1845.

REGINA

v.

ROSE

whereas the notice that is here given is of an intention to move "in six days," which would be complied with if the motion were made on the sixth day. The objection urged against the order is, that it does not shew on the and Another. face of it that the application for it was made within forty days from the service of the summons on the putative father. This objection arises under the 7 & 8 Vict. c. 101, sec. 4, which enacts, "that no such order shall be made unless applied for at such petty sessions within the space of forty days from the service of the summons-on the person alleged to be the father of such bastard child." We shew, upon affidavit, that in point of fact the application was made within the specified time; and it is submitted that it is not necessary that it should appear on the face of the order. It is true that in the form given in the schedule to the recent act, 8 Vict. c. 10, sched. No. 8, there is an allegation that the party has been served within forty days from the date of the order; but those forms are directory only. In Nolan on the Poor Laws, vol. 2, p. 299, 4th ed., and in Paley on Convictions, pp. 128, 129, 3rd ed., it is laid down that in strictness it is not necessary that it should appear on the face of orders of this description that the party has been summoned; for the Court will intend he was, unless the contrary appear. In the case of The King v. Venables (a), which was an order to suppress an alehouse, it was held, that although a summons must appear on a conviction, it need not on an order of that description. And in the case of The King v. Clayton (b), it was held, that every reasonable intendment should be made in favour of an order in bastardy.

F. V. Lee, in support of the rule. With respect to the objection to the notice, "in six days" does not necessarily mean "within six days." Taken in conjunction with the words " or as soon after as counsel can be heard," it

(a) & Mod. 377.

(b) 3 East, 58.

1845.

REGINA

V.

ROSE

evidently means at the expiration of six days. At any rate, it is a sufficient compliance with the terms of the statute, which requires "six days' notice" of the intention to move. and Another. The objection to the order, it is submitted, has not been answered. It is conceded that it does not appear on the face of the order, that the application on which it proceeds was made within forty days from the service of the summons; and it is submitted that that was necessary in order to give the justices jurisdiction. If that be so, then whatever difference of construction it may be said prevails with respect to orders as distinguished from convictions, it must be taken as settled law that justices must shew on the face of their orders that they have jurisdiction to make them. The form given in the schedule to the 8 Vict. c. 10, No. 8, is a strong corroboration of the validity of the present objection. That act was expressly passed, as may be found from the recital, to aid defects in orders which were rather of form than of substance; and it only cures defects which follow the form given in the schedule, or which are "to the like tenor and effect." When reference is made to the form given in the schedule for an order like the present (sched. No. 8), it will be found that there is an express statement that the putative father has been duly served with the summons within forty days from the date of the order. It cannot be contended that in the present case there is any statement to the like tenor and effect.

[E. Yardley referred to In re Flounders (a), as shewing that the notice given was insufficient. There the notice was of an intention to move "on the first day of next Hilary Term, or so soon after as I can be heard;" and the Court held this notice to be irregular.]

PATTESON, J.-In the case of In re Flounders, the notice was served on the first day of Hilary Term, the very day

(a) 4 B. & Ad. 865; S. C. 1 N. & M. 592.

on which the motion was to be made; and the notice was bad on the face of it, as it clearly treated the six days' notice as unnecessary. Here the notice is good on the face of it, for it is a notice that "in six days, or as soon after as counsel can be heard," the motion will be made; and I think that must be taken to mean after the six days have expired.

With respect to the other point, without entering into the objection about the petty sessional division, which might involve the construction of the act of Parliament under which Mr. Rose is appointed, it seems to me that the omission to state that the order was applied for within forty days from the service of the summons on the putative father is fatal; for it is quite clear that the justices had no jurisdiction unless the application was made within that period; and therefore it ought to have appeared on the face of the order that it was made within the limited time. The statute, 8 Vict. c. 10, has been referred to, which was passed to remedy defects in orders which were "wholly beside the merits of the cases." That statute declares that all orders which shall be set forth according to the forms given in the schedule to this act, "or to the like tenor or effect," shall be valid and sufficient in law. Now, on reference to the form given in the schedule of such an order as the present, there will be found to be a statement that the order is made within forty days from the service of the summons. would seem, therefore, that the Legislature thought that this should appear on the face of the order; and it is clear that as it does not appear on the present order, the provisions of that statute cannot be called in aid to cure the defect. It has been urged, however, that there is a distinction between orders and convictions; and Mr. Paley has been cited as an authority that a bastardy order is not to be treated as a conviction, or construed so strictly. The inclination of this Court, however, of late has been to treat orders of a final nature, like the present, more as convictions than as orders. I do not mean to say that an order in

It

1845.

