103 E.R.

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103 E.R. 382 (1807) 8 East 364 103 E.R. 382 (1807) 8 East 364 (Cite as: 103 E.R. 382)

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103 E.R. 382
103 E.R. 382 (1807) 8 East 364 103 E.R. 382 (1807) 8 East 364 (Cite as: 103 E.R. 382)
Omealy v Newell
(1807) 8 East 364
1807
Saturday, May 2d, 1807. An affidavit of debt made by
the plaintiff residing in a foreign country before a
foreign magistrate, whose signature to the jurat and
his authority in that country to administer oaths and
take affidavits were verified by a proper affidavit in
this country, is a sufficient foundation for a Judge's
order to hold the defendant to special bail: and this,
notwithstanding the stat. 12 G. 1, c. 29, which
requires an affidavit of the cause of action by the
plaintiff, (by which must be understood such an
affidavit taken before a competent jurisdiction in this
country, whereon, if false, perjury might be
assigned:) for that branch of the statute is restrictive
of the acts of plaintiffs only, and not of the Courts.
But any person making or knowingly using a false
affidavit so made abroad for this purpose is guilty of
a misdemeanor in attempting to pervert public
justice, and is punishable by indictment.
The defendant, a citizen of the United States of
America, who had come to this country, was arrested
and held to bail by a Judge's order, upon an affidavit
of debt for 1300l. contracted in America, sworn to by
the plaintiff, another citizen of America, then at Paris,
before a person of the name of Bonomée, who
verified the affidavit in this manner; “Sworn at Paris
on (a certain day) before me, notary public,
magistrate, competent in this behalf, and duly
authorized by the laws of France to administer oaths
and take affidavits. (Signed) D. F. C. Bonomée.” And
the signature of Bonomée, and that he was a
magistrate of France authorized to administer oaths
and take affidavits, were verified by a proper affidavit
sworn here. An application was made for the
defendant's discharge in last Michaelmas term, upon
the ground of the insufficiency of the affidavit to hold
to bail; and the matter was debated several *384
times; when the Court, considering the question to be
of very general and extensive consequence, directed
the case to be set down for argument in the
peremptory paper of Hilary term last, upon a [365]
rule nisi for discharging the defendant on filing
common bail.
The point was then very fully debated by Park and
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Parnther on shewing cause against the rule, and by
Sir V. Gibbs and Scarlett in support of it. Upon the
principal question as to the existence and foundation
of the practice before the statute 12 Geo. 1, c. 29, and
its legality afterwards, there were cited Roberts v.
Slingsby , Walrond v. Van Moses , Regula Generalis
of 1654, Rios v. Belifante , Van Morsell v. Julian ,
Pomp v. Ludvigson , Ex parte Worsley , and Dalmer
v. Barnard . Upon a second question, which arose
incidentally, and which the Court also desired to hear
spoken to, how far the making or knowingly using
such an affidavit, if false, was punishable, the
plaintiff's counsel referred to 2 Hawk. ch. 22, s. 1, 38
& 39, which cites Waterer v. Freeman . Also to
Worsley v. Harrison , Rex v. Mawbey , Rex v.
Crossley , and to 2 East's P. C. 821, which cites R. v.
Blackburn , M. 36 Car. 2. Trem. P. C. 101. Upon this
part of the case.
Lord Ellenborough C.J. at the conclusion of the
argument said, that he had not the least doubt, that
any person making use of a false instrument in order
to pervert the course of justice was guilty of an
offence punishable by indictment. That the case of
The King v. Mawbey, and Others , went the whole
length of that proposition. Upon the principal point,
he adverted to the practice of receiving affidavits of
this description for the same purpose, which had
uniformly prevailed as far back as living memory
could trace it, and up to the [366] time of Lord Chief
Justice Lee; supported as it was by the note in 8
Mod.: and said, that before they could consign all the
Courts of Westminster-Hall to blame for so long a
period, in having, as was suggested, overleaped their
legitimate authority, it was their duty to examine at
leisure the very basis of the practice; to see whether it
might not be reconciled with the provisions of the
statute of the 12 Geo. 1, c. 29, which, as then advised,
he thought was intended only to restrain the acts of
plaintiffs in holding defendants to bail, and not to
fetter the discretion of the Court in this respect. That
affidavits sworn before the Lord Mayor of London
were generally received and acknowledged in foreign
countries; and that he should be very sorry to find
that the Courts of this country were under the
necessity of dealing out in future a narrower measure
of justice to foreign States than those States were in
the habit of administering to us.
Curia advisare vult.
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Lord Ellenborough C.J. now delivered the judgment
of the Court.
