1862. MCPHELIM to proceed in a suit, it repels the idea of want of probable cause; and if he has probable cause for proceeding in a suit, he is not liable to an action, although he may have. against WELDON. been actuated by malicious motives. The pleadings in this case shew that there was probable cause for refusing to discharge the plaintiff, and the Judge should have so directed the jury. There cannot be a want of probable cause while a suit is pending, and it was not shewn here that the suit was determined. Gilding v. Eyre (a). The question of malice should not have been left to the jury; it is a question of law. 4. The defendant was entitled to a nonsuit, because the plaintiff did not prove enough to maintain his action. It is no reason for not granting a nonsuit, where no cause of action is proved, that the defendant might have demurred to the declaration. Whitworth v. Hall (b). Cur. adv. vull. PARKER, J., now delivered the judgment of the Court. We intimated at the close of the argument, in the last term. that in our opinion, the verdict could not be sustained. We have seen nothing, on further consideration, to alter that opinion. Indeed, we are all satisfied there is no foundation for the action whatever. The arrest of the plaintiff, at the suit of the defendant, and his imprisonment thereunder, were perfectly legal. The debt, on which the bailable capias issued, was never actually paid; there has been no order of the Court or a Judge, to set aside that writ, or to discharge the now plaintiff from the arrest or imprisonment thereunder; neither has any legal determination of that suit been shewn. Proof, that the plaintiff had not declared in an action removed by habeas corpus, within two terms, is not sufficient evidence of a determination of the suit, to support an action for malicious arrest. Norrish v. Richard (c). But proof that no declaration was filed or delivered, within a year after the return of the writ is sufficient, because the (a) 10 C. B., N. S., 592. (b) 2 B. & Ad. 695. (c) 3 A. & E. 733. cause The 1862. MCPHELIM against cause is then out of Court. Pierce v. Street (a). plaintiff, here, relies on an equitable discharge of the debt, by reason of the debt having been secured by a contemporaneous mortgage on freehold property, and the equity WELDON. of redemption having been levied on by the Sheriff, and sold to the then plaintiff, the mortgagee, whereby (the sale being necessarily made subject to the mortgage), the mortgage debt was in equity extinguished. Waiving, for the present, any question as to the agency, and assuming Weldon to be the real purchaser from the Sheriff; and Morrison the mere nominal purchaser on behalf of Weldon, it afforded no defence on the trial of the issue on the record, whatever material it may have afforded for a plea puis darrein continuance, or for a summary application to the Court or a Judge, to be discharged from prison. There is no reason to suppose that any order for discharge would be made without payment of costs. appears that the now defendant, the then plaintiff, obviated the necessity of any such application, by himself ordering the discharge, as soon as the Judge had decided on the application in Equity, that the mortgage debt was extinguished by the purchase of the equity of redemption. It It is unnecessary for us to say anything as to the correctness of that decision in Equity. It was given in accordance with a previous decision of the Master of the Rolls (b), which was not appealed from, and must stand good until reversed and which we are not prepared to question. (a) 3 B. & Ad. 397 (b) In re Beckwith, a Bankrupt. In this case, Beckwith had given a mortgage to Marsh, for £1.000, as collateral security for the payment of certain notes, on which Marsh was liable, as indorser, and which he was obliged to pay. Beckwith's equity of redemption was sold under execution, and purchased by Marsh, for £5, and he afterwards sold the property for £540. Beckwith having become bankrupt, Marsh claimed against his estate, the balance due on the promissory notes, after giving credit for the £540, for which he had sold the property; but the commissioner decided, that his claim must be reduced by the amount secured by the mortgage, holding, that by the purchase of the equity of redemption, the mortgagee had settled the value of the property, at the amount bid, over and above the mortgage. On appeal, this decision was affirmed by the Master of the Rolls, who held, that by the sale of the equity of redemption, it was conclusively proved, that the property was worth more than the debt; and that when the mortgagee became vested with the equity of redemption, the debt secured by the mortgage was extinguished. — REPORTER. 