ject according to the argument of the traversers' counsel. "For "remedy whereof be it enacted, that in all case where bills of indictment are laid before Grand Juries in Ireland for their con"sideration." There the Legislature contemplated, as might be expected from the insertion of the recital, that this remedial Statute they were about to pass, was to be as extensive in its operation as the mischief they complained of, and that no case was to be excepted from the operation of it, no reason being assigned why it should be excepted. "In all cases," it says, "where bills of in"dictment are to be laid before Grand Juries in Ireland for their "consideration, the Clerk of the Crown at the Assizes, and Clerk "of the Peace at Quarter Sessions, or his or their deputy," that is, when such officer shall exist. They are instances that such officer should act in pursuance of the operation of the Act, which is as general as language can make it, and is to operate in all cases. Now the Clerk of the Crown at Assizes, and the Clerk of the Peace at Quarter Sessions would be incompetent and unable to act in all cases; they can only act in their respective counties. Wherever they exist, they are the proper officers called on to put this Act into execution, that is, not in exclusion of other cases where similar and proper officers exist, though not distinctly enumerated in the Act. Those that are particularised are instar omnium, and put by way of example, that is, when those officers do exist they shall be the persons to carry the Act into execution; but they do not exclude the duty from being performed by other officers similarly situated, who in a case within the same mischief are called on to carry the Act into execution; and in cases where there was no Clerk of the Crown at the Assizes, or Clerk of the Peace at the Sessions, as at. the Commission Court in Dublin, whenever the services of a similar officer are required, as, for instance, the Clerk of the Crown in this Court, or the Clerk of the Crown of the Commission Court, they are to be the persons to carry the Act into operation. Give it that meaning, then the words "in all cases" will be explained, whereas give it a contrary meaning, then those words will apply to cases where such officers have not a power of acting. This case therefore is unlike several of the cases that have been cited. It is not a case where by adhering to the literal construction we can carry out the intention of the Act, because the Clerk of the Crown at the Assizes, or the Clerk of the Peace at Quarter Sessions would have no jurisdiction to interfere in the Court of Queen's Bench, or the Commission Court in Dublin, and to give it such a construction would be to frustrate the intention of the Act. I find in this way of construing the Act of Parliament, that no part of it is in opposition to another, but each part bears on the other, and all cooperate to the same end. Then comes the proviso: "provided always, that the said oath or "affirmation is not to be in addition to, but in lieu of that hereto"fore administered under the provisions of the 56 Geo. III.," that appears to furnish a further argument on the same view of the subject; there is an express proviso, that the oath to be administered by the Grand Juries is not to be in addition to, but in lieu of the

oath to be administered by the 56 Geo. III.; it is to be a substitution for that; it therefore necessarily follows, it is to be as extensive as the oath in lieu of which it is substituted-it is to be a complete substitution, not an addition. Then comes the further proviso: "That no "Foreman of any Grand Jury, nor any other member therof, shall "have power to administer such oath or affirmation to, or to examine any witness in support of any bill of indictment, whose name shall "not have been previously endorsed on such bill of indictment by the "Clerk of the Crown, or Clerk of the Peace, respectively;" not saying such Clerk of the Crown, or such Clerk of the Peace, nor making any distinct reference to the Clerk of the Crown, or Clerk of the Peace, but wherever there is to be an oath administered, the witnesses' names must be endorsed on the bill by the Clerk of the Crown, or Clerk of the Peace generally; the meaning was, that they were the officers to put the machinery in motion, as an example only, but they do not exclude the application of the Act to all similar instances, and according to various cases, that which falls within the same rule falls within the same remedy. That is the view I have taken upon the subject, and I do not find that the ingenuity of the traversers' counsel has had the effect of raising a doubt upon my mind upon the construction of the Act.

Another question has been raised, which has not been overlooked by the counsel for the Crown, though not pressed by them; and in the view I have taken of the case, it is unnecessary I should give any opinion with regard to this point of form; but if called upon to make a decision as to it, I should be of opinion that the plea was ill. It is a dilatory plea in contemplation of law; a kind of pleading to which no favour is held out by the law, because it tends rather to defeat than promote justice, and no strictness can be regarded as too great with regard to such pleading. I need not go through the cases upon the subject; they are found collected in 2 Sand. 203, a.; Cro. Jac. 82; 3 T. R. 185. There appears an insufficiency in the form of this plea. It is a plea to a bill of indictment, that one or two of the witnesses were not sworn in open court-that is, that it must be bad, not being found upon the testimony of witnesses sworn in open Court; but the Act provides that the affirmation of witnesses shall be sufficient. Now, suppose this bill had been found upon the affirmation of Quakers, would that be a bad bill because it was not on sworn testimony? I think not. Therefore, upon that ground, as well as upon the true construction of the Act of Parliament, I am of opinion that the plea is bad, and that the demurrer which has been put in, on behalf of the Crown, must be allowed.