This was an application to the Court to discharge the
defendant, who had been held to bail under a Judge's
order, made upon an affidavit of debt sworn before
one Bonomée, a magistrate at Paris: and the questions
were, first, whether since the statute 12 Geo. 1, c. 29,
a defendant could be held to special bail, except
under the terms of that statute, viz. upon an affidavit
of the cause of action of the plaintiff, made before a
Judge or Commissioner of the Court, and filed
according to the custom of the Court, and by
indorsement on the writ of the amount sworn to, as
required by the statute. 2dly, whether, supposing a
defendant could be held to bail otherwise than under
the terms prescribed by the statute, [367] he could be
so in respect of an affidavit made out of England: and
if he might be held to bail under an affidavit made
out of England, whether there be any difference in
this respect between affidavits of debt made in
Ireland and Scotland, and affidavits made in foreign
parts not within His Majesty's dominions. 1st, the
statute 12 Geo. 1, c. 29, in the 1st section, generally
prohibits the holding to bail in Superior Courts for
causes of action under 10l.; and in Inferior Courts,
under 40s. This prohibition applies to every species
of holding to bail, as well by affidavit of the party,
sworn as required by the statute, as otherwise. The
first branch of the 1st section of the statute is
therefore restrictive of the authority of the Court in
this particular, as well as of the act of the plaintiff.
The second branch of this 1st section appears in
terms to be restrictive of the act of the plaintiff only:
at least it is capable of being so construed, if the
usage and practice of *385 the Court before and since
the statute should be found to accord with and
warrant that construction. The provision is that in
causes of action in the Superior Courts, not
amounting to 10l. &c., and where the plaintiff or
plaintiffs shall proceed by way of process against the
person, “he, she, or they shall not arrest or cause to
be arrested” the body of the defendant or defendants.
And the 2d section goes on to direct the mode in
which the plaintiff shall proceed by affidavit made
and filed, and by indorsement on the writ, in order to
arrest the defendant: and unless this mode be
pursued, the 2d section of the Act concludes with
directing that “the plaintiff or plaintiffs shall not
proceed to arrest the body of the defendant:” all
along, in its terms, adverting to the arrest made under
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the directions of the statute, as an arrest by the
plaintiff, and not as one by the Act of the [368] Court.
The usage of the Court anterior to the statute appears
to have been, to receive affidavits sworn abroad and
verified here, for the purpose of making orders
thereupon to hold defendants to bail. In a note
subjoined to the case of Sir John Walrond v. Van
Moses , Mich. 11 Geo. 1, being the year immediately
preceding the Stat. 12 Geo. 1, as reported in 8 Mod.
322, it is stated, “That the Court held that a plaintiff
who was in Holland, might make affidavit there, and
get it attested by a public notary, and that it should
be admitted as evidence to hold the defendant to
special bail here.” In other words, that the Court
might act upon evidence derived through the medium
of an affidavit made abroad, as a sufficient
foundation in point of fact whereupon to make an
order for holding the defendant to bail. Of course,
therefore, recognizing both the authority and the
practice of the Court on this subject. The Court seems
to have exercised an authority occasionally before the
12 Geo. 1, of regulating the sum in which the party,
taken upon a capias issued by them, should be held to
bail. It was the duty of the sheriff to have the body of
the defendant at the return of the writ; and he was
first obliged to take bail by Stat. H. 6 ; but the
amount in which he should require it, (not exceeding
of course the amount of damages mentioned in the
writ,) was left to his discretion, guided by such
information as he should be able to acquire. But the
Court, under whose authority the writ issued, in many
cases regulated the sum for which, and the cases in
which, bail should be required by its own discretion.
In Michaelmas term 1654 the Courts of K. B. and C.
P. by rules of their respective Courts made in nearly
the same words, expressly regulated this [369]
subject in respect to actions of covenant, of battery,
conspiracy, false imprisonment, and of slander; which
latter description of action they wholly excluded from
special bail; except the slander were of title, in which
case it was left to the discretion of the Judges
whether there should be any bail, and to what
amount. And it appears by Style's Practical Reg. 107,
that the Court exercised a power in some cases of
dispensing with bail altogether, and accepting from
the defendant a deposit to a competent amount in lieu
of it. And by the course of the Court long before the
Stat. 12 Geo. 1, bail was not requirable, if the
defendant were sued for a sum under 10l.; according
to Style's Pract. Reg. 115. In this and various other
instances the Court appears to have acted
authoritatively on the subject of bail, as a matter
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peculiarly within its province: but, in general, the
adjustment of the amount to which the party should
be held to bail was a matter left to be settled between
the plaintiff and the officer in the first instance,
according to the information afforded by the one, and
the discretion exercised thereupon by the other. But
as great abuses arose in cases of arrests on general
writs of trespass, which was the usual form of writs
before the stat. 13 Car. 2, c. 3, from the ignorance
which defendants laboured under as to the nature of
the action for which they were arrested; and which
the officer also laboured under, as to the amount for
which he should take bail for the defendant's
appearance; the statute last mentioned directed, that
no person arrested upon such general writ, in which
the true cause of action was not expressed, should be
forced to give security for his appearance at the
return of such writ in any sum exceeding 40l. This
statute however afforded an imperfect cure to the
evil; for the party [370] might still be arrested to the
amount of 40l., as he might have been before the
statute: and although a cause of action was required
to be expressed in the writ, in order to authorize the
arrest of the defendant to a larger amount than 40l.;
yet still the true cause of action was not required to
be verified by oath or otherwise; nor was the plaintiff
subjected to any particular penalty if the cause
actually expressed in the writ should not be the true
cause of action. The ultimate remedy *386 on this
subject was applied by the Stat. 12 Geo. 1: but this
statute, except so far as it prohibits the holding to bail
at all upon process out of the Superior Courts under
10l. &c., is not, as has before been observed, directly
restrictive of any authority antecedently exercised by
the Court, in respect to the holding to bail, but of the
act of the plaintiff, in arresting by his own unaided
act only. It left the practice therefore of arresting
under an order of Court as it stood before the Act.
