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The court may require the prisoner to find sureties for his good behaviour

after the ex

commanding the Court below to proceed to give judgment on the conviction. (x)

The Court may also adjudge the defendant to give surety to keep the peace and be of good behaviour for a reasonable time, to be computed from and after the expiration of the term of his imprisonment, himself in a sum named in such judgment, with two sufficient sureties, each in a sum therein also mentioned, and may piration of his adjudge the defendant to be further imprisoned until such security imprisonment. be given; and such sentence does not amount to perpetual imprisonment, as in default of sureties being given the defendant would be entitled to be discharged at the expiration of the term during which the sureties were required. (y)

Conviction for perjury incapacitated the offender from giving evidence.

An indictment
for perjury
will not lie
under the
7 Geo. 4,

c. 57, s. 71,

against an insolvent debtor for omissions of property in his schedule.

Indictment for

a false answer

to the third

A consequence of a conviction for perjury, though it formed no part of the judgment, was, that the offender was incapacitated from giving evidence in a court of justice. (z) But a pardon restored his competency; except in the case of a conviction for perjury or subornation of perjury on the 5 Eliz. c. 9, (a) which provides that the offender shall never be admitted to give evidence in courts of justice until the judgment be reversed; and, therefore, the King's pardon would not in such case make him a competent witness. (b) But by the 6 & 7 Vict. c. 80, s. 1, a person is competent as a witness though he has been convicted of a crime or offence. (c)

The following cases may be introduced in this place.

An indictment for perjury, alleged to have been committed in the Insolvent Debtors Court, stated that the defendant gave in his schedule on oath that the same contained a true and correct account of all his debts, credits, &c., and then went on to state that certain persons, whose names were set out, were debtors to the defendant at the time of giving in his schedule, and that they were omitted in the schedule. It was objected that no indictment for perjury would lie on such omissions; that the offence of wilfully making such omissions was made punishable as a misdemeanor by the 7 Geo. 4, c. 57, s. 70, and the offence of perjury created by sec. 71 only applied to positive affirmations contained in the schedule. Lord Tenterden, C. J., 'I think the legislature contemplated the particular case of omissions, and provided for them in the seventieth section, the debts omitted being comprehended under the terms "effects or property" there used. The Act then goes on in the seventy-first section to make other falsehoods. in the oath of the party punishable as perjury. I therefore think the defendant must be acquitted.' (d)

Upon an indictment against the defendant under the 2 Will. 4, c. 45, s. 58, (e) for giving a false answer to the question whether he question under had the same qualification to vote as that for which he was registered, it appeared that the defendant had occupied a house at the

the Reform

Act.

(c) Rex v. Kenworthy, 1 B. & C. 711. (y) Reg. v. Dunn, 12 Q. B. 1026, decided on the authority of Rex v. Hart, 30 How. St. Tr. 1131, 1194, and 1344, where the judges, in answer to a question from the House of Lords, delivered their unanimous opinion that in all cases of misdemeanor the Court might give sentence in that form.

(z) Gilb. Ev. 126. Bull N. P. 291.

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time of the registration, for which he was on the register as a voter, but he had left it before the election, and the landlord's agent had, before the election, given the key of the house to another person, who had put horses into the stable and beer into the cellar, but the rent of such person did not commence till after the election; it was held that the defendant must be acquitted, as there was not evidence as to the determination of the defendant's tenancy. (ƒ)

Although a party who has

given up the property he rented at the time he was registered cannot vote,

victed of a

the 2 Will. 4,

c. 45, if he

bond fide believed he had a right to vote.

Upon an indictment against the defendant under the 2 Will. 4, c. 45, s. 58, (g) for falsely answering that he had the same qualification for which his name was originally inserted in the register of voters, it appeared that the defendant at the time of the registration was occupying a house at Turnham Green, as tenant to Mr. Kay, at the rent of 60l. per annum, but he left that house at Lady Day following, and in April commenced the occupation of still he ought another house at Turnham Green, as tenant to Mr. L., at a rent not to be conof 50l. and upwards per annum, and he continued in the occupa- false answer tion of this house from April till the time of the election. The to the question defendant had been told that he had no right to vote before he did in sec. 53, of so, but he said that he believed he had a right to vote, and that he had been so informed by a committee of two of the candidates, and that their opinion was sufficient to warrant him in voting. It was held that the nature of the qualification being the same, did not give the party a right to vote, merely because it fell within the general terms of the description which he had given to the revising barrister. The identity of the qualification must continue; and if a voter ceased to occupy the premises in respect of which he was registered, he thereby ceased to have a right to vote; and it was no answer to say that, although he had ceased to occupy those premises, he had entered upon the occupation of other premises of equal value. It had been urged that if the statement of the defendant was untrue, he made it under the advice of a committee; but that made very little difference, for if a party made a statement which he knew to be untrue, the opinion of an election committee (which generally had a pretty strong bias one way or the other) did not alter the character of the offence. But still the term 'same qualification' was undoubtedly an equivocal expression, and almost necessarily implied something of opinion as to a matter of law, and the jury ought not to convict a person of a misdemeanor, who possessed property of equal value to that which he held at the time of the registration, if he had acted bond fide, and had been guided in his conduct in a matter of law by persons who were conversant with the law, and who had told him that he possessed the same qualification for which his name was originally inserted in the register of voters. (gg)

(f) Rex v. Harris, 7 C. & P. 253, Lord Denman, C. J.

(g) See note (h), next page.

(gg) Reg. v. Dodsworth, 8 C. & P. 218. 2 Moo. & Rob. 72, Lord Denman, C. J. In Reg. v. Irving, 2 M. & Rob. 75, note (a), the same points arose, and Bosanquet, J., was decidedly of opinion that in point of law the qualification was not the same, but said that if the answer was given by the prisoner under a bond

fide belief that