1832. JOHNSON บ. dant had a good defence upon the merits. He cited Lang Exch. of Pleas, v. Comber (a), and referred to the dictum of Mr. Justice Bayley in Baskett v. Barnard (b), that "an affidavit to support a plea in abatement may be made before decla- POPPLEwell. ration." [Bayley, J.-In Bower v. Kemp (c), this Court decided that such an affidavit as the present was bad, because it referred to a declaration not then in existence. How can a man know by foreknowledge what the declaration will contain. The dictum in the case in Maule & Selwyn was the opinion of a single Judge.] The four Judges agreed in the same opinion in Lang v. Comber. At all events, such a plea ought not to be treated as a nullity, and the plaintiff had no right to sign judgment. BAYLEY, B.-I think that on principle and common sense the affidavit cannot be supported; but, as there are conflicting authorities, you may take a rule to shew cause. Rule nisi granted. Blackburne shewed cause.-Bower v. Kemp decides that a plea in abatement is not supported by an affidavit referring to the declaration, and sworn before such declaration is delivered; and it also shews that the plaintiff may in such case treat the plea as a nullity, and sign judgment. As to the other part of the application, the affidavit of merits is insufficient, as it is not sworn by the defendant, or even his attorney or attorney's managing clerk (d), but merely by the London agent, who only states his information and belief, without stating from whom he had re (a) 4 East, 348. VOL. II. PP (d) Neesom v. Whytock, 3 Taunt. 403. 1832. Exch. of Pleas, ceived such information. In Bower v. Kemp, the Court held that an affidavit of a meritorious defence was insufficient. JOHNSON บ. POPPLEWELL. Starkie, in support of his rule.-In principle the present case is not distinguishable from Lang v. Comber. In that case the defendant swore the affidavit at Liverpool on the day the declaration was delivered in town. It was therefore as impossible as in this case that he could know the contents of the declaration. The Court said, that, as the defendant might have had very good reasons for believing that what he swore must accord with the truth, and, as the affidavit did, in point of fact, accord with the truth, they would not consider the plea as a nullity, but would leave the plaintiff to his indictment for perjury. [Bayley, B.— How could he be indicted for perjury in swearing that the promises contained in the bill, if any such were made, were joint, when no bill was in existence.] Perhaps, an indictment might be framed alleging, that, in point of fact, the promises were made solely. [Bayley, B.-I think not. Perhaps the Court would give time for filing the affidavit of the truth, on the special ground that the party lived at a great distance, and that the declaration was filed so as to prevent the putting in a plea of non-joinder, which may be and often is an honest plea. The objection to this affidavit is, the incongruity of swearing as to promises in the bill, when at that time no promise was mentioned in any bill. In the present case, you do not shew by affidavit that you never made but one contract with the plaintiff, and that, if you did make any contract, it was joint.] The affidavit is the same in effect as the one suggested, and is the same as the one used in Lang v. Comber. Here, the declaration was purposely served after post time on the Saturday night. If this objection is to prevail, there must be one law on this subject for London and another for the 1832. country. The statute of Anne (a) only requires the defen- Exch. of Pleas, dant to prove the truth by affidavit, or to shew some probable matter to the Court to induce them to believe that the plea JOHNSON v. is true. In this case, the plaintiff does not venture to POPPLEWELL. swear that the promise was sole, and therefore there is quite probable matter enough within the statute to induce the Court to believe that the plea is true. BAYLEY, B.-There is an affidavit of merits by the agent in town; and, as he takes upon himself to swear that he believes there is a good defence upon the merits, I think that the defendant should be let in to try the cause upon payment of costs, especially under circumstances of contrivance as to the delivering the declaration. Upon the other question, I am of opinion that the judgment was regularly signed. To verify such a plea, you must have an affidavit; and, if there is not a proper affidavit, the plea may be treated as a nullity. Now the affidavit here is similar to the one in Bower v. Kemp, as it refers to a plea in abatement, which alleges that the promises in the declaration were entered into jointly