1862. MCPHELIM against It proceeds upon the principle, that the levy on the equity of redemption, and sale subject to the mortgage, is an admission that the mortgaged property is worth more WELDON. than the amount due on the mortgage; and it would seem from some late cases, that a stranger, being the purchaser of the equity of redemption, would be liable in Equity, to discharge the mortgage, or at least to indemnify the mortgagor against the covenents therein contained (a). The rule for setting aside the verdict, is made on the simple ground, that the legal imprisonment of the now plaintiff, at the suit of the now defendant, was terminated by the voluntary order of the then plaintiff, who cannot be made subject to damages for not giving that order at an earlier period; and, in short, that an action cannot be maintained for omitting to do an act which the party is not legally bound to do, whatever malice may have actuated the non-feasance. If the plaintiff considered himself entitled to his discharge, immediately after the Sheriff's sale, it is rather singular he did not apply for it. The discharge from arrest is in the discretion of the Court or a Judge, and may be exercised where no action could be maintained, in consequence of the proceedings not being at an end. Whitworth v. Hall (b). In Page v. Wiple (c), Lord Ellenborough says: "Is it the duty of a plaintiff to "run after his writ which has properly issued, in order to 66 stop the execution of it; or, is it not rather the concern "of the debtor when he satisfies the demand, to ask for a "countermand of the writ, or an order for his discharge?" It is a sufficient answer to Mr. Palmer's proposition, that in every case, a plaintiff proving the averments in his declaration, is entitled to a verdict, to cite the decision in Whitworth v. Hall (d). Other cases might be referred to, in which the Court has refused to disturb a verdict, on the ground, that a material averment has been omitted in the declaration, because, after verdict, it will be presumed that the fact essential to the action was proved without being averred, although the declaration might be demur (a) See, In re Crozier, 24 Grant, 537. (b) 2 B. & Ad. 695. (d) 2 B. & Ad. 695. red red to for want of such averment. The objection may be taken on motion for a nonsuit, for want of the proof. 1862. Rule absolute. MCPHELIM against WELDON. THO LYONS against ELLISON. "before me," were omitted in the jurat of to to hold to bail, an affidavit, taken before a commissioner: Held, per Carter, C. J., Wilmot and (Parker, J., that the affida❤ HOMSON, on behalf of the bail in this action, moved The words in Easter term, to have an exoneretur entered on the bail piece, and the recognizance roll set aside, on the ground that what purported to be the affidavit to hold bail, taken before a Commissioner for taking affidavits, was a nullity, inasmuch as the words "before me" were omitted from the jurat. It appeared, that the defendant Ritchie, J. J. was arrested in October, 1860; that he put in special bail dissentiente), on the 9th November; that issue was joined on the 28th vit was a December; and that a verdict was found for the plaintiff, nullity; and on application at the trial at the York Sittings, June 25th, 1861. A ca. of the bail, an sa. to fix the bail was issued August 30th, 1861, and an was entered action brought on the recognizance, October 19th, 1861. piece, and the recognizance The bail swore that the defendant left the Province with- roll set aside out their knowledge, shortly after special bail was put in, late for the and went to the United States, and had never returned, after being bail to apply. and they believed never would return. D. 8. Kerr opposed the motion. The bail can take no objection to the affidavit, which the defendant himself could not have taken; and it would be too late for him to object to any defect in the affidavit, after perfecting bail, and taking other steps in the cause. Chapman v. Snow (a); Jones v. Price (b); D'Argent v. Vivant (c); Shawman v. Walley (d); Knight v. Dorsy (e); Tucker v. Colegate (f); Norton v. Danvers (g). Neither would it (a) 1 B. & P. 132. (b) 1 East, 81. (e) 1 B. & B. 48. (g) 7 T. R. 375, (c) 1 East, 330. be exoneretur on the bail It is not too sued on their recognizance. 1862. LYONS against be any answer by the defendant, that he was ignorant of the defect, as he was bound to be aware of it, as soon as he was aware of the proceedings. Esdaile v. Davis ELLISON. (a). The mere omission, ex post facto, of two formal words in the jurat, will not vitiate the affidavit; perjury could be assigned on it; and the Courts have permitted similar defects in affidavits, to be amended, as by inserting the place of swearing. [RITCHIE, J. Here there is no affidavit, as the defects render it a nullity. The re being no affidavit, for what do you make the bail liable?] For the amount endorsed on the writ, which is the same as that in the affidavit, and is the amount for which the defendant is arrested. 2 Rev. Stat. 353. It is not denied that the defendant made the affidavit, and that the person whose name is subscribed to the jurat had authority to administer an oath. The application should have been made in the suit against the bail. [RITCHIE, J. The bail piece was taken in the first suit, and the application to enter an exoneretur thereon is properly made in the same suit.] It is too late to enter an exoneretur, after the bail piece has been enrolled. Thomson, in reply. The cases cited on the other side were applications made by the defendants: here the application is made by the bail; which is a very different case. It cannot be said that they have slept on their rights: they are not bound to lock after what the defendant is doing. If an application for relief could not be made after the bail-piece is enrolled, the bail might be deprived of all remedy, inasmuch as the plaintiff can enroll the bailpiece, at any time before suing the bail; but the bail may apply at any time before judgment recovered against them. Cur. adv. vult. RITCHIE, J., now delivered the judgment of himself, CARTER, C. J., and WILMOT, J. This is an application on behalf of bail, sued on a recognizance of bail, to enter an exoneretur on the bailpiece, and set aside the recognizance of bail, on the ground (a) 6 Dowl, 465. that |