Mr. JUSTICE BURTON Concurred.

Mr.JUSTICE CRAMPTON.-I shall best promote the administration of justice by being silent on the subject, which has been so elaborately and learnedly discussed by my Lord Chief Justice. I do not enter into the discussion of the formal defect in the pleas at all; I found my judgment on the Statute itself. I adopt the extended construction given to it by the Attorney-General, and which was the construction

put on it in the first judicial consideration given to it, and which has been continued to the present time. I think that is the only one consistent with the context, and the only one which can effectuate the manifest intention of the Legislature appearing on the face of the Statute itself. It appears to me that the argument of the counsel for the traversers results entirely from considering what is a mere misdescription or imperfect expression of the character of the officer by whom the bill is to be sent to the Grand Jury, as an essential part of the enactment. I, therefore, concur in the judgment of my Lord Chief Justice.

Mr.JUSTICE PERRIN.-I think it right in this case, even at the expense of a further consumption of the public time, to state the grounds on which I concur with the judgment of the Court. The question in this case is, whether, by the law of Ireland, a bill of indictment can be lawfully found on the testimony of witnesses not sworn in open court, but sworn in the Grand Jury room by the foreman, or some other member of the Grand Jury. This question depends on two Statutes; the one is the 56 Geo. III. c. 87, the other the 1 & 2 Vic. c. 37, and upon their just construction. Many authorities have been cited not bearing upon the question that really arises, of which authorities, therefore, I shall take no notice; and several positions have been contended for on the one side and on the other, which, in the view of the case which I deem it right to take, I do not consider it necessary to discuss, no question as to their applicability appearing to me to arise or to exist in this case. For instance, on the one side it has been argued that, though a case is not within the letter, it may be within the equity of the Statute, and may be extended to the mischief, though not provided for in terms. On the other side it was contended, that the Court should be bound strictly by the letter of the Statute, and that if any case, not within the letter of the Statute, requires a remedy, it must be left as a matter to be remedied by the Legislature. It does not appear to me necessary to make any observation on that position. But one has been put forward, however, namely, that the Grand Jury may find a bill without evidence, and that the matter is not to be inquired into by the Court; and against that position I beg leave decidedly to protest. I hold, that an indictment cannot lawfully be found in Ireland but upon the testimony of sworn witnesses, whose names are endorsed on the indictment. When I use the word "sworn," I mean persons to whom an oath has lawfully been administered, except in cases provided for by particular Statutes under particular circumstances, as in the case of Quakers, Moravians, and Separatists, who may give their testimony on affirmation. Then the only question here is, whether the witnesses must be sworn in Court, or before the Grand Jury. Now the 56 Geo. III. c. 87, most distinctly and explicitly provides, that no bill of indictment can be returned a true bill, unless the same has been found by the Grand Jurors on the evidence of one or more witnesses for the Crown, sworn in Court, and produced before them. This Statute is declaratory of what the law was, as well as an enacting Statute. Under its provisions the witnesses

