tions might be available on demurrer, yet as the parties did not take the objection in that stage of the cause, it was then too late to take them, being made after a verdict; and certainly that was a very reasonable answer to the objections. The answer to the objection in this case is, that although the plaintiff has not stated upon the record all that he might have stated, yet he has stated the names of the parties with sufficient certainty, so as not to put the defendant to any inconvenience on the trial. It has been suggested, that an alien enemy might be one of the plaintiffs upon the record, under this general description of the firm. If the defendant thought he was deceived by the uncertainty of the declaration in this respect, he should have demurred to it on that ground; but as he has not done that, he must be taken to have waived his objection to the plaintiff's legal ground of action. The declaration, however, seems to me to be sufficiently supported. On the third and last ground, I concur with my Lord and my Brother Bayley in the opinion they have expressed, and consequently there is no sufficient reason suggested for disturbing this verdict. BEST J. I have always understood it to be an invariable rule, that where all the averments necessary to a declaration are not sufficiently stated or are omitted, they are the subject-matter of demurrer, and that the time for taking advantage of such objections is before trial. Upon this principle I think the two objections that have been taken in arrest of judgment, come too late, even supposing they were available on demurrer. As to the third objection, if that could prevail, it seems to me that there is not one of the numerous cases in which immense sums have been engaged in Baltic risks, and have been actually paid, which must not have been improperly decided. I recollect from my own experience, when I was at the Bar, that in every one of 1819. WRIGHT against WELBIE. the cases which were decided during the last war upon Baltic risks, the policies contained the very words in this case," any port or ports in the Baltic," though many of those ports were in a state of hostility towards this country. If this objection could have prevailed, it is quite impossible that any voyage under a policy " to any port or ports in the Baltic" could ever become legal; and consequently, if a ship sailed to some one of these ports which happened to be in a state of hostility, the insurance on the ship could not be protected. It cannot be doubted, that after the policy is effected the voyage may be rendered legal by the licence of the king in council, and in such case there would be no objection to the policy. We know that during the last war these policies were effected before the voyage commenced; and even supposing the party were to go to a hostile port, there is nothing to prevent him from applying to government to obtain a licence. Certainly where a party bound himself under a policy to go to a hostile port without licence, he could not alter his course under the policy so effected. But the licence would render the voyage legal before its commencement. think that being the case, a policy in these general terms cannot be evaded upon the objection taken; and that it signifies nothing that there were certain ports in the Baltic in a state of hostility, it being reasonably to be supposed that the party had it in his contemplation to obtain a licence for the voyage, or to abandon it. It happens in this case, that the voyage was legal, inasmuch as the party originally contemplated going to one of the ports of the Baltic which was not in a state of hostility; for although he undoubtedly intended to go to Memel, yet still that part of the voyage would not be a violation of the policy. I am therefore clearly of opinion that there is no pretence in this case for granting even a rule to shew cause. I Rule refused. 1819. ROSCOE v. DELANO. PRINCEP moved to change the venue in this case from London to Lancaster, on an affidavit which stated that the cause of action arose in the county of Lancaster, but it omitted to state what was the cause of action. CURIÆ. The affidavit must state what the action is for; or you must produce the declaration, and shew that it is a transitory action, and not on a bill of exchange, or some other demand in actions for which the Court will not change the venue. (a) In the King's Bench the rule for changing the venue is absolute in the first instance; and in that Court it is required, that all rules for changing the venue should be drawn 66 up upon reading the declaration, &c." a practice that was introduced in consequence of inconveniences having arisen from the venue being improperly changed without adverting to the cause of action. R. Trin. 49 Geo. 3. K. B. 11 East. 273. In the Common Pleas, the rule for changing the venue is in the first instance a rule nisi, and in that Court also it is the practice to draw up the rule " on inspecting the plaintiff's declaration, &c." Tidd's Forms, 4th ed. 257. See Neale v. Neville, Savory v. Spooner, 6 Taunt. 