Symes v Batt

• Jurisdiction: Ireland
• Judgment Date: 04 November 1839
• Date: 04 November 1839
• Court: Exchequer of Pleas (Ireland)

EXCHEQUER OF PLEAS.

SYMES

and

BATT.

Eggleso v. Stokes Batty, 213.

ARREST NAME DISCHARGE 23D NEW GENERAL RULE PRACTICE.

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-compliÂÂance with the terms of a notice calling upon him to consent to the defendÂÂant'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 InsolÂÂvent 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 ChamÂÂ" ber, that due diligence has been used to obtain knowledge of the " proper name." 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. 24 CASES IN THE EXCHEQUER OF PLEAS. Mr. Atthill.-The defendant is entitled to his discharge unconditionÂÂally ; Eggleso v. Stokes (a). No affidavit has been made by the plainÂÂtiff, 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...