JACK v. NOBLE. notice), "undertake by notice to comply therewith." The service H. V. 1867. Exchequer. of the notice requiring the security, and the non-compliance with what it requires, are essential to confer upon the defendant the right to make the application. If we should hold that the notice of motion under the 52nd Order may be served before the right to make the motion has arisen, we should determine what would lead to inconvenient results in practice. No hardship can be imposed by a strict compliance with the terms and spirit of the Order. But the relaxed construction of it, for which the defendant contends, would expose suitors to needless expense, by tempting practitioners first to delay giving the notice requiring security for costs, and then to file affidavits in support of a motion, before the time for answering the notice has expired. The costs of these, if the preliminary notice be complied with, must be a useless expense, since they could never be recovered from the opposite party; who, on his side, may be involved in uncertainty and expense, in reference to a pending motion which he renders useless by a compliance with the preliminary notice. FITZGERALD, HUGHES, and DEASY, BB., concurred. No rule on the motion. J. HODGENS v. H. H. POE.* THIS was an action for assault and false imprisonment, and was tried at the last After-sittings in this Court. At the trial it appeared M. T. 1866. A warrant of committal for trial stated "J. P., of that the defendant, being a Justice of the Peace, was present at N.," as com plainant, and "W. K., J. H., and J. S.," as defendants, recited a complaint against the said defendants, and then proceeded, "This is to command you, &c., to lodge the said of N., in the gaol of N.," &c. Held, that this warrant was no defence to an action for false imprisonment by J. H. against the Justice who signed the warrant. Before the Full Court. M. T. 1866 HODGENS V. POE. divine service at the parish church of Nenagh, when a disturbance took place, caused, it was alleged, by the plaintiff; and the defendant was requested by the churchwardens to interfere; and the defendant thereupon took the plaintiff into custody, and detained him, to examine into the offence, and to receive the informations of the officiating clergyman and others. These informations having been made, and the plaintiff not having entered into the sureties required by the statute, defendant duly made his warrant, and committed plaintiff to gaol until he should find sureties. At the trial the following warrant was produced :— "Petty Sessions (Ireland) Act 1851-14 & 15 Vic., c. 93. "Form Eb-Warrant to commit (or detain) for trial. "Whereas a complaint was made, on the 8th of January 1865, "on the oath of two credible witnesses, that the defendants did, "on this day, at Nenagh, in said county, disquiet and disturb a "congregation assembled for public worship in St. Mary's church, "in the town and parish of Nenagh aforesaid." "This is to command you to whom this warrant is addressed "to lodge the said of Nenagh, in the gaol of Nenagh, in "said county of Tipperary, there to be imprisoned by the keeper "of the said gaol, as follows: "Until they shall find two sureties to be bound by recognizance "in the penal sum of £50, late Irish currency, being equivalent to "the sum of £46. 3s. 1d., British currency, to appear and take their "trial at the next General or Quarter Sessions for the said county, "for the said offence; and for this the present warrant shall be a sufficient authority to all whom it may concern." "To Head Constable James Long, of Nenagh. "Dated this 8th Jan. 1865." Signed-HENRY H. POE, Counsel for the plaintiff asked for a direction, on the ground that this warrant was illegal. The Judge refused such direction, but Exchequer. HODGENS บ. POE. told the jury, if they found for the plaintiff, to assess damages se- M. T. 1866. parately for the two alleged imprisonments of the plaintiffs-one prior to, and the other subsequent to the warrant of committal. The jury found for the plaintiff for £5, on the supposition that the warrant was legal, and £5 for the further imprisonment, on the supposition that the warrant was illegal. The Judge directed a verdict to be entered for £5, with liberty to move to have it increased by £5. The plaintiff, having obtained a conditional order, pursuant to the leave reserved Macdonogh now showed cause. The simple question is, whether this warrant of committal is void or not, because the names are not in the body. This is a warrant to detain for trial-not to punish. Here, however, the names of the parties against whom complaint has been made are stated in the beginning of the warrant; then the warrant goes on "this is to authorise you to lodge the said " blank; but "the said" amounts to the insertion of the defendants' names. It could not be to lodge the complainant, against whom no complaint was recited. [FITZGerald, B. The complainants are mentioned as of Nenagh, and the defendants are not so described; and the warrant is to lodge "the said" of Nenagh. That must be the complainants.]