with another person, and it was made on the 17th April, a time when it was impossible to connect the affidavit with any bill; it would be impossi ble, therefore, to indict a defendant on an affidavit of this nature, if false. Lang v. Comber has been considered to be at variance with Bower v. Kemp. In that case, however, a bill was in existence on the day when the affidavit was sworn, and the Court was thereby relieved, in some measure, of the incongruity and absurdity of an affidavit as to the contents of the non-existing declaration. It is possible that the dictum in Baskett v. Barnard may be correct, and that an affidavit sworn before declaration may be sufficient if it do not refer to the declaration, but merely state that the defendant had never promised or con (a) 4 & 5 Anne, c. 16, s. 11. 1832. Exch. of Pleas, tracted except jointly; but if he refer to a particular bill, he ties himself down to that bill; and, as he cannot tell by foreknowledge what such bill will contain, an affidavit so POPPLEWELL. referring is bad, according to principle and common sense. JOHNSON v. VAUGHAN, B.-This case is distinguishable from Lang v. Comber, as in this case no bill existed when the affidavit was sworn. In Lang v. Comber, the declaration to which the plea referred was in existence when the affidavit was sworn. BOLLAND, B.-I think that Lang v. Comber must have proceeded on the distinction alluded to by my learned Brothers. I cannot see how, if such an affidavit were false, the deponent could be indicted for perjury. Such an affidavit might be made before the action was brought, and might be quite extrajudicial. Rule absolute, on payment of costs. GLEADOW and Others, Executors of GLEADOW, v. ATKIN and Another, Executors of ATKIN. DEBT on bond, entered into by Atkin, the testator, and one Boyle, conditioned for the payment of 250l. to Gleadow, the testator. money mentioned in the condition was part of the personal estate of A. B., deceased, by whom it had been bequeathed to the testator of the plaintiff and the testator of the defendant, and the survivor of them, and the executors and administrators of such survivor, upon trust to put and place the same out at interest, upon such real or other sufficient security as they might approve of, and to pay the interest, &c., &c.; that the testator of the plaintiff died, leaving the testator of the defendant surviving; whereupon the said personal estate of A. B. vested in the defendant's testator, to be by him and his executors and administrators applied according to the trusts of the will of A. B.:-Held, on general demurrer, that the plea was bad. 1832. GLEADOW v. ATKIN. The defendants pleaded, amongst others, the following Exch. of Pleas, plea-Actio non, &c.; because they say, that, heretofore, to wit, on the 14th day of August, 1800, at the county of York aforesaid, one Cuthbert Thew made his last will and testament in writing, and thereby gave and bequeathed unto the said Robert Gleadow, since deceased, and the said John Atkin, and the survivor of them, and the executors and administrators of such survivor, all and singular his stock and implements in trade, the lease of his house, his ready money, bills, bonds, notes, mortgages, and other securities for money, debts due and owing to him, and all other his personal estate and effects whatsoever and wheresoever (except his household furniture to his wife for life, and subject to the payment to her of the sum of 1607.); upon trust (amongst other things) that they the said Robert Gleadow (since deceased) and John Atkin (since deceased), or the survivor of them, or the executors or administrators of such survivor, should forthwith, or as soon as conveniently might be after his decease, sell and dispose of such part of his personalty as was saleable, and collect and receive all his debts owing to him, and the money arising from such sale, with the debts to be received, the amount of monies owing to him on securities, with the ready money he might die possessed of, he the said Cuthbert Thew willed and directed that his said trustees, or the survivor of them, or the executors or administrators of such survivor, should put and place out at interest, on real or other sufficient securities, as they should approve of, and pay the interest thereof, as the same should accrue and be received by them, unto his said wife or her assigns, during her natural life. And the said Cuthbert Thew by his said will appointed the said Robert Gleadow (since deceased), and the said John Atkin (since deceased), executors thereof. And the said defendants, executors as aforesaid, further say, that the said Cuthbert Thew, afterwards, to wit, on the 1st day of Oc |