Satterlee v. Lynch — 6 Hill & Den. 228

Majority

p. 228

Satterlee vs. Lynch.

Headnote

Affidavits to hold to bail, and by way of showing cause of action on motions to mitigate or discharge bail, must be positive, and must make out a prima facie case against the defendant.

On showing cause of action in trover, the affidavits produced on the part of the • plaintiff disclosed that the property in question was obtained from him under color of a contract, which he claimed the right of avoiding because of certain fraudulent representations of the defendant; but the circumstances which led to the making of the contract were not set forth, nor did it appear in what the alleged fraud consisted, or what the representations of the defendant were. Held, that the affidavits were insufficient.

The defendant was arrested on a capias ad respondendum at the suit of the plaintiff, in an action of trover, for §1600 damages. The circuit judge made an order that the plaintiff shew cause of action. The plaintiff appeared and made affidavit that he had a good cause of action against the defendant, as he was advised by his counsel and believed; and that he had been defrauded of a large sum of money by the defendant, but that he was unable to state fully the merits of the case in consequence of the absence of one Howard. The affidavit of Howard was afterwards produced, who swore that he was the agent of the plaintiff in the purchase of certain property of which the defendant pretended to be the owner; that in the negotiation, the defendant, with a preconceived design to deceive the deponent and defraud the plaintiff, fraudulently and wilfully made untrue representations to the deponent, and thereby deceived the deponent and defrauded the plaintiff; that by these means the defendant obtained from the deponent, as agent for the plaintiff, the sum of §200; and that, in consequence of such representations, the plaintiff had sustained damages to §800 at least. The judge made an order that the defendant be discharged out of custody on filing common bail.

E. A. Doolittle, for the plaintiff, moved, by way of appeal, to vacate the judge’s order.

He cited 2 R. S. 348, § 7, sub. 3;

p. 229

Murray v. Burling, ( 10 John. 172 ;) Cary v. Hotailing, ( 1 Hill, 311 ;) Welsh v. Hill, ( 2 John. 100 ;) Charter v. Jaques, (2 Cowp. 529.)

P. Cagger, for the defendant.

Although nothing is stated in these papers with much precision, it may be inferred from them that the plaintiff, through his agent, Howard, purchased some kind of property from the defendant, and paid him $200 for it. And it is quite probable, though the fact is not alleged, that .the plaintiff is suing to get back the money, or whatever else he parted with as the consideration for the property obtained from the defendant. If my conjecture is right, the fact should have been plainly stated. And then, instead of charging fraud generally, the plaintiff should have told us in what the fraud consisted, or what untrue representations the defendant made. There was a purchase and sale of property, and although the case may possibly be such that the plaintiff can avoid the contract and bring trover, the presumption is against him. He must show that there was such a fraud as would render the contract void at his election. That has not been done. Affidavits to hold to bail, and by way of shewing cause of action on a motion to mitigate bail, must be positive, and must make out a prima facie case against the defendant,^[1] These affidavits were insufficient.

Motion denied.

(a) (a) An affidavit to hold to bail in an action for a tort must not only be positive, but it must state the facts so much at large, and with such precision, that the judge or officer may be enabled to decide on the amount of bail which ought to be required, and that the plaintiff may be indicted for peijury if he swear falsely. (Towers v. Kingston, 1 Browne's Rep. 33, 35 ; Pontingen v. Williams, id., 206 ; Lewis v. Brackenridge, 1 Blackf. 112 , 114; Pearson v. Pickett, 1 McCord’s Rep. 472, 3, 4; Clason v. Gould, 2 Cain. Rep. 47 ; Norton v. Barnum, 20 Johns. Rep. 337 ; Leonard v. Caskin, Bee's Adm. Rep. 146 ; Grah. Pr. 160,1; Petersd. On Bail, 142 to 148, 167, 8.)