Harrison v. M'Kinney ( 1802 )

The Judges

were unanimously of opinion, that the proof in this case, was too vague and indefinite for the jury to found any verdict upon ; it was clearly a finding without evidence, for none appears to have been offered of the sum due at the time of acknowledgment; nor was there any document mentioned, to which, by reference, the amount could be rendered certain. It is said, there was an affidavit annexed to the writ, which mentions the exact sum due ; but it also appears, that this affidavit was annexed to the writ after the service and after the acknowledgment made by the defendant, so that it formed no part of the proceedings in the cause at that time ; and therefore it could not be referred to, as the defendant was totally ignorant of it.

Besides, there is something mysterious in this affidavit being annexed after the service of the writ; for it is well known to be the practice, to endorse affidavits of the subsisting debt on, or to annex them to, the original writ before service, as a rule to the sheriff in taking bail, but never afterwards; to say no more of it, it was a very irregular mode of proceeding.

Rule for new trial made absolute.

Present, Gexmke, Johnson, Thesevant and Brevaru...