1835. SHARP V. JOINSTON. application at chambers, he produced an affidavit wherein the defendant's attorney deposed that he addressed a letter to John Gaynor, Athlone, requiring to know whether there were in Athlone any commissioners for taking affidavits in the courts of England; in answer to which he received the following: "Athlone, September 31st, 1835. In reply to your letter, I beg to inform you that there is not in Athlone any commissioner for taking affidavits in any of the courts in England.-P. S. I am commissioner for all the Irish courts. John Gaynor." The handwriting of Gaynor in the jurat of the affidavit, and also in the above letter, were identified in an affidavit made by the defendant, in which he stated that he obtained a day rule from the warden of the Fleet, on Tuesday, the 2nd November instant, and called at the office of the filacer, and at the chambers of Bosanquet, J., for the purpose of examining the affidavit and letter. Upon the affidavits, Hurlstone submitted that it appeared with sufficient certainty that Gaynor was not a commissioner for taking affidavits to be used in this court in pursuance of the statute (a); that, if he were so, that fact should have appeared in the jurat Howard v. Brown, 1 M. & P. 22; and that, even if the affidavit had been sworn before a judge in Ireland, his signature must have been verified by affidavit. (a) 3 & 4 Will. 4, c. 42, s. 42, which, reciting that "it would be convenient if the power of the superior courts of common law and equity at Westminster to grant commissions for taking affidavits to be used in the said courts respectively should be extended," enacts "that the Lord High Chancellor, lord keeper, or lords commissioners of the Great Seal, the said courts of law, and the several judges of the same, shall have such and the same powers for granting commissions for taking and receiving affidavits in Scotland and Ireland, to be used and read in the said courts respectively, as they now have in all and every the shires and counties within the kingdom of England, and dominion of Wales, and town of Berwick-upon-Tweed, and the Isle of Man, by virtue of the statutes now in force." 1835. SHARP v. JOHNSTON. A defendant bail in this coun. try, notwith standing proceedings had for the same such cause of action in Scotlandsuch proceedings not enuring to deprive the party of liberty there, Another ground urged in support of the motion was, that proceedings had been taken in Scotland for the recovery of the same debt; the defendant being entitled to certain freehold property there on the death of his father. These proceedings consisted of letters of horning, the may be held to effect of which is to entitle the plaintiff or pursuer, at the expiration of six days from the proclamation or "charge of payment," to issue letters of caption for the arrest of the defendant; and also of what is called an "inhibition" recorded against the defendant in the Register Office in Edinburgh, the effect of which was stated to be the same as a judgment, operating as a charge upon his estate. Naylor v. Eagar, 2 Y. & J. 90, was cited. There the court of Exchequer seem to have been of opinion, that, where, under process from the Supreme Court of New South Wales (established by the 4 Geo. 4, c. 96), the goods of a defendant are attached and rendered to the plaintiff in execution, or bail are put in to pay the condemnation money, he cannot be arrested for the same cause of action in this country. TINDAL, C. J.-The defendant was not actually arrested in Scotland. A judgment recovered there only operates as a simple contract debt here (b). The defendant in this case could not plead in abatement that another action was depending in the court of Session for the same cause. The rule may go upon the first ground, but not upon this. W. H. Watson, contra, objected that the defendant's affidavit did not disclose his place of abode; citing Lawson v. Case, 2 Dowl. 40, where an affidavit made by a defendant in a cause was rejected for want of the addition of the deponent, pursuant to the rule of Hilary Term, 2 Will. 4, s. 5. (b) It may form the foundation of an arrest here, under a judge's order. and the debt be ing unsatisfied. 1835, SHARP V. JOHNSTON. Wilde, Serjeant.-It appears from the affidavit that the deponent is a prisoner in the prison of the court, applying to the court for his discharge from custody; and is a lieutenant in the army, having no domicile. The general rule, therefore, the object of which is the more perfect identity of the party making the affidavit, can have no application to a case like the present; for, the plaintiff has identified him. To ask a party his domicile when the court has him in its grasp, savours of absurdity. In Jackson v. Chard, 2 Dowl. 469, it was held to be unnecessary to give the addition of a deponent so circumstanced. TINDAL, C. J.