The statute is in its letter and terms at least
susceptible of this restrained construction: it has
constantly received this construction ever since it was
passed; and has been acted upon accordingly as far
back as the practice of the Court can be ascertained
by living memory, or traced by accessible documents
of even an earlier period. The practice therefore may
be considered as affording a contemporary
construction of an Act, not in its terms inconsistent
therewith: and it is reasonable to suppose that the
Legislature might think that the same restrictions and
guards, which it imposed on arrests by the mere act
of the party, and of which it might be justly jealous,
were not equally necessary to be applied to arrests
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made under the check and control, and authorized by
the immediate sanction, of the Court. On the ground
therefore of such a practice as has obtained on this
subject, we [371] are of opinion that the Stat. 12 G. 1,
worded as it is, does not prohibit the holding to bail
by a Judge's order, without the affidavit and other
requisites which are prescribed in respect to arrest by
the mere act of the plaintiff himself.
The next question is, whether supposing a defendant
may be held to bail by a Judge's order, he may be so,
under an affidavit made out of England. And as, upon
this supposition, the forms prescribed by the statute
are unnecessary to be observed, upon a different
species of arrest than that to which the statute relates,
the amount of the debt may be made appear to the
Court by any such medium of evidence and
information, as was resorted to for that purpose
before the statute, or as the Court might judge to be
in its nature reasonable and proper. It is said in Style's
Prac. Reg. 105, (speaking of course before the
statute,) that if a plaintiff required special bail, he
ought to have shewn his cause of action before the
Judge who took the bail; “or else to draw such a
declaration as he would stand to, and shew it to the
defendant's attorney; that it might appear to the Court
that there was cause why special bail should be
given; otherwise common bail should be filed.” It
appears also from the note of the case in 8 Mod. 322,
immediately preceding the statute, that an affidavit
made in Holland, was admitted as competent
evidence to the Court of the cause of action
whereupon to hold the defendant to bail here. So that
it appears that the Court exercised this authority upon
various media of proof as to the nature and amount of
the plaintiff's demand, and amongst others through
that of affidavits made abroad. The most frequent
instances in which the Judges have made such orders
for holding to bail occur in respect to affidavits [372]
made in Scotland and Ireland, and the practice of
doing so has been very common both in this Court
and in C. P. as far back as any inquiry can be made
with effect. One case of applications to hold to bail
on foreign affidavits, in which the practice was drawn
under the observation of the Court, occurred in the
time of Lord Mansfield, v. Brown ; and another,
the case of Voght v. Elgin , in the time of Lord
Kenyon, Hil. 38 G. 3. It appears by a short note of the
latter case by my brother Lawrence, that the
defendant was held to bail, on an affidavit sworn
before the prætor at Hamburgh, on the motion of Mr.
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Gibbs. Search has been made, and we have found the
original affidavit filed in Court, made before the
prætor of Hamburgh, and his signature and authority
to administer an oath verified by affidavit made here;
as also the rule of Court granted on reading those
affidavits to hold the defendant to bail for 2000l. It
does not appear that any difference in point of reason
or law exists between the holding to bail, as it is
practised in the more frequent instances of affidavits
made in Ireland and Scotland, and of affidavits made
in places abroad out of His Majesty's dominions. The
practice in both cases must be equally warranted or
unwarranted. In none of these cases can the party
making a false affidavit be indicted specifically for
the crime of perjury in the Courts of this country: but
in all of them, as far as the party is punishable at all,
he is punishable for a misdemeanor, in procuring the
Court to make an order to hold to bail by means and
upon the credit of a false and fraudulent voucher of a
fact produced and published by him for that purpose.
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The party injured thereby is not without his remedy;
nor the Court without its due means of punishment in
respect of the abuse and contempt committed [373]
against its authority. And as such a *387 practice as
has been stated, not inconsistent with the letter of the
Act of 12 G. 1, has prevailed ever since the Act, and
by probable inference and presumption before the Act
also; we are of opinion that the practice itself may be
sustained in point of law, as to both descriptions of
affidavits made out of England and verified here;
namely, those made abroad out of His Majesty's
dominions before some magistrate or person of
competent authority there, as well as before Judges
and other persons authorized to take affidavits in
Ireland and Scotland; and therefore that this rule must
be discharged.
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