that the document professing to be an affidavit to hold to bail, and to have been made before a commissioner, was not properly sworn, the jurat omitting the words "before me."

16

A mere imperfection constituting an irregularity in the affidavit to hold to bail, may, no doubt, as regards the interference of the Court, on motion, be waived, by putting in bail above; but what professes to be an affidavit in this case, is, I think, under the authorities, an absolute nullity; and though an irregularity may be waived, a nullity cannot. In Reg. v. Inhabitants of Bloxham (a) it was unequivocally held, that the want of the words before me," in an affidavit taken before a Commissioner, was not an irregularity, but a defect affecting the jurisdiction, and that it could not be waived. Lord Denman, Chief-Justice, says, "I think this is not "an irregularity which can be waived; a defect of juris"diction is shewn, and the objection is one which we "cannot avoid giving effect to;" and Coleridge, J., says, This defect is not a mere irregularity, but affects the juris"diction," and again, "It is consistent with the jurat, that the oath was not administered at all," and, per Wightman, J., "The jurat is clearly not sufficient: consistently with "it, the affidavit may have been sworn before a person having no authority." In Reg. v. Inhabitants of Norbury (b), the Court acted on the authority of Reg.v. Bloxham, and refused to overrule the case; and in Graham v. Ingleby (c); where the same question arose, Pollock, C. B., says, "The affidavit is bad, by reason of the omission of "words before me,' in the jurat. It is the same as if there had been no affidavit," and, per Parke, B., "We are bound by the cases of Reg. v. Inhabitants of Bloxham, and Reg. v. Inhabitants of Norbury, to hold that this having "been made before a Commissioner, is bad, for omitting in the jurat the words before me,' and again, "The present affidavit is equivalent to no affidavit," and, per Alderson, B., The affidavit ought to have followed the usual form, "and not having done so, must be treated as no affidavit." (b) 6.Q. B. 534, n. (a.)

16

(a) 6 Q. B. 528.

(c) 1 Exch. 655.

1862.

LYONS

against ELLISON.

1862.

LYONS

against ELLISON.

If the Court of Exchequer felt themselves bound by the authority of the cases cited, is not this Court equally so? But if they were open to review, we can see no reason to doubt the accuracy of the decisions. By what, then, is the liability of the bail to be governed, if there was no affidavit? The defendant has clearly been illegally held to bail, because the Revised Statutes say that no person shall be "held to special bail, upon any process issuing out of any "Court of Record in the Province, where the cause of action "shall not amount to upwards of £5, and affidavit thereof "made and filed as heretofore accustomed," and after specifying before whom the affidavit may be made, adds,

"the sum or sums specified in such affidavit, shall be en"dorsed on the back of the writ or process, for which sum "or sums so endorsed, the Sheriff or other officer, to whom "such writ or process shall be issued, shall take bail, and "for no more," and the next section declares that, "In all "suits wherein the writ or process shall not be so "indorsed for bail, the defendant shall not be arrested."

It has been suggested that the body of the affidavit is sufficient, that it was made and subscribed by the right person, and that the authority of the Commissioner, whose name is subscribed to the jurat, is not disputed. This may be all true. But does it make the document an affidavit? and if it does not, how does it help the case? It has also been urged that the plaintiff has recovered his judgment, on the cause of action set out in the affidavit: but how can this be, when there is no affidavit? If the paper professing to be an affidavit is an absolute nullity, how can the Court look at it (after determining that it is no affidavit), to ascertain what it contains? and if no affidavit, how can anything it may contain, affect the parties? Must it not be treated either as au affidavit, or so much waste paper? There can be no doubt that if a plaintiff recovers for a cause of action wholly different from the cause of action contained in his affidavit to hold to bail, the bail are entitled to be relieved. Does it not necessarily follow, that if he recovers for a cause of action not in any affidavit, they must be equally free from liability?

1862.

LYONS

against

This case seems to us, simply to amount to this: the plaintiff wrongfully arrested the defendant, without an affidavit, contrary to the express provisions of the statute: the defendant, supposing himself to have been rightfully ELLISON. arrested, gives bail to the Sheriff, and leaves the country: the bail to the Sheriff, ignorant of the plaintiff's wrongful act, supposing (as we think they had good right to do) the arrest legal, put in special bail: judgment is recovered against the principal, and the plaintiff seeks to make that judgment available against the bail, by suing them on the recognizance; when, for the first time, as appears by the affidavit, they discover the want of an affidavit, and apply promptly for relief. We cannot discover in what respect they have been guilty of any laches. So soon as an attempt is made to enforce a liability against them, they naturally search to ascertain whether they are liable, and for what; whether the plaintiff has recovered for a cause of action set out in his affidavit. Instead of finding an affidavit, and a recovery for a matter not set out in it, in which case, they would, unquestionably, be entitled to have an exoneretur entered, they find he has recovered for a certain cause, but no affidavit at all. Had they found in the first case an affidavit, and a recovery for a different cause, the plaintiff's proceedings would have been so far correct, that for the cause for which an affidavit had been made, he would have had the right to indorse the writ, and arrest the defendant; but in the latter case he was wrong from the beginning; having made no affidavit, he had no such right at all. How the bail can be held free from liability in the one case, and liable in the other, we are constrained to confess our entire inability to understand.

