recognizance. Plea, that before the issuing the first scire facias, no writ of ca. sa. by the plaintiff against the principal debtor was duly sued out &c. The replication stated a ca. sa. against S. issued into the county in which the venue in the action against him was laid, and a return of non est inventus; and a rejoinder, that the venue in the action against S. the principal was in London, was held no departure, on the ground that the plea did not allege that no ca. sa, was issued, but that none was duly issued, which was equivalent in effect to saying that no ca. sa. was issued in the manner required by the practice of the court to charge the bail. Had "duly" been left out of the plea in Dudley v. Watchorn, or if it had been inserted in this replication, the case would have resembled this. But assuming that there was no departure, the question first above stated arises, depending on the construction of 12 G. 1. c. 29. s. 2. which enacts, that in all cases where the plaintiff's cause of action shall amount to the sum of 101. or 40s. or upwards, "affidavit shall be made and filed of such cause of action, which affidavit may be made before any judge or commissioner of the court out of which such process shall issue, authorized to take affidavits in such courts, or else before the officer who shall issue such process or his deputy, which oath such officer or his deputy is hereby empowered to administer." That language is strongly contrasted to that of the first section, and is directory only as to the persons before whom the affidavit is to be made; so that if sworn before a proper officer in a form on which perjury might be assigned, it is sufficient. The question here is, whether the affidavit is void? and not as in Beck v. Young (a) whether it was so far irregular as to entitle a defendant arrested (a) 2 Dowl. P. C. 462. Bail Court of K. B. The defendant in that action being discharged, brought the present action. 1834. YOUNG บ. BECK. 1834. YOUNG v. BECK. under process founded on it, to be discharged from that custody? a point which was there held in the affirmative by Parke J. For all that is necessary to be here established, in order to show this to be a departure, is, that the affidavit is not a nullity. That case, therefore, need not be disputed. Perjury could be assigned on this affidavit as on one sworn before the person who was the proper officer at the time. [Alderson B. That is the question, and is not to be assumed. Parke B. If perjury could be so assigned my decision was wrong.] If the second section is peremptory and not directory only, no one could be held to bail on a foreign affidavit, because it had not been sworn before a judge, &c. &c. [Parke B. The act did not mean to touch that case, where arrest takes place under a judge's order (a), but only to set bounds to the plaintiff's right of arrest.] It was usual in practice to issue writs on affidavits not sworn before the officer who issued the writ; e. g. to issue a latitat on an affidavit sworn before the signer of the bills of Middlesex (b). [Alderson B. That was on the ground that it was a continuation of the same process. Thus, where a capias was issued into Sussex on an affidavit sworn before and filed with an officer who was deputy filacer for Sussex, and also for Cornwall, and was returned non est inventus, it was held, since 2 Will. 4. c. 39, that an alias capias might be issued by continuance into the latter county on the same affidavit, Coppin v. Potter (c).] It had been previously decided in Evans v. Bidgood (d), that where the filacer for Cambridgeshire was the proper officer to issue writs (a) Tidd, 9 ed. 166. (b) Baker v. Allen, 7 B. & Cr. 526. (c) 10 Bing. 441. (d) 4 Bing. 63. See per Best C. J. id. 65. into Devonshire, an affidavit sworn before him, on which a capias had issued into Cambridgeshire, without a previous original, was held sufficient to support a testatum capias into Devonshire. [Alderson B. In Richards v. Stuart (a) it was held, that a fresh affidavit was not necessary to the issuing a new writ after discontinuing the action, where the second proceeding was with the same filacer who issued the first. But the question here is, whether it is sufficient that the affidavit was sworn before a person who at the time had authority to issue a writ, but not the writ which afterwards issued, and is now sub judice; no such form of writ being in existence at the time of swearing the affidavit.] That case is in the defendant's favour, for by discontinuance the suit was at an end, and the defendant is not driven to argue this to be a continuance of the first writ. [Alderson B. The difference between the cases is, that, in that cited, the plaintiff pledged his