-I am for adhering in all cases as closely as possible to the words and spirit of the rules for the assimilation of the practice of the several courts in Westminster-Hall; therefore, unless it appeared very clearly to me that this is an excepted case, I should hold that the affidavit could not be read. But, when I find that the affidavit shews the deponent to be a prisoner in the custody of the Warden of the Fleet, at large on a day rule, I think he is described with sufficient particularity. The rest of the court concurring W. H. Watson proceeded to shew cause. He produced affidavits alleging that no list of the commissioners appointed under the late act was kept at the chambers of the Chief Justice, other than a list of the parties who had paid certain fees payable upon their appointment.-He submitted that the object of the late provision was to afford additional facilities to suitors, not to render inadmissible affidavits sworn before parties who before the passing of the act were authorized to take them-Kilby v. Stanton, 2 Y. & J. 75; Ellis v. Sinclair, 3 Y. & J. 273.He also submitted that the application was too late but this was answered by the remark that the affidavit was not merely irregular, but an absolute nullity. TINDAL, C. J.-This matter may be disposed of on one short ground: either the party before whom the affidavit of debt was sworn is a commissioner duly appointed to take affidavits to be used in this court, or he is not. It has not been attempted to be shewn that he is such commissioner: but I think there is every reason for believing that he is not so, but is only a commissioner for the Irish courts. His signature and authority to administer an oath therefore ought to have been verified by affidavit. PARK, J.-The 3 & 4 Will. 4, c. 42, s. 42, certainly operates in extension of the power of the courts to grant commissions for taking affidavits to be used therein. But, even if the affidavit had been sworn before a judge in Ireland, his signature must be verified by affidavit (c); there ought therefore to have been at least an affidavit verifying the signature of Gaynor. The rest of the court concurring (c) "If sworn before a judge in Ireland or Scotland, the judge's signature to the jurat must be verified by an affidavit to be made in this country; but, if sworn before any other person (other perhaps than a commissioner impowered under the recent act of 3 & 4 Will. 4, c. 42, s. 42), not only his signature to the jurat, but also his authority to administer oaths and take affidavits, must be verified in like Rule absolute (d).. manner. French v. Bellew, 1 M. (d) Tindal, C. J., observed that in 1835. SHARP v. JOHNSTON, 1835. Thursday, JOHNSTON V. KENNEDY. Where a defen- HURLSTONE, on a former day, obtained a rule nisi dant is held to bail or detained by virtue of a judge's order, he is not bound to apply either to set aside an order made by Patteson, J., on the 22nd October last, for holding the defendant to bail, and that the defendant might be discharged out of custody as to this action, on entering a common appearance, on the judge at cham- ground that the affidavit of debt was defective. to the same or to another bers, to rescind the order or to discharge him from custody, on the ground of defects in the affidavit of debt: the application is properly de layed till the court is sitting. Busby shewed cause.-It appeared, that, on the 30th October, the day on which the time for putting in bail expired, a summons was taken out, returnable the next day, for the discharge of the defendant on the ground that the date of the order was not indorsed on the back of the writ of detainer, as required by the 2 Will. 4, c. 39, s. 8, Sched. Nos. 4 and 5. Williams, J., before whom the summons came on for hearing, declined to interfere, on the ground that the application was a day too late-Tyler v. Green, 3 Dowl. 439. The objections to the affidavit not having been mentioned when the parties were before Williams, J., at chambers, it was contended that it was now too late to take advantage of them. The affidavit was admitted to be irregular. Hurlstone, in support of his rule, submitted, that, to have taken these objections before Williams, J., would have been virtually asking him to rescind the order of Patteson, J., which would have been equally indecorous and contrary to the usual course of practice at chambers, TINDAL, C. J.-I think the defendant has pursued the proper course. It would have been appealing to one judge against the decision of another, to have asked Mr. Justice Williams to entertain objections to an affidavit upon which Mr. Justice Patteson had granted an order. |