REGINA

11.

ROSE

and Another.

1845.

REGINA

v.

ROSE

bastardy is to be considered for all purposes as a conviction; but I do not quite see how an order fixing a party as the putative father of a bastard, and compelling him to pay the and Another. costs of its maintenance, differs materially from a conviction. I should have hesitated about granting this motion, if this had not been an objection to the jurisdiction of the magistrates; but as it is, I think the objection must prevail, and that the rule for a certiorari must be made absolute.

Rule absolute.

To a declaration in debt for goods sold and delivered, and

on an account

stated, the defendant pleaded, that by a certain indenture bearing date, &c. (profert) the plaintiff released to the defendant the debts and causes of action in the declaration mentioned. The plaintiff replied non est factum,

on which issue was joined: Held, that the plaintiff under this replication could not give

in evidence that the debt

for which the

action was
brought was
not included
in the release ;

JUBB v. ELLIS.

DECLARATION in debt for goods sold and delivered,

and for money due on an account stated.

First plea, the general issue. Second plea, that after the accruing of the said debts in the declaration mentioned, and before the commencement of the suit, to wit, on the 17th of January, A. D., 1845, the plaintiff, by a certain indenture in writing, sealed with the seal, &c. (profert), released to the defendant the said debts and causes of action in the declaration mentioned.

The plaintiff replied, taking issue on the first plea, and replied to the second, non est factum, on which issue was joined.

At the trial which took place before the Secondary of London, it appeared that the action was brought to recover the sum of 91. 14s. 6d., for goods furnished by the plaintiff to the defendant. The defendant had become unable to meet his engagements, and had been obliged to compound with his creditors, amongst whom was the plaintiff. His creditors had consented to accept a composition of six shillings in the pound in full of all their demands, and the plaintiff, amongst the rest, executed the deed of release mentioned

but should have new assigned.

in the plea. The plaintiff's claim against the defendant had amounted to 1527. 16s., including the above sum of 97. 14s. 6d. ; and he sought to shew at the trial, that this sum of 91. 14s. 6d. had been excepted from the release, in consequence of an arrangement to return the goods to that amount, which had not been complied with; and that the defendant had subsequently promised to pay that sum. It was objected, that it was not competent to the plaintiff, on the above pleadings, to shew that he was proceeding for a claim not included in the release; but that he ought to have new assigned, in order to enable him to do so. The cases of Rogers v. Custance (a), and Simons v. Johnson (b), were referred to; and the Secondary, holding the objection to be a valid one, nonsuited the plaintiff, reserving leave to move to set the nonsuit aside.

H. S. Wilde, now moved for a rule, calling on the defendant to shew cause why the nonsuit should not be set aside, and a new trial had between the parties. He submitted that the evidence offered at the trial to shew that the debt for which the action was brought was not included in the deed of release, was admissible. The plaintiff being a party to the deed, could only reply non est factum, and could not reply that he did not release. It is laid down in Stephen on Pleading, pp. 221, 2, 4th edition, "that a party to a deed who traverses it, must plead non est factum, and should not plead that he did not grant, did not demise," &c., and for this, the following authorities are cited; Doct. Pl. 261; Robinson v. Corbett (c); Taylor v. Needham (d). And the reason for this rule rests on the doctrine of estoppel, which will not permit a man to contradict his own deed; although he may say, that the deed is not his. The new rules of pleading, Reg. Gen., Hilary Term, 4 Wm. 4, do not apply to replications, and therefore whatever might have

(a) 1 Q. B. 77; S. C. 4 P. & D. 574.

(b) 3 B. & Ad. 175.

(c) Lutw. 656.

(d) 2 Taunt. 278.

1845.

JUBB

v.

ELLIS.