were produced in open Court, and they were sworn in Court, and their names were endorsed by the Clerk of the Crown or the Clerk of the Peace, or by the proper officer of the Court for preparing and sending up the bill to the Grand Jury, no matter where that Grand Jury was empannelled. That was the duty either of the Clerk of the Crown or the Clerk of the Peace, and an imperative duty under this Statute to put the names of the witnesses on the bill; and, accordingly, that has been the practice ever since. When he had administered the oath to the several witnesses, they were afterwards to be examined before the Grand Jury; but this practice of administering the oath in open Court, was found to be productive of some mischief and inconvenience. It was found to produce a great deal of delay, accompanied by want of decorum, and was found, in fact, very injurious to the administration of justice. A number of the witnesses were sworn together, in a hurried manner, they were then sent off to the Grand Jury, and were examined by the Grand Jury, either immediately, or, perhaps, after a considerable interval, and it was felt not only to be indecorous in practice, but objectionable as separating the witness from the impression that he was giving his testimony under the sanction of an oath. That was one of the inconveniences to be provided for, for which the Statute 1 & 2 Vic. c. 37, was enacted. Wherever the Statute of 56 Geo. III. c. 87, was in operation this inconvenience was found to prevail. It prevailed as well at the Commission Court in Dublin as at the Assizes in the country; and accordingly the Statute 1 & 2 Vic. recites the former Act in these words: "Whereas by an Act passed in the 56 Geo. III. entitled, " An "Act to regulate proceedings of Grand Juries in Ireland upon bills "of indictment, reciting that a practice had prevailed in many of the "Grand Juries in Ireland to find bills of indictment without exa،، mining witnesses for the Crown, &c., and whereas the provision "for the viva voce examination has been found most salutary; but "the administration of the oath in Court has been productive of de"lay and other inconveniences." It then proceeds to provide for and remedy this inconvenience, which was not confined to any particular place or any particular Court, but was just as general as the provisions of the Statute under which it was enacted, and accordingly it proceeds thus: "For remedy whereof, that is, for the remedy of the inconvenience which prevailed as generally and extensively as the Act itself, “ be it therefore enacted, &c., that in all cases where bills “of indictment are to be laid before Grand Juries in Ireland for their consideration," that is, in all cases where the inconvenience prevailed, "the Clerk of the Crown at the Assizes and the Clerk of the "Peace at Quarter Sessions, or his or their deputy, shall endorse upon the back of such bill of indictment the name or names of the "witness or witnesses for the Crown in support of such bill, and shall "send the same so endorsed to the Grand Jury." The Statute is in my mind defective, in not going further and mentioning other Clerks of the Peace and Clerks of the Crown, or in not using general terms to embrace them all. It then goes on and says: And the Foreman or

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"other member of the Grand Jury so empannelled, twelve members "of the said Grand Jury (at the least) being then present, shall, and he "is hereby authorized and required so to do, previous to the exami"nation of the witnesses whose names shall appear indorsed on the "back of the bill of indictment, administer to such witness the oath." This provision is universal; it is general and not confined to any particular Grand Jury. It says, "the Clerk of the Crown at the Assizes, and the Clerk of the Peace at the Sessions;" that is, at the Assizes or Sessions at which the bills which they shall respectively prepare, shall be sent up according to their duty and the practice of indorsing the names of the witnesses to be examined; and he shall, according to this provision, send them up to the Grand Jury. The omission to which I before adverted exists here; but the Statute enacts, "that the Foreman of the Jury so empannelled," not having alluded to any empannelling previously, but meaning that when the Grand Jury is empannelled the Foreman shall administer the oath to the witnesses whose names are endorsed on the bill; which oath shall be in lieu of that formerly administered under the 56 Geo. III., to every witness; and upon every bill in every Court where the bill is prepared by the Clerk of the Crown or Clerk of the Peace;" and the Foreman and other member of the Grand Jury "who shall have administered such oath or affirmation shall, on the "back of such bill of indictment, &c. Provided always, that the "said oath or information shall not be in addition to, but in lieu of, "that heretofore administered in Court, &c.; and provided also, "that the Foreman of the Grand Jury, or any other member thereof, "shall have power to administer such oath, &c., and to examine "any witness, &c., whose name shall not have been previously "endorsed on such bill of indictment by the Clerk of the Crown "or Clerk of the Peace respectively." That is, by the Clerk of the Crown or Clerk of the Peace whose duty it was; and whose duty it was equally in the Queen's Bench or Commission Court, as at the Assizes or Quarter Sessions. He was to prepare the bill, whose duty it was to do so, and the Foreman of the Grand Jury is not to administer the oath to any person but those whose names are sent up. That appears to me to be distinct and explicit. Under the 56 Geo. III. every Clerk of the Crown and Clerk of the Peace endorsed the names of the witnesses on the indictment. A difficulty has rather been suggested than argued, that no authority was given to the Clerk of the Crown in the Queen's Bench to do this act. It was unnecessary that any authority should be given to him to do this by Act of Parliament. It is certain that no authority is given to the Clerk of the Crown in the Queen's Bench to do so; but surely an Act of Parliament is not necessary to authorize the Clerk of the Crown to do his duty, which it is necessary that he should do in order to carry out the provisions of the Act of Parliament. It is not his endorsement, but the Act of Parliament, which gives authority to the Foreman of the Grand Jury to administer the oath, instead of that