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have made that inquiry, and to have communicated the
sworn, pursuant to the 12
copy of the
Where a bill BARSTOW had obtained a rule, calling upon the plaintiff of Middleser issues, upon
to shew cause why the bail-bond, executed in this case, an affidavit of should not be given up to be cancelled, and, in the mean debt duly
time, that proceedings should be stayed, upon an affidavit, Geo. 1, c. 29, stating the following facts. A bill of Middlesex was issued s. 2, an office against defendant, at the suit of the plaintiff, on an affidasame affidavit vit of debt, sworn at the bill of Middlesex office, before will authorize the proper officer. The defendant could not be arrested under the issuing of a latitat into that process, and the plaintiff's attorney, having obtained a different
an office copy of the affidavit of debt, filed it at the office of county.
the signer of writs, and sued out a writ of latitat against
(a) Which enacts, “that in all action; which affidavit may be
Hutchinson shewed cause. He produced an affidavit, stating that it was the constant practice for the officers of the Court to issue writs into one county, upon office copies of affidavits, sworn for the purpose of suing out previous writs into other counties; and contended, that such a practice was consistent with the intent and object of the act of parliament. A writ of latitat is a continuance of a bill of Middlesex. According to the ancient practice, a bill of Middlesex was always sued out in the first instance ; and, in the present day, every writ of latitat necessarily assumes the previous issuing of a bill of Middlesex (a). Dalton v. Barnes (b), will perhaps be relied on by the other side ; but it differs materially from the present case. It was, undoubtedly, there held that a special capias, issued upon an affidavit of debt, sworn at the bill of Middlesex office, was irregular; but the ground of that decision was, that the second process there was in its nature essentially different from the first. Here, the whole proceeding is by bill, and the second process is a continuance of the first. The view of the subject now suggested, is the same that was taken by the court of Common Pleas, in the very recent case of Dorville v. Whoomwell (c). It was there ruled, that where a first capias is issued on an affidavit of debt, filed with the filacer of one county, if, instead of a testatum, a second capias is issued into another county, a new affidavit of debt must be filed with the filacer of the second county. The very ground of the decision in that case, namely, that the second process was not a testatum, renders it an authority in favour of the proeeedings here; because a latitat is a testatum bill of Middlesex(a). So, in a still later case of Evans v. Bidgood (d), where the defendant was arrested on a testatum capias, into Devonshire, without any Court, or else before the officer who (a) Post, 237 (a). shall issue, such process, or his de- (6) 1 M. & S. 230. puty; which oath such officer, or (c) 10 J. B. Moore, 318, 3 his deputy, are empowered to ad- Bingh. 39. minister."
(d) 4 Bingh. 63.
affidavit filed on issuing the testatum capias, an affidavit
Barstow, in support of the rule. The course pursued by the plaintiff in this case, must be admitted to be conformable to the general practice; but if that practice is inconsistent with sound principles, and with the provisions of the statute, it cannot, however long persevered in, be sanctioned by the Court. The ancient common law practice cannot be prayed in aid of the present proceedings, if, indeed, it could be relied upon in any case, because it does not appear that the bill of Middlesex has been returned by the sheriff; whereas, by the ancient practice, it was necessary that a return of non est inventus should be made by the sheriff to the bill of Middlesex, before the writ of latitat could be sued out; which return was always recited in the writ. But the ancient practice has in reality no bearing upon the important question now before the Court, which depends entirely upon the construction to be given to the language of the second section of the statute, 12 Geo. 1, c. 29 (a). That statute (except as regarded the principality of Wales, and the counties Palatine, with reference to which, a previous act of 11 & 12 W. 3, c. 9, had passed), first rendered an affidavit of debt necessary, as a preliminary to the holding a party to bail ; and it provided, that no person should be held to bail, except upon an affidavit of debt sworn before a judge, or commissioner of the court out of which the process issued, or before the officer issuing the process, or his deputy. What authority can an office copy of the affidavit upon which a bill of Middlesex has issued, give to the signer of the writs to issue a latitat? Clearly none. The moment the bill of Middlesex issues, that affidavit is functus
(a) Ante, 232 (a).
officio : it would, indeed, authorize the issuing of an alias or pluries writ, from the same office into the same county but it could not possibly authorize the issuing of a different writ, from a different office, into a different county, Where the affidavit is sworn before the signer of the writs, and a latital is thereupon issued into one county, a subsequent writ may be issued into any other county, Middlesex excepted, upon the same affidavit; because, the signer of the writs is the proper officer for the issuing of writs into every county, except Middlesex. And this is the real distinction upon which the question turns; namely, that an affidavit sworn before a particular officer, will authorize the issuing of writs into every county into which that officer has authority to send process; but into no other : and it will be found to have been recognized and acted upon in every case which has been decided upon the subject. The cases cited on the other side, are, in reality, no authorities in favour of the present plaintiff. It is true, that in Dalton v. Barnes (a), the second process was in point of fact, a special capias, issued upon an affidavit sworn at the bill of Middlesex office. But that was not the reason assigned by the Court for holding the process irregular; on the contrary, they declared, in the most general terms, that "an affidavit made for one specific object, could not be transferred to another.” Here, that very thing is attempted to be done ; for the affidavit was made for the specific object of arresting the defendant under one process in the county of Middlesex, and it is transferred to the different object of arresting him under different process in the county of Surrey. Again, the Court there said, that “perjury could not be assigned on the office copy of the affidavit;” and so here, an indictment for perjury could not be supported upon the office copy of the affidavit, nor, indeed, even upon the original affidavit itself, unless a connexion could be shewn between the first and second process, which is impossible; and even
(a) 1 M. & S. 230.
if it could be shewn, the additional burthen of proof which would then rest upon the defendant, in his character of prosecutor, would be a difficulty to which the plaintiff has no right to expose him. In Boyd v. Durand (a), the second process issued under the authority of an office copy of an affidavit of debt, and was held regular; but that was upon the ground that both the first and second process were issued by the same officer, and, consequently, that the affidavit must have been sworn before the officer by whom the process in question was issued. Upon precisely the same principle, in Anderson v. Hayman (6), the second process was held irregular; for there the second process was not issued by the same officer who issued the first, and; consequently, there was no affidavit sworn before the second officer to authorize the writ which he issued : and the distinction already alluded to, as laid down in Dalton v Barnes (c), was there referred to and recognised. It must be admitted that, in Dorville v. Whoomwell (d), the Court intimated, that if the plaintiff had sued out a testatum, his second process would have been regular ; but still, upon the same principle, namely, that the same officer had authority to issue process for both counties; and they referred to the decision in Anderson v. Hayman(b), which they said was founded in good sense. In the latest case upon this subject, Evans v. Bidgood (e), the Court declared expressly that a testatum should have been issued, because the officer by whom the first process was issued, was also the officer authorized to issue the second process. Upon the whole, then, it seems clear that the words of the statute, the principle of the decided cases, and the good sense and reason of the thing, all warrant the defendant in contending that an affidavit sworn for the purpose of issuing process into one county, will not authorize the issuing of process into a different county, unless the officer before
(a) 2 Taunt. 161.
(6) 8 Taunt. 242, 2 J. B. Moore, 192.
(c) 1 M. & S. 230.
(d) 3 Bing. 39, 10 J.B. Moore, 318.
(e) 4 Bing. 63.