1766. Friday, 28th [ 1991 ] a wife to the REX vers, ANNE BROOKE and THOMAS FLADGATE: Or The Court will ANNE GREGORY, the wife of Abraham Gregory, not deliver up was brought up, upon the return of a Habeas Cor husband where pus directed to her mother and uncle, which had issued she swears the at the application of Abraham Gregory, her husband. peace against She appeared to have been very ill used by her husband; and to have thereupon fled from him, and come to the defendants for security and protection: and she was ready to swear, and actually did swear the peace against him. him. [S Burr. 1484. Str. 444. THE COURT would not order her to be delivered to her husband, as his Counsel demanded; but on the con1 Burr. 542.] trary, told her "she was at liberty to go where she "thought proper;" and offered her, and (at her request) gave her a tipstaff to secure her from any insult in her return to her friends. Mandamus to register and certify a dissenting Meet ing House. [1992] REX vers. Justices and Clerk of the Peace for the County of Derby. (S. C. 1. Bl. 606.) R. Blackstone and Mr. Morton shewed cause, on be MR. half of the defendants, against a mandamus to oblige them to register and certify a Dissenting Meeting-House at Melbourn in that county. See the Toleration Act, 1 W. & M. St. 1. c. 18. § 1, and § 19. 1st Objection. Non constat what species of Protestant Dissenters they are of; nor in what points they dissent. 2d Objection. Non constat that it is a House proper, to be registered. 3d Objection. They have not brought themselves within the qualifications of the Act. See 1 Lord Raym, 125. Green and fifteen others versus Pope; where a mandamus was issued upon this Act of Parliament, directed to the Bishop of Chester's Register, commanding him to register the certificate of a Place of Meeting of Protestant Dissenters: and an action was brought for a false return to it. Lord MANSFIELD-No inconvenience can attend the registering this Meeting-House. The registry and certificate do not prove that they are within the Act:" They will still be obliged to shew that they are within the requisite qualifications, if called upon; notwithstanding the register and certificate. And if, in fact, they are not within the qualifications, the Justices may return that they are not," if they think proper. Rule made absolute. 1766. REX V. DERBY. [S. P. 6. mod. 310.] BARCLAY et Al'. Assignees of JOHN STYLES and COPE- THE HE question was "Whether the defendant should "be discharged on common bail: upon an objection "to the sufficiency of the affidavit made by the plaintiffs "to hold the defendant to special bail." The Assignees swore to the debt in these words: "As 76 appears to these deponents, by the last examination of "the Bankrupts, and that these deponents verily believe." And they swore that they themselves had not received the debt or any part of it; and that they believe it to be still due. The circumstances of this case were these. John and Copeland Styles were partners, and became bankrupts. The plaintiffs were Assignees under the commission. This was a debt due to the bankrupts from Hunt; and was so declared by the bankrupts upon their examination, in the following manner: viz. Their second schedule includes a debt due from "Thomas Hunt, by balance of an accouut £5800: and they swore that such second schedule contained a true account, to the best of their remembrance and belief." John Styles resided in England: Copeland resided abroad, at Bermudas, and knew nothing of the matter. John, who alone could swear to the debt, refused to make affidavit of it. Yesterday, (27th November 1766) Mr. Stowe shewed cause on behalf of the plaintiffs, why the defendant should not be discharged on common bail. Affidavit by Assignees, as appears from Books, sufficient to hold to bail. [Vide post 2283. 2 Bosan. 298. 1 Durn. 84. 2 Bl. Rep. 740.] There are two causes. One of them was brought in the Mayor's Court in London; and the defendant has removed it by Habeas Corpus, into this Court. There [1993] fore, by the course of the Court, the defendant must put in bail here. As to the other cause, which is brought here, and in which this affidavit is made :-It is the utmost that the assignees can swear. The bankrupts have refused to swear to the debt. Hunt, the defendant, is the father-in-law V. HUNT. 1766. of the bankrupts. Therefore the assignees could go no further than they have done. 'There is a case in 2 BARCLAY Barnes 65. Tribe et al. versus Pratt; where the assig nees only swore "that the defendant was indebted to "them £1,300. as appeared by an account under the "bankrupt's hand:" and the Court thought a positive affidavit of the debt necessary; " unless it had appeared, "that the bankrupt refused to make the same." Here, he has refused. He offered to accept the same bail as the defendant had already given to the Sheriff. Sir Fletcher Norton and Mr. Dunning,' contra, for the defendant No person was by common law liable to be arrested by his body, on mesne process. Therefore the defendant ought not to be deprived of his liberty, without opportu nity to defend himself, unless by positive affidavit. There fore the Court have always required a precise positive affidavit. It has never been relaxed, but in the case of an executor'; in which case, no one else can make such an affidavit. The not requiring bail will not prevent the plaintiffs having justice. Perhaps, requiring bail has done more harm than good. Here, the bankrupts are both alive, and might swear to the debt, if they should think proper. They refuse ; which may be, because they may know there is no debt. This examination is only a schedule of their debts. They give up their all. But they may mistake. They only swear, even to that account," that it is a true ac"count, to the best of their remembrance and belief." But they can not perhaps be quite precise, as to all the particulars of it. Besides, as there are qualifying and restrictive words in their examination, viz. " to the best of their remem"brance and belief," an affidavit so qualified and restricted