The opinion of the Court was delivered by
Sergeant, J.It does not seem to have been the intention of the legislature by the first clause of the 4th section of the act of 13th June, 1836, to change the present rules as to the mode in which the plaintiff must state his cause of action,'in his affidavit to hold to bail. The amount in which the defendant is indebted, or the value of the property taken or detained, or the damages sustained, may be set forth to the best of the deponent’s knowledge and belief: but the cause of action must be positively sworn to, or sufficient facts and circumstances must be set forth to warrant the inference that there exists a- good cause of action. To permit a plaintiff in every case to arrest upon an affidavit of a cause of action, to the best of his knowledge and belief, might lead to oppression: and no plaintiff can be considered entitled to demand bail for a cause of action which he can neither positively swear to, nor allege sufficient facts and circumstances in the affidavit, to satisfy the court or a judge of its existence.
Taking this to be the construction of the recent act on this point, the question is whether the cause of action in this affidavit, as distinguished from the amount demanded, is positive; and we are of opinion that the allegations that the hundred shares were sold by the plaintiff' to the defendant, that the defendant contracted to pay for the same, and refused to ratify his contract, are positively asserted, though the language is not quite so explicit as it might have been, and has occasioned considerable difficulty in coming to this conclusion.
Rule discharged.