oath by an instrument on which perjury could have been assigned; whereas it is a question whether that could have been done here. In Richards v. Stuart, Tindal C. J. after stating section 2 of 12 G. 1. c. 29. says, "all that the fair import of these words demands has been done in the present instance. An affidavit of the cause of action has been made and filed; of the cause for which the defendant is now arrested; for there is no pretence for saying that the first arrest was for a different cause of action. But it has been urged that the deponent could not be indicted for perjury. I am unable to perceive why he should not, if the affidavit be untrue; for if he uses it for the second arrest, it is the affidavit of the cause of action in that proceeding." (a) 10 Bing. 322; 3 Moore & S. 778, S. C. See acc. Dorville v. Whoomwell, 10 B. M. 320; S. C. 3 Bing. 39; and Boyd v. Durand, 2 Taunt. 161, as commented on by Park J. in 10 B. M. 40. 1834. YOUNG บ. BECK. 1834. YOUNG บ. BECK. Now, you say that at the time of swearing the affidavit the officer had power to issue process, and that at the time it actually issued he remained the officer before whom the affidavit was sworn.] If the new writ of capias is not, when necessary, taken as a good continuation of a bill of Middlesex, so as to authorize taking the body, injustice will ensue. For if a bill of Middlesex were issued before the uniformity of process act 2 Will. 4. c. 39. in order to save the statute of limitations, but not served, the issuing a capias will be the only present mode of preventing a plea of the statute, all other process being abolished by that act, and the office of signer of the bills of Middlesex being virtually abolished by 3 & 4 Will. 4. c. 67. s. 1., which enacts, that all writs of summons, distringas, capias and detainer, issued into Middlesex from K. B., shall be signed, sealed, and issued, and the fees thereon taken and accounted for by the same persons, and in like manner, as all other writs of summons &c. issued from that court under 2 Will. 4. c. 39. [Parke B. What in that act prohibits the officer from signing and issuing writs in continuation of old process in an action commenced before it came into operation? (a)] That act, though it alters the functions of the officers as to process, relates only to writs issued after its passing, viz. 28 August 1833, in compliance with 2 Will. 4. c. 39. and does not prove the point for which it is cited. The difficulty is, that by the act 12 G. 1. c. 29. s. 2. no officer has jurisdiction to take the affidavit, unless he actually issues the writ. Here, the affidavit was not made before the officer who afterwards actually issued the writ. That jurisdiction is suspended and cannot be known till he actually issues the writ. The case would be otherwise in the instance of an affidavit taken before a judge or (a) See Finney v. Montague, 2 Nev. & Mann. 804. commissioner, who have absolute jurisdiction not depending on the chance of their filling some other character. The framer of 12 G. 1. no doubt contemplated that the making the affidavit and issuing the writ would be cotemporaneous acts. Chandless in support of the surrejoinder. According to well-known rules, if a party's latter pleading contains matter which, though new, maintains and fortifies his former pleading, without contradicting or deserting the ground there taken, it is no departure (a). Tried by that test, this surrejoinder maintains the replication, for it shows that there was no legal affidavit; and if there was not, then there was no affidavit at all, which is the ground taken in the replication. Now, it is not contended that the affidavit is otherwise than valid, but Praed v. Duchess of Cumberland was relied on to show a departure. That case was affirmed in error on a different ground from that on which it proceeded in the King's Bench, and when cited in Dudley v. Watchorn was thus noticed by Bayley J. "The ground on which that judgment was affirmed in error was, that the rejoinder introduced a fact which went to vitiate the deed granting the annuity, and not to show that there was no memorial of the bond." The decision of Praed v. Cumberland in the King's Bench, though arising on an annuity bond, seems to have proceeded very much on the case of an award, cited from T. Ray. 94. Mr. Justice Buller saying, that "in the case of an award, if there be an award in fact, the party cannot, on the trial of an issue of no award, go into objections to the award in point of law.] But that is contradicted by Fisher v. Pimbley (b), where the question arose on an award, and Lord Ellenborough said, "The (a) See Co. Lit. 304 a., 2 Saund. R. 84 n. (1). (b) 11 East, 192. 1834. YOUNG v. BECK, |