-But it is to take his trial for the said offence; no one is charged with an offence except the defendants. The recital explains the offence as at Nenagh.-[DEASY, B. And the complainant is not of Nenagh; he is churchwarden of Nenagh.]The whole context unavoidably tends to the conclusion that the warrant is to take the defendants into custody.-[FITZGERALD, B. Would this warrant be held a sufficient answer on a return to a writ of habeas corpus ?]-Warrants of this kind are not to be scrutinised as warrants on final process: Lev. Justice of Peace, p. 106. The Court will not discharge, even where the committal is bad, if it is a committal for safe custody. They will call for the informations, and then determine what is to be done: Chit. Criminal Law, pp. 111 and 115. Even where VOL. 17. 49 L M. T. 1866. KENNEDY KELLY. James Greene (amicus Curia) referred to the dictum of the LORD CHIEF BARON in Dunsandle v. Finney (a). PIGOT, C. B. There are certain forms of pleading well known to the Profession; and any departure from those forms is, prima facie, an objection to a pleading. In England the general issue still exists; and a defence, such as is here in question, might come within it. But in this country we have no rule which expounds the meaning of defences of that character. In England, general rules limit the application of certain general pleas, giving them such a construction that they import a traverse of certain matters only. One reason why we have no such rule here is, that the Common Law Procedure Act, partly by its terms, partly by the construction given to it in our Courts, requires that the particular point of defence relied on shall be specified in the pleading. Accordingly, we have held that defences amounting to what was formerly understood as the general issue are objectionable. This defence is open to two objections. First, it is ambiguous, as to whether it amounts to a statement that the defendant never was indebted, or to a statement that at the time of action brought he was not indebted. That he was not indebted at the time of action brought would have been consistent with a variety of circumstances, to be shown by specific defences. If this defence means the first, it is too large. But if it means that no debt was due at the time of action brought, then it is pregnant with an admission that a cause of action once subsisted; and it does not show that that cause of action has been discharged. Nothing is more simple than the usual form in which a pleading for the purpose of presenting the defence relied on in this action is framed. According to my recollection, there was some controversy shortly after the passing of the Common Law Procedure Act, whether, in an action for goods sold and delivered, it was not necessary to traverse the delivery of the goods, and also the sale. I believe that, upon consideration, we came to the conclusion that it (a) 10 Ir. Com. Law Rep. 171. subject is concerned: Boyd v. Durand (a). Rex v. Hazell (b) shows that no intendment will be made in favour of a warrant. That was certainly a warrant in execution. Butler v. Bianconi (c) shows what particularity is required in the processes of inferior jurisdiction. In re Byrne (d); Rex v. Horne (e); Dalton's J. P., c. 117, p. 329; Regina v. Galvin (f); Regina v. Pelham (g); 1 Hale's Pl. Cr., p. 577. Dowse. This warrant is framed in pursuance of the form Eb in the schedule to the Petty Sessions Act. Its exact extent must be set out in the warrant. The complaint is made against the three defendants; and if this warrant is good for anything, the whole three not only may, but must be taken into custody. These parties might have been admitted to bail. Suppose one of them admitted to bail, and the other two were not, and the warrant was drawn up in this form, then the constable might have taken the whole three into custody.— [DEASY, B. Yes; for the constable is only to read it, not to construe it.-PIGOT, C. B. Certainly, the introduction of two or three names, or of one name, would be perfectly consistent with the title.]—Suppose, again, one gave bail, and then he was arrested, and he brought his action, then the defendant might come in and say, "I did not order the arrest of that man:" Paley on Conv., p. 276; Chit. Cr. Law, p. 110: 1 Burns' J., p. 776. Ryan, in reply. The real question is, do the names of the parties appear in this warrant or not?-[PIGOT, C. B. The very circumstance of our having this argument is a strong presumption against you. Is the constable to go through a process of reasoning of this kind?]Rex v. Elderton (h) shows that there is a distinction as to the way in which the Court will deal with a warrant for safe (a) 2 Taunt. 161. (c) 11 Ir. Law Rep. 286. (e) Cowp. 672. (g) 2 Cox, Cr. C. 17. (6) 13 East, 139. (d) 11 Ir. Law Rep. 538. (h) 6 Mod. 88. M. T. 1866. HODGENS V. POE. |