#### Joseph H. Painter *vs. Samuel*T. Houston and Robert Pendleton.

1. The plaintiff’s oath or affirmation is admissible, and is sufficient oí ii ®lf to prove as well the facts constituting the fraud as the indebtedness, to obtain an order for a *capias ad respondendum*under the act abolishing imprisonment for debt in certain eases.

2. Counter affidavits to show no indebtedness, or to show a rectitude of dealing, and a total absence of any fraud on the part of defendant, or to contradict the facts as sworn to in the original affidavits, cannot be admitted. But the facts, as sworn to in the original affidavits, must be taken as true, and upon these, and these only, the question of discharge is to fco determined.

3. Of indebtedness, *prima facie*evidence is sufficient, and false and deceitful representations, made by way of inducement to contract or surrender one’s rights, sufficient evidence of fraud; but the intent to defraud must be clearly inferriblo or positively proved.

Argued before Justices Ogden, Wiielpley, and Claw-son, on motion to discharge on common bail.

*W. Hoisted,*for defendants.

*T. H. Dudley,*for plaintiff.

Tbe opinion of tbe court was delivered by

Clawson, J.

In this case the affirmation of the plaintiff is particularly relied on for proof to obtain tbe order for tbe *capias ad, respondendum,*although there is super-added the affidavit of a third person to certain facts, strengthening somewhat that of the plaintiff.

It is objected, in the *first*place, by defendants’ counsel, with considerable earnestness and ingenuity, that the affirmation of the plaintiff is not sufficient, and cannot be received to prove the fraud; this he insists must be proved by some disinterested person, and that tbe proof to this point must be such as would be legally admissible in a court of law, and refers to the case of *McKernan*v. *McDonald,*3 *Dutcher*541, to sustain him in this position.

*122But upon a careful reading of that case, it will he seen that it does not sustain him—it does not decide that point, and has no reference to it. It merely distinguishes between the words *proof*and *affidavit,*as used in the act abolishing imprisonment for debt, and decides that the fraud must be clearly proved by.such testimony as would be legal in a court of justice. In this it does not, nor did • it intend to decide whether this proof may or may not all appear in the affidavit of the plaintiff alone. It must be proof of facts within the affiant’s own knowledge, and not hearsay, as in that case, which would not be legal testimony, whether sworn to by the plaintiff or any one else. The point was not raised in that case, that the plaintiff’s affidavit was not sufficient, of itself, to prove the fraud, nor was it supposed that any question of that kind could be made, or that any decision of that matter was necessary, the “act respecting imprisonment for debt in cases of fraud,” approved- April 15th, 1846, *(Nix. Dig.*330, § 1,) being couched in the following plain and unmistakable words: “ and establishing by the *oath or affirmation*of *thsplamtiff,*or *some other person or persons,*to' the satisfaction of such justice or commissioner, one or more - of the following particulars,” &c. In addition to which specific enactment, we now have also the general act, approved March 18th, 1859, (see *Pamph. Laws*1859, *p.*489,) allowing parties to be witnesses in their own favor in any suit or proceeding at law or in equity, since which enactment, to wit, on October 5th, 1859, the affidavits in • this case were made. But there could be no room for doubt. since the act, approved Ajoril 15th, 1846, that the plaintiff’s oath or affirmation, alone, is sufficient, not only to prove the indebtedness, but also the fraud, thus making, by express enactment, the facts set forth in the plaintiff’s oath or affirmation legal testimony, so far as the same are within his own knowledge, and not hearsay, or otherwise legally objectionable.

In the second place, the counsel for the defendants *123proposes to show the impropriety of the order to hold to bail by counter affidavits; that the defendants were not indebted to the plaintiff; that there wras no fraud on the part of the defendants ; that the affiant, Roy, was a man of bad character for truth and veracity, &e. It is not the practice to admit counter affidavits in a case of this kind, and should not be, unless the object be to convert the court into an inquest or jury, and require them to determine upon the whole evidence involved in the trial of the cause. This course of proceeding would necessarily result in a trial bf the merits or matters in dispute between the parties. If we allow the defendant to produce and read affidavits taken subsequent to the commencement of proceedings, we must allow the plaintiff the same privilege. "We should soon find the files of the court encumbered with folio upon folio of testimony, out of place altogether, except before a jury. Indeed, would not the main question, in fact the only question involved in the motion to discharge, the sufficiency of the affidavits upon which the order was made, or, in other words, the sufficiency of the facts proved to warrant the order for a *capias ad respond*endum, soon bo overlooked altogether, and become merged in the query—-whether 'a sufficient state of facts can be made out whether there is really any indebtedness, any fraud, which are inquiries altogether aside from the issue made by the motion to discharge, which can be only upon the sufficiency or insufficiency of the proof before the judge or commissioner at the time of making the order. Further, if this were to be adopted as the practice, many a defendant would be held to bail, or continued under arrest or in imprisonment on the proof subsequently admitted, instead of that originally made and relied on.

In another case, argued at this very term on a similar motion, the plaintiff’s counsel, doubting perhaps the sufficiency of his proof before the judge who made the order, insisted upon the propriety and right of the plain*124tiff to add other prodf showing fraudulent transactions since the service of the writ. Such a practice certainly, upon the reason of things, never can prevail. It would obviously be inconsistent with the remedy intended. You might, with equal propriety, arrest the defendant first, and after-wards inquire into the indebtedness and fraud.-

Reason, however, need not be called in aid to determine the practice in this case. We have all the reason in the matter summed up in a few brief words in the 83d section of the practice act of 1855, *(Nix. Dig.*647, *pl.*203,)—“ Whenever, in actions founded upon contract, application shall be made to set aside the writ upon which the defendant was arrested, or to discharge him from arrest, the court or judge hearing the application shall *consider mid determine*the sufficiency in fact, as well as in law, of *the proof upon which the order for issuing such writ was founded?*The words have a retrospective application only, and the court or judge to whom the application for discharge is made acts in an appellate capacity, being authorized to *review*only—to determine upon the law and facts already before the court, and not to take cognizance of new matters transpiring since the arrest, nor to hear and determine upon facts existing at the time of making the order, but not at that time put in evidence ; to determine the legality and propriety of the order by the proof upon which the order for issuing such writ was founded,” and by that only. Nothing can be plainer, and more consistent with the reason and propriety of the thing, than that a judge or court, on a motion to quash or discharge, is limited and confined to a consideration of the proof only upon which the order was granted; and this we hold to be the law and practice.

Upon the third and last objection, that the affidavits 'are insufficient in themselves, we think the defendants can claim' no discharge. The facts set forth clearly malee out a *prima facie*case of indebtedness, which is all that is required by the act. 'On this point they set forth the false, *125deceitful and fraudulent representations óf defendants, tliat they were the owners of the furniture and personal property about the United States Hotel at Cape Island, of which they were the proprietors ; that they were responsible men and men of means, beyond all this,' previous to incurring the indebtedness; and that it was upon, and by means of those false and fraudulent representations of defendants; the plaintiff at the time believing them to be true, he was induced to incur the liability be did for their benefit, and advance for them the money he did. He afterwards ascertains that they aré not the owners of the personal property and furniture about the house, and are men of no reliable means; that these misrepresentations and false assertions of theirs were made use of only for the purpose *of cajoling and deceiving the plaintiff out of liis own funds, and thus fraudulently incurring an indebtedness which they meant never to liquidate. In all the important and' material statements of the plaintiff, he is sustained fully by the testimony of Roy. ~We think that the' proof of fraud as well as of indebtedness is sufficient to' warrant the order for the *capias,*and therefore the motion to discharge must be denied.