PATTESON, J.--I am quite satisfied that the utmost effect which can be given to this act of parliament is, that if an attorney of one Court should choose to practise in another, he would become subject to the jurisdiction of that Court for any thing in which he acted as an attorney in that count, and a question might be raised whether he would not so far render himself an attorney of that Court, as to be amenable to that Court in any matters connected with his character of attorney. I think that is the utmost extent to which the operation of this statute can be carried, though I do not say that it can be carried so far. The act of parliament, by itself, does not render an attorney liable to the process of another Court, so as to destroy his privilege. Therefore, if it could be said that the attorney had done any act by which he had waived his privilege, that is a question of fact, and, therefore, a matter of reply. In the present case, therefore, if the plaintiff means to say that the defendant has done any act by which he has waived his privilege, and rendered himself liable to the jurisdiction of this Court, he should have made it a matter of reply. The plea must, therefore, stand, and the judgment be set aside with costs, as it is a strong measure to sign judgment for want of a plea. Rule absolute, with costs. 1838. PRIOR v. SMITH. û here Hood. 6. Dr. L. 154. DOE d. CLARKE and Others v. STILLWELL and Another. the execution of torney to de mand the per PLATT shewed cause against a rule nisi for an attach- The affidavit of ment obtained by the Attorney-General for the non-per- a power of atformance of an award. He objected to the affidavit, which proved the execution of the power of attorney, authorising the demand of the execution of the award, on the ground that the affidavit was not entitled in the cause. formance of an award, must be entitled in the cause. 1838. DOE d. CLARKE v. STILLWELL. The Attorney-General contended that as this application was a matter dehors the cause, it was unnecessary for the affidavit in question to be entitled in the cause. The arbitrator, by directing a verdict to be entered in a particular way, had disposed of the cause. The proceeding by attachment was independent of the cause therefore. COLERIDGE, J.-Here, the demand of the performance of the award was made under a power of attorney. No affidavit, not entitled in the cause, can be used to prove the execution of that power. I never heard of the distinction now sought to be introduced. Rule refused. ney found to be BALMANNO v. MAY. An affidavit of R. V. RICHARDS shewed cause against a rule nisi debt " for mo- obtained by W. H. Watson, calling on the plaintiff to due upon an ac- shew cause why the defendant should not be discharged out of custody, on the ground of a defect in the affidavit of debt. The affidavit was in this form : count stated," is sufficient, with out alleging that "Alexander Balmanno, of No. 18, Queen street, Cheapside, in the city of London, merchant, trading under the style or firm of Alexander Balmanno & Co., maketh oath and saith, that Stribblehill Norwood May is justly and truly indebted unto this deponent in the sum of eight hundred pounds and upwards, for money found to be due from the said Stribblehill Norwood May to this deponent upon an account stated between them, for money lent and advanced, and paid, laid out, and expended, by this deponent, for the use of the said Stribblehill Norwood May, and at his request, and also for interest upon and for the forbearance to the said Stribblehill Norwood May, by this deponent, at the request of the said Stribblehill Norwood May, of monies due and owing from him, the said Stribblehill Norwood May, to this deponent, and also for work done by this deponent as the factor and agent of and for the said Stribblehill Norwood May, in and about selling and disposing of divers goods of the said Stribblehill Norwood May, and in and about other business of the said Stribblehill Norwood May, and on his retainer, and for commission and reward due, and of right, payable from the said Stribblehill Norwood May to this deponent in respect thereof. And this deponent saith, that no offer or tender hath been made to pay the said sum of eight hundred pounds, or any part thereof, to this deponent, but that the whole thereof still remains justly due to him.” 66 The objection to the affidavit arose upon the words 66 money found to be due from the said Stribblehill Norwood May to this deponent, upon an account stated between them." In support of the objection was the case of Hooper v. Vestris (a), in which it was held that an affidavit of debt, stating the defendant to be indebted to the deponent on an account stated between them" is insufficient. In the same volume, however, was the case of Tyler v. Campbell (b), where it was held by the Court of Common Pleas that in an affidavit of debt it is sufficient to allege the claim to be due " on the balance of an account stated," without the words " and settled." In the case of Debenham v. Chambers (c), a count in assumpsit stated the defendant to be indebted to the plaintiffs and their deceased partner "for money found to be due upon an account then stated between them;" and after laying the promise to the three, assigned as a breach that the defendant had not paid. The Court of Exchequer there held that the count was sufficient on special demurrer. There, it was intimated, both by Baron Parke and Baron Alderson, that no more strictness was required in the affidavit of debt 1838. BALMANNO v. MAY. 1838. BALMANNO บ. MAY. than in a declaration. The affidavit in the present case differed from those in the cases cited. Here, the affidavit alleges the account to have been stated in respect of causes of action, which would justify the defendant's arrest. In the cases cited, however, the account might have been stated with respect to matters which would not justify the arrest of the defendant. Under these circumstances, it was contended that the affidavit of debt was sufficient. 66 W. H. Watson, in support of the rule, submitted that, if the authorities were examined they would be found to support the present application. In the case of Tyler v. Campbell the question was not discussed, but the Court of Common Pleas merely refused to interfere. There was a material distinction between that case and the present. The affidavit there stated a "balance" to be due upon an account stated. Here the words were simply an account stated." The case of Debenham v. Chambers was no authority at all upon this question, as the point upon which that case proceeded was the sufficiency or insufficiency of the form given by the rules of T. T. 1 Will. 4. Any thing that was there said was merely obiter. A great difference existed between a count in a declaration and an affidavit of debt. Any averment in the declaration might be traversed, but no averment in the affidavit of debt could be traversed. The case of Hooper v. Vestris therefore, remained unimpeached, and was a direct authority in support of the present application. Cur. adv. vult. PATTESON, J.-In this case the question was, whether the affidavit to hold to bail was sufficient or not. The discussion on the argument turned on the case of Hooper v. Vestris. In that case, a former one, which had been decided in the Common Pleas, was not brought before the notice of my brother Coleridge. I have a difficulty in see ing the distinction between an affidavit for the "balance" of an account before stated between the parties, and “ an account stated" merely without the word "balance." I think that there is nothing peculiar in that particular word. It must be presumed that an account has been stated after a discussion between the parties. In the case of Visger v. Delegal (a), the Court held that an affidavit of debt "on a balance of an account for money paid, laid out, and expended by the plaintiff to and for the defendant, and at his request, and for money had and received by the defendant for the plaintiff, and for interest on monies due from the defendant to the plaintiff" was not sufficiently certain. The Court there observed, "without the words on balance of account' the affidavit would clearly be bad. Those words, however, only imply that the defendant was originally indebted to the plaintiffs, on the account stated in the affidavit, in a larger rent, which has been reduced by a set-off to 1000l. The case is therefore left in the same uncertainty as if no balance had been mentioned." Since that case Debenham v. Chambers was decided. There, the attention of the Court of Exchequer was called to the form of the declaration in relation to the rules of T. T. 1 Will. 4. The question then arose on special demurrer, and Mr. Baron Parke said, "the case of Hooper v. Vestris arose upon an affidavit to hold to bail, and I question whether more strictness is required in an affidavit than a declaration." The Court of Exchequer having given this intimation, and it being desirable that the same decision should be pronounced in every Court, and it being rather absurd that an affidavit of debt should be in one form and a declaration in another, I think it is better to hold that this affidavit is sufficient. An "account stated" between the parties, would mean that the parties had settled it between them after discussion. Any man, not (a) Ante, Vol. 1, p. 333. 1838. BALMANNO v. MAY. |