567. Powel v. Rich, 7 Taunt. 178. 2 Marsh. Rep. 494. where the practice relative to changing the venue is much discussed. 1819. Thursday, It is not neces KING V. LORD TURNER. sary in an affida- BALLANTINE moved for a rule to shew cause why the defendant in this case should not be discharged vit to hold to bail, that the creditor should the debt. It is sufficient for another person to swear that the defendant is on filing common bail, and why the bail-bond should himself swear to not be delivered up to be cancelled, and why all proceedings in the mean time should not be stayed on the ground of irregularity. The affidavit to hold to bail was made by a person named Lettice, without describing himself as agent, servant, or clerk, or in any way connecting himself with King the plaintiff, and the dethough the deponent does not describe himself in the affidavit to be the agent or servant of the plaintiff. (a) justly and truly indebted to the plaintiff, in order to hold the for mer to bail, even (a) See Brown v. Davis, post 8th Feb. Bland v. Drake, post 12th Feb. 1 Wils. 339. 1 Bos. & Pul. 1. Tidd, 6th ed. 181. So an affidavit of truth of a plea in abatement may be made by a third person. Tidd, 6th ed. 677. Pr. Reg. 6. Barnes 344. In Anderson v. Morgan, 4 Taunt. Rep. 251. and Pieters v. Luyties, 1 Bos. & Pul. 1. it was held in the Court of Common Pleas, that the affidavit of debt might be made by a third person, and that the affidavit need not state that the deponent was connected with the plaintiff as agent, or in any other manner. In those cases however it appeared that the plaintiff was resident in a foreign country. In Knight v. Keyte, 1 East's Reports, 415. it was held that an affidavit to hold to bail, made by a person describing himself as the agent of the plaintiff, and stating that the defendant was indebted to the plaintiff, and that no tender had been made in Bank notes either to the principal or to the deponent, was held sufficient, although the plaintiff was not stated to reside abroad. The Court said, that the business might have passed entirely through the agent's hands, and it was impossible to say what means the agent might have had of satisfying himself of the facts sworn to. It had been determined in the Court of Common Pleas that the assignee of a bond may make an affidavit of debt without joining the assignor; and that if any tender of Bank notes be absolutely negatived, the affidavit will be good. Byland v. King, 7 Taunt. 275. 1 Moore 24. S. C. So in an action by the assignees of a bankrupt, an affidavit by the clerk to the plaintiff's attornies, absolutely denying a tender in Bank notes, was holden good, though it did not state that no tender had been made either to the bankrupt or his assignees, because the affidavit, being general, comprehended within it every particular, and therefore at most it was only a defect in point of form and cured by the statute 43 Geo. 3. c. 18. s. 2. unless the defendant produced an affidavit that the money had been actually offered to be paid in Bank of England notes. Armstrong v. Stratton, 7 Taunt. Rep. 405. ponent swore that the defendant was "justly and truly indebted to John King in a certain sum of money." This affidavit, he submitted, was defective on two grounds: 1st, because the deponent should have some way or other connected himself with the creditor; and 2dly, for swearing that the defendant was indebted to the plaintiff, the creditor himself being resident in town. He referred to Elliott v. Duggan. (a) He admitted that deponent negatived the tender of any notes of the Governor and Company of the Bank of England. ABBOTT C. J. I know of no case in which it has been held that the creditor himself must swear to the debt. The case cited has reference entirely to the negation of any tender of any notes of the Bank of England, and therefore that case does not bear upon this point. BAYLEY J. I think this affidavit will do. There are many cases where the plaintiff himself cannot swear to the debt, for a variety of reasons. It may be true that it does not appear in what relation this person named Lettice stands to the plaintiff, nor need it, for the deponent would be liable to an indictment for perjury upon this affidavit. There was a series of cases. in which it was held, that unless you negative the tender in Bank of England notes, the defendant was liable to be discharged; and it was also held, that that negation of the tender must be by the plaintiff only. That seems to be otherwise now. There is another Act of Parliament besides the 37 Geo. 3. c. 45. (b) which directs, that if the affidavit to hold bail does not néga 1819. KING against TURNER. (a) 2 East. Rep. 24. (b) 43 Geo. 3. c. 18. sec. 2. which cures informalities in this part of the affidavit, but not a total omission of the clause negativing a tender. Wood Jenkins, 2 Smith Rep. 156. Tidd, 6th ed. 193. |