would not have been sufficient to hold to bail. Therefore this, even put all together, is no proof of a [1994] debt. The stream can not flow higher than the fountain. The affidavit can receive no additional strength by the reference to the examination; for, the examination referring the remembrance and belief to the whole of it, refers them to every part of it; and consequently refers them to this particular debt. Whereas the highest degree of evidence ought to be produced; and here, the bankrupts themselves might be had. Therefore this present affidavit is only the second authority; not the best. Barnes's note, of Tribe and others against Pratt, shews that the bankrupts ought to make the affidavit; it can not be supplied by any other affidavit. It ought to be posi 1766. tive, because it can not be contradicted. And for the same reason, it cannot be bolstered up or supplied by a second atidavit. We have an affidavit " that the bank- BARCLAY "rupt can not swear to this debt;" he acknowledges that it is a mistake in his examination. V. HUNT. * The reason 18 "that De Who could be indicted for perjury, if this affidavit should be false? Not the maker of it; not the bankrupt. given in 2 Str. Therefore no one can. Consequently, such an affidavit 1157. Heathought not to be regarded, or have any kind of weight. cote v. Goslin, It appears, therefore, upon the whole of this case, that no positive debt is sworn to; nor is there any person that is “ indictable for perjury, in case that which is sworn, should prove to be false. fendants may not be "harassed." They cited the following cases where the defendants had been discharged on common bail. Pasch. 1754. 27 G. 2. Fludyer, Assignee of Jackson, versus Greenwood and Hughes. P. 18. G. 2. Claphamson versus Bowman, 2 Str. 1226. Walrond versus Fransham, 2 Str. 1219. Rios versus Belifante, 2 Str. 1209. Heathcote versus Goslin, 2 Str. 1157. Tr. 23 G. 2. Mill versus Fryer. M. 26 G. 2. Kelly versus Devereux,* B. R. and Pomp [*S.C.Say.59.] versus Ludvigsont. Mich. 32 G. 2. ↑ V. ante, Vol. 2. p. 655. where many of these Cases are collected together: and also Vol. 2. p. 1032. Moultby v. Richardson. THE COURT took time till this day, to look into the cases. CUR'. advisare vult. Lord MANSFIELD now delivered the opinion of the Court. We are all clearly of opinion, that the affidavit is sufficient to hold the defendant to bail. As to the case of Fludyer, Assignee of Jackson, versus [1995] Hughes, in 27 G. 2. cited by Mr. Dunning-He was misinformed. I have two notes of it; one, taken by my brother Yates; the other, communicated to me by my brother ASTON. According to the former, the defendant was discharged on common bail; because the affidavit only referred to the bankrupt's books, without adding that the plaintiff believed it to be true. Mr. Justice ASTON'S note of the same case is, that the plaintiff made affidavit "that the defendant stood indebted, &c. as appears to "him by the books of the bankrupt.' The defendant was discharged on common bail; the affidavit being only by way of reference. And in the latter note, it is mentioned, that two former cases were cited; viz. Kelly V. ante 655. versus Devereux, and § Walrond versus Fransham; both in Margine of which were given up by Mr. Pratt, because the affida- $2 Str. 1219. vit was only by way of reference. We have sent for that 1766. BARCLAY V. HUNT. * V. ante 655. a long list of them. 7 Qu. the name of the Plaintiff in this Case. affidavit; and it is thus-" that he was indebted, &c. as appears by the books and ledger of J. J." It is manifest by a string of cases, that words of reference never are sufficient in an affidavit to hold to special bail; such words (for instance) as these, as appears by "books or papers, or any thing referred to;" or any other words of mere reference. In the case of t versus Vanderest, P. 3. G. 2. It was determined "that in the case of an executor, "if the executor swears to the books, and that he believes I have a note "them to contain a true account, and that the debt is of Elf v. Van-still unpaid," it is sufficient to hold to special bail. deresk, in the very same term; and another, in the next Term, of Lucas v. Vanderesch; but not to the same point. + V. ante. In the case of Maultby versus Richardson‡, Trin. 1760, Vol. 2. p. 1032. swearing to the debt, as the plaintiff computes it," was allowed to be sufficient. This Case is not in Sir John Strange's Reports; though the Rule was made upon his motion. In the case of Holmes et al. versus Mendes Cesis et al. Trin. 1733. § 6 & 7 G. 2. the plaintiffs were assignees under a commission of bankruptcy, and swore that the defendant was " indebted to them in £600. as appears "by the bankrupt's books." But the assignees had not there sworn that they believed the debt to be due. Which the Court took particular notice of: and made the rule absolute to discharge the defendant on common bail. But, on the reason of the thing and the authorities, the defendant ought in the present case to be holden to bail ; [1996] the affidavit being sufficiently positive, as the case is circumstanced, to support a demand of special bail. The Court ought never to lay down a rule to be construed so rigidly as that it may put unreasonable difficul ties upon the suitors, and render them liable to inconve niences worse than those which the rule was intended to prevent. As to what Sir Fletcher Norton said, "that bills may "have been paid, after the last examination"-If that were really the fact, it would not save the person who should swear in the evasive manner that this affidavit would, in such case, be expressed, either from losing the security of bail, or from criminal prosecution; he might surely be indicted for perjury, upon such an evasive oath, as it would, upon that supposition, be. In Dr. Turlington's case, he swore to the sum due upon one side of the account only, without regarding the other side of it. But that was a mere evasion, and so treated. So, in a case from Plymouth, there was a like manner of swearing; and it was considered as a gross evasion; |