1839.

THE QUEEN

v.

M'KAY.

Court is called upon to make, that parties may come in, in one, two, or three years, and quash presentments on formal objections.

Mr. Fitzgibbon replied.-The provisions in the act of parliament are not directory. Where an act directs two parties to do a certain thing, and also directs a public officer who has to act between them, if they do all they have to do, his not doing what he is directed to do will not vitiate what was to be done. This was the principle of the cases cited; and the judgment of the Lord Chief Justice, in the case of Quin v. Aldwell (a), bears out that view, and also the case of Rachford v. Meadows (b). In the present case, the statute directs that certain things should be done before any presentment should be made; and the affidavit is part of the record.-[BURTON, J. Does the act direct that the affidavit should appear on the face of the presentment ?]-No, but it is preserved as a record in the Crown Office; otherwise, as no person but the grand jury could be present when this act was passed, they might burn it, if they pleased, in the grand jury room. The statute prescribes a particular form of affidavit, and an estimate, and that the estimate should particularise certain things; and if these documents be not in accordance with such directions in the statute, no presentment can be made upon it. If these items were specified, and they appeared extravagant, the presentment would be quashed; and this cannot be done if these facts may be omitted in the affidavit. If, for instance, also, the "intended breadth" of the road is not stated, how can a party know what damage the road will cause? Yet, not one word of this in the affidavit; nothing to shew the breadth of the road, or the number of perches in it: neither is there one word of the townland or barony, or the sum to be required to lay out fences, &c. Such a presentment would repeal the act of parliament.-[Mr. Hatchell. There is a map annexed, to which the affidavit refers, and which gives these particulars.]--It is said we are late with our objection, and that it is a technical but I contend it is one that goes to the very substance of the presentment; and the statute fixes no limitation within which such objections are to be made. In a civil bill case, the Judges turn parties round, if the addition or residence of a party be omitted, because it is a departure from the form prescribed. As to the second point, money is presented now, to be raised hereafter. The work is thus begun, and if the Board of Works should not afterwards think proper to advance this sum, the work falls to the ground.- [CRAMPTON, J. There is an enactment, that if this money be not advanced in a certain time, the presentment falls to the ground; and every presentment which is made in contemplation of an advance from the Board of Works must be conditional,

one;

(a) Batty, 389.

(b) 3 Esp. N. P. C. 69.

no matter what words are used.]-The condition, however, here is, that Mr. Latouche should advance a sum of £608. The estimate annexed to the affidavit is £1208, and the grand jury present £600, on condition of getting £608 from Latouche. What security have the public that Mr. Latouche will ever pay that sum ?-[CRAMPTON, J. You were aware of this objection when the presentment was passed.]-A party knows nothing of the presentments but what he hears read out when they come to be fiated; and there is nothing to limit the applicant to make his objections at that moment.

At the desire of the Court, the case stood over, to allow counsel in support of the presentment to give additional information to the Court, as to the advance of £608 by Mr. Latouche.

Saturday, November 16th.

Mr. Hatchell this day handed in the affidavit of Mr. Latouche, which stated that he entered into the following written engagement with the Commissioners of Public Works :-"I hereby undertake to be responsi"ble to you for the sum of £608. Os. 4d., or whatever additional sum "may be required, in aid of the county presentment of £600, to com"plete the new line of road between," &c.

Mr. Fitzgibbon objected that this was a mere nudum pactum, not binding upon Mr. Latouche, and upon which no party could sue; but the Court considered it sufficient, and gave judgment against the motion.

CRAMPTON, J. said he was much struck with the objections, when they were made on the trial of the traverse; but the party having four days for considering these objections at the time of fiating the presentment, and having passed that time, I do not think he has a right to take advantage of technical objections after that time. The case is therefore narrowed to one objection, namely, that this is a conditional presentment; and I know no authority for saying, that the condition in this case makes the presentment void. The condition is one most beneficial to the public; and is it to be said, that a grand jury is at liberty to treat in this way with parties, if they suppress it from the face of the presentment, and that if they put it upon the face of the presentment, it will make it void? Therefore, this motion to quash the presentment cannot be sustained, either upon principle or upon authority.

PERRIN, J. This is an application to quash a presentment of Easter Term, upon two grounds: the first, because some of the documents upon which it was founded did not contain all the particulars which the statute directs; and secondly, because it is a conditional presentment. As

1839.

THE QUEEN

บ.

M'KAY.

