Penrose v. Evans

1 Tapp. Rep. 172

• Court: Harrison County Court of Common Pleas
• Decided: August 15, 1817
• Status: Published

Opinion

President.

As the statute law authorises the court to order special bail to be given, on the return of a summons, if the particular circumstances of the case require it, or the suit is brought on a bond, sealed bill, bill of exchange, note for the payment of a sum of money certain, or on any contract, on which the plaintiff or his agent shall file an affidavit that the sum due, or damages sustained, exceed seventy dollars, it will be sufficient to consider the question, whether the plaintiff is entitled to special bail in this case; because, if he is so entitled, it would not avail the defendant to obtain the object of his motion, if he would remain liable to be ordered to file special bail.

On this writ we are informed that the plaintiff intends to declare in trover for bank notes, which be believes have got into the defendant’s possession. The affidavit swears to a belief in facts which, if true, amount to a felony; but does it swear to any fact ? The whole substance of it is, that the plaintiff believes that the defendant has opened a letter, in which he further believes there was a sum of money, which had been taken by the defendant, vjhereby he has sustained damages. An affidavit for this purpose must be distinct and positive as to the sum due, or damages sustained, so that perjury might be assigned on it. The plaintiff may believe these things of the defendant on very slight evidence. We cannot estimate the credulity or incredulity of men, but must act on the evidence of facts; and as none are sworn to by the affidavit, it is not sufficient to hold the defendant to special bail. — Motion granted.