Commonwealth v. Fritz ( 1839 )

Per Curiam.—

It is undoubtedly true that, in general, an affidavit to hold to bail is not sufficiently positive and certain, if it aver that the defendant is indebted to the plaintiff’ in a certain sum “ as appears” by books and accounts. The law, in most cases, requires that the deponent should testify to the indebtedness without qualification. But to this general rule there are exceptions, which are based upon the principle that it would, in particular cases, be unreasonable to require the degree of positiveness which is ordinarily called for. (See Pet. on Bail, 142—147.) The circumstances of the present case form one of the exceptions. The laws distribute the administrative functions of government among many officers, each having respective duties to perform. In general, no one officer can, from the nature of things, aver his own knowledge of all the materials constituting the liability of the defendant. Here, an auditing officer makes up the accounts of the collectors of the Commonwealth, and the Treasurer receives from them the moneys of the State which they have received. There then seems to be no way of obtaining just information as to the amount at issue, but by reference to the accounts kept in the public departments.

Rule discharged.