1839.

v. M'KAY.

to the first objection, it is to be observed, that the application is made in Michaelmas Term, by a person who traversed this very presentment, THE QUEEN and who is, therefore, by act of parliament, prevented from further interfering with it; and made also by one who had twenty days' notice of it, and who might have come before the grand jury, and before the Judge, and made those objections; but who, instead of doing so, takes two traverses, and now calls upon us to review and quash the presentment. The act is plainly directory as to the number of perches, &c.; but, independent of this, if the objection had been made in Easter Term, it might have been remedied. Upon these grounds, therefore, this application cannot prevail. I think that, upon the second ground also, this objection is late; but as to the merits of the objection, that a conditional presentment is bad and void, if there was any foundation for the suggestion that this was a contrivance or fraud, or bad precedent, the Court would be astute to prevent it; but we allowed time for Mr. Latouche to prove the engagement he entered into, and I find a conditional presentment not only authorised, but directed, upon a gentleman coming forward and undertaking a work at his own expense. The supposed analogy, therefore, between indictments and presentments does not hold, nor does such a condition as is annexed to this presentment make the presentment void.

Motion refused, with costs.

23

EXCHEQUER OF PLEAS.

Monday, November 4th.

ARREST-NAME-DISCHARGE-23D NEW GENERAL

RULE-PRACTICE.

SYMES v. Batt.

MR. ATTHILL moved that the defendant be discharged out of the custody of the sheriffs of the county of the city of Dublin, from arrest, under the writ of capias quo minus which issued in this cause, on entering a common appearance, inasmuch as he was described in the writ as "Benjamin W. Batt," he having been baptized and always called and known by the name of "Benjamin Whiston Batt." He also applied for the expenses incident to the arrest, and for the costs of this application, rendered necessary by reason of the plaintiff's non-compliance with the terms of a notice calling upon him to consent to the defendant's discharge.

The defendant had been arrested on foot of a promissory note, of which he was the maker. The note was signed "Benjamin W. Batt," and by that name he was described, both in the process and affidavit to

hold to bail.

It appeared that he had filed his petition and schedule in the Insolvent Court, seeking to be discharged as an insolvent debtor, but that the petition had not yet been heard, the hearing having been postponed at the defendant's own instance.

This application was grounded upon the 23d General Rule of Easter Term, 1834:-"When the defendant is described in the process or "affidavit to hold to bail, by initials, or wrong name, or without a "Christian name, the defendant shall not therefore be discharged out of "custody, or the bail bond delivered up to be cancelled on motion "for that purpose, if it shall appear to the Court, or a Judge in Cham"ber, that due diligence has been used to obtain knowledge of the proper name."

66

Mr. Revell, for the plaintiff, opposed the motion, upon the ground of its being unnecessary, the plaintiff having offered to sign a consent for the defendant's discharge, provided it were to be without prejudice to the proceedings in the Insolvent Court. The plaintiff's debt had been returned by the defendant in his schedule.

1839.

SYMES

น.

BATT.

Mr. Atthill.-The defendant is entitled to his discharge unconditionally; Eggleso v. Stokes (a). No affidavit has been made by the plaintiff, as to his having used any effort, or made any inquiry to discover the real name of the defendant, which could have been easily ascertained. The plaintiff, therefore, so far from having used due diligence to obtain a knowledge of the proper name, has been guilty of gross neglect ; and, in such a case, the terms of the rule are imperative.

PENNEFATHER, B.*-The mode of signature adopted by a party, in signing a bill of exchange or other document, is prima facie evidence of such being his proper name. There are cases, however, which shew, that where a party signs by his initials only, some inquiry should be made for the purpose of ascertaining the real name. We think that the defendant is, under the circumstances, entitled to be discharged from the arrest, upon entering a common appearance; but we think it fair to add, that it shall be without prejudice to the proceedings in the Insolvent Court, and without costs.

Order accordingly.†

(a) Batty, 213.

The LORD CHIEF BARON was absent during the whole of this Term, in consequence of indisposition.

+ Vide the 3 & 4 W. 4, c. 42, s. 12, the provisions of which, however, do not extend to Ireland.

Wednesday, November 6th.

PRACTICE-MOVING ON POSTEA-JUDGMENT.

PERRIN and WRIGHT v HODGENS.

MR. PALMER, on behalf of the plaintiffs, applied to the Court to stop the defendant from moving upon the postea in this case, under the fol. lowing circumstances :—

The defendant having obtained a verdict, in order to save the expense of moving on the postea, his attorney was furnished by the plaintiff's attorney with a consent, whereby it was proposed that the plaintiffs should forthwith lodge with the Officer the sum of £50, on account of the defendant's costs, to be paid over to him as soon as the same should be taxed and ascertained; and in case that sum should prove insufficient, the plaintiffs further undertook to pay at once to the defendant balance that might remain due.

any

panied by a notice, requiring the defendant's

The consent was accom

attorney to furnish his

costs, and to proceed to have them taxed, and cautioning him against taking any further proceedings in the case.