We, therefore, think an exoneretur should be entered, and the recognizance set aside.

PARKER, J., said he thought this was not a case where the Court was called on to interfere. The bail had entered into the recognizance, and clearly they had not performed it. He also said that he was not entirely satisfied, that the defect in the jurat rendered the affidavit a nullity.

Rule

1862.

LYONS

against

ELLISON.

Rule for entering on exoneretur on the bail-piece, and setting aside the recognizance roll.

Defendant being indebt

ed to the

A

JARDINE against MCAULEY.

SSUMPSIT on an account stated in November, 1857,

tried before Carter, C. J., at the last Kent circuit. plaintiff for The facts are fully stated in the judgment of the Court.

supplies ad

vanced to build a ship, and requiring further ad

vances, mort

gaged the ship.

000, and covenanted to

Verdict for the plaintiff, £2,737.

A rule nisi for a new trial having been granted,

D. S. Kerr shewed cause in Easter term last, contendto the plaintiff ing that as the debt on the account stated, did not accrue in September, 1857, for £10,- till nearly three months after the covenant was entered into, it was not merged in the covenant; and that as the covenant was a mere statutory security, it might well with interest, stand with the simple contract debt. Yates v. Aston (a). 1858. In No- He also contended that the question of merger, not having been taken at the trial, was not available now.

pay the ammount due,

in January,

vember, 1857, the parties settled their accounts,

when a balance was found to be due to the

plaintiff, on the advances

A. L. Palmer, contra, relied on the simple contract debt being merged in the covenant, which destroyed the plaintiff's right of action; and, therefore, that the objection could be taken on motion for a new trial. He cited Owen

for which the v. Homan (b); James v. Isaacs (c).

mortgage was

given: Held,

that assumpsit

would not

lie for this

balance; but

should have

been on the covenant.

Cur. adv. vult.

CARTER, C. J., now delivered the judgment of the Court.

that the action This was an action of assumpsit on an account stated, to recover a balance of £9,749. 19s. 11d. sterling, admitted to be due by the defendant, on 20th November, 1857. It appeared that the defendant, being largely indebted to the plaintiff for supplies and advances to enable him to build a ship; had, as security, given the plaintiff a mortgage of the ship, on 4th September, 1857, according to the provisions of the Merchant Shipping Act. The exact amount

(a) 4 Q. B. 182. (b) 15 Jur. 339; 3 Mac. & G. 378. (c) 12 C. B. 791.

due

1862.

JARDINE

against

due at the time such mortgage was given, does not appear. The mortgage states the consideration as follows, "I, the "undersigned, Daniel McAuley, in consideration of £10, "000 sterling, this day lent to me by John Jardine and MCAULEY. "John Jardine Jr. &c," (Then follows the covenant for repayment of the £10,000 with interest, on the 1st January, 1858.) "and for better securing to the said Jardines in "manner aforesaid, of the principal sum and interest, I "hereby mortgage to the said Jardines sixty-four sixty "fourth shares, &c."

It is not denied that the account settled between the parties on 20th November, 1857, was the account of advances for the ship, before and after the giving of the mortgage; nor that the balance then ascertained, of £9,749. 198. 11d., was included in the £10,000 secured by that mortgage, for the repayment of which on the 1st January, 1858, the covenant in the mortgage was given. It was an ascertainment of the balance due on the mortgage, which, by the terms of the covenant, was not payable till the 1st January, 1858. If that balance can be considered as an independent contract arising on the account stated, such implied contract would be to pay on request, and therefore, before the time limited by the covenant. If there could be any doubt whether the settled account of November 20th, 1857, was of matters different from that secured by the mortgage, that would be a question for the jury. If it was an adjustment of the same account, the case of Middleditch v. Ellis (a), decides that no action of assumpsit will lie for the balance. The marginal note of that case is thus, "Where a sum of money is secured by a deed, and a balance is struck for the purpose of ascertaining how much remains due thereon, and the obligor "admits the correctness of the account, and promises to pay "it; debt on simple contract on an account stated, will "not lie, but the action must be brought on the specialty." Rolfe, B., delivering the judgment of the Court, says. "The plaintiff was a mortgagee under a mortgage from

66

66

(a) 2 Exch. 623.

11

66

defendant,