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had any power or authority to issue the said writ. Verification.

Demurrer. The said defendant says that the said surrejoinder is not sufficient in law, and in pursuance of the statute in such case made and provided, he states and shows to the court here the following, stating for causes, that the said surrejoinder attempts to put in issue a matter of law, namely, by whom the writ in the said surrejoinder mentioned should by law be issued, and concluding with a verification; so that if the said defendant had denied the matter therein mentioned, and issue had been taken thereon, the said matter of law must have been tried by a jury. And also that the said surrejoinder is argumentative and bad in this, that it states facts and matters from which the said plaintiff wishes the court to infer some irregularity in the swearing or affirming to the said affidavit and affirmation, and also that the said surrejoinder is bad in this, that it is a departure from the plaintiff's replication. Joinder in demurrer.

Archbold for defendant supported the demurrer. The question attempted to be raised on these pleadings is, Whether an affidavit to hold to bail, sworn before the deputy signer of the bills of Middlesex, before the act 2 Will. 4. c. 39. for uniformity of process came into force, is valid so as to support a capias issued since that act. But that question will not arise, if, as I contend, the surrejoinder is bad as a departure from the replication. Now the replication alleges that there was no affidavit; while the surrejoinder admits there was, but insists that it was irregular. That is a departure, for it does not "maintain or fortify" the matter in the plaintiff's previous pleading (a). In Comyns's Digest, tit. Pleader (F. 7.), the

(a) See Co. Lit. 304 a.

following instance of departure is given. "Debt on bond to perform an award. If the defendant pleads no such award, and the plaintiff shows such an award and assigns a breach, and the defendant rejoins that the award is bad, this is a departure, Raym. 94. 1 Sid. 180. 2 Roll. 692, l. 40; or that it was not made of all controversies, 1 Lev. 127 (a). So, if a bond be to perform covenants, and the defendant pleads performance, and a breach being assigned for non-payment of rent, rejoins, that he was expelled, Ray. 22. 1 Sid. 77. or that he has paid so much rent and so much for taxes, which makes up the whole demand for rent, 1 Salk. 228." Praed v. Duchess of Cumberland (b) is directly in point. That case was debt on an annuity bond, to which the defendant pleaded that there was no such memorial as the statute requires. The plaintiff replied that there was a memorial containing the names of the parties &c., and the consideration for which the annuity was granted. The defendant rejoined that the consideration was untruly alleged by the memorial to have been paid to both obligors, for that one of them did not receive any part of it. This rejoinder was held bad, as being a departure from the plea. Ashurst J. said, "The rejoinder is clearly a departure from the plea in bar; a memorial was inrolled which on the face of it was a good one, and if the defendant wished to impeach it she should have pleaded it, and shown in what particular it was defective, and thus have compelled the plaintiff to take issue upon that fact. But having in the plea in bar alleged that there was no memorial, she ought not afterwards to be permitted to

(a) See also Harding v. Holmes, 1 Wils. 122.

(b) 4 T. R. 585. Affirmed in error in the Exchequer Chamber, 2 Hen. Bla. 280,"on the ground that the rejoinder introduced a fact which went to vitiate the deed. See per Bayley J. in Dudlow v. Watchorn, 16 East, 41; Chandless arguendo, post.

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admit in her rejoinder that there was one, and then deny the validity of it." When that judgment was affirmed on error, Eyre C. J. stated the rejoinder to be clearly a departure from the plea. [Parke B. The objection there made was really and substantially to the bond, insisted on in the rejoinder, viz. that that bond was void, because it did not state the consideration truly. The rejoinder was doubtless quite beside the plea. Eyre C. J. adds, "the plea in effect states that there was no memorial; the replication alleges a memorial containing the requisites which the law requires; and then the rejoinder introduces a fact, which goes to vitiate the deed, but not the memorial." That case then does not apply.] Here, the surrejoinder does not show the affidavit bad on the face of it, but relies on its having been sworn before an unauthorized persona ground which should have been raised on the replication. Fisher v. Pimbley (a) will be cited for the plaintiff. It was debt on a bond conditioned for performing an award. Plea, no award. Replication, setting out an award. Rejoinder, stating the whole award, in which were recited the bonds of submission, whereby it appeared that the award was not warranted by them, and it was held on demurrer that this was not a departure from or inconsistent with the plea; the reason being, that the award being bad on the face of it, but not being set out truly and entirely by the plaintiff in his replication, the defendant was at liberty to set it out as it was in fact in his rejoinder, and then demur to it when so set out, as being a nullity not made in the cause, thus maintaining his former allegation in the plea, that there was no award. The decision in Dudley v. Watchorn and Another (b), is also distinguishable. That was scire facias against bail on their

(a) 11 East, 188.

(ö) 16 East, 39. See 7 B. & Cr. 808.

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 10l. 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.

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admit in her rejoinder that there was one, and deny the validity of it." When that judgmen affirmed on error, Eyre C. J. stated the rejoind be clearly a departure from the plea. [Parke B. objection there made was really and substantia the bond, insisted on in the rejoinder, viz. tha bond was void, because it did not state the cons tion truly. The rejoinder was doubtless quite the plea. Eyre C. J. adds, "the plea in effect that there was no memorial; the replication alle memorial containing the requisites which the la quires; and then the rejoinder introduces a fact, goes to vitiate the deed, but not the memorial." case then does not apply.] Here, the surrejoinder not show the affidavit bad on the face of it, but rel its having been sworn before an unauthorized pers a ground which should have been raised on the re tion. Fisher v. Pimbley (a) will be cited for the tiff. It was debt on a bond conditioned for perfor an award. Plea, no award. Replication, setting an award. Rejoinder, stating the whole awar which were recited the bonds of submission, wh it appeared that the award was not warranted by and it was held on demurrer that this was not a d ture from or inconsistent with the plea; the r being, that the award being bad on the face of it not being set out truly and entirely by the plaint his replication, the defendant was at liberty to out as it was in fact in his rejoinder, and then d to it when so set out, as being a nullity not ma the cause, thus maintaining his former allegatio the plea, that there was no award. The decisi Dudley v. Watchorn and Another (b), is also d guishable. That was scire facias against bail on

(a) 11 East, 188.

(6) 16 East, 39. See 7 B. & Cr. 80