. c. 18. s. 10. 15 *Car.*II. c. 5. 15 *Car.*II. c. 7. s. 6. 8. 16. 13 and 14 *Car.*II. c. 11. s. 6. 29 *Car.*II. c. 3. s. 18. 7 and 8 *TV.*III. c. 22. s. 4. 3 *TV.*and *M.*c. 14. s. 4, 5. 9 *Ann.*c. 14. s. 2. *Vid.*3. *Co.*80. *Twyne’s case.*Act of Assembly, 1729, c. 15. s. 3. 1763, c. 18. s. 117. If the plaintiff should move to make a supplementary oath to supply the defect of the first, cite 2 *Barnes,*81. Cite also 2 *Stra.*1157. Andrew, *70.*2 *Barnadist.*256. 284. 294. *Hardw.*114. 131. *Salk.*461» supplementary. The affidavit is to confirm and not to contain new matter.

Put the case of a bond not *payable;*no attachment can issue before the day of payment. In such case the plain?tiff could not prove his debt, when he issued attachment, but if the day arrives before the return of the attachment, br before condemnation, then by another affidavit he may with truth prove a debt to be then due, but in that case as in the present, no debt is due at the time of the issuing of the attachment. Creditors may be deceived by such conduct; for as *Thompson*had not proved any debt, they complied with the act and have incurred a considerable expense. It would be dangerous to suffer the plaintiff, to amend hie affidavit, after he has learnt of the Court, what is necessary* *5087 *Mod.*156, 157. *Bona*fde, is opposite to fraud, 1 *Mod.*119. See acts of Assembly, 1671, c. 6. 1715, c. 47. s. 2. 1723, c. 18. s. 6. in which the words *bona*fde, are used.

■Hall, for the attachment,

Contended that the Justice, out of Court is made the judge of the proof of the debt, and if he issues a warrant without any proof at all, yet, his judgment is not to be disputed or overthrown, on motion in Court. ■ He reads tlie third section of the act of 1715, c. 40. “ making such “ proof as the Court shall think fit,” and asks, what more probable method of making the debt appear than by producing the bond. Contended that this was a remedial law, and ought to be construed liberally. *Vid.*3 *Co.*17. 4 *Bac. Abr.*650. Wondered that no objection was made because the attachment issued for the penalty. But if it had issued only for the sum due, the plaintiff would lose the growing interest accrued between the issuing of attachment and the condemnation. That by law the penalty after the day, is. the legal debt. Statutes of frauds were made to guard against the fraud of debtors. Frauds are odious in law and never presumed. If the doctrine contended for prevails, it will put the people under the necessity of employing counsel to draw warrants, and thereby make it a burthensome, rather than a remedial act.

*G. C.*for the attachment.

There are two essential things to be complied with under the act of Assembly. 1st. It must be made to appear to the Justice that the debtor has .absconded. 2d. There must be an affidavit by the applying creditor, that there is a subsisting debt. But no oath is required by the act to induce the magistrate to believe that there is a debt really, and *bona*fde, due ; but it must be made appear to his satisfaction, in a probable way; such as the production of a *509bond or note. The act only requires the party to give satisfaction to the Justice, that the debt appearing tobe due on the face of the bond has not been discharged» The policy of this act is similar to that of 1722, c. 10. The swearing that he has received *no part or parcel thereof, or satisfaction for the same,*is swearing, that *the debt is*really, *and bona fide, due„*And to say that it is a *non sequitur*that the debt is due, is too great a refinement and too fallacious to impose on the Court»

The Court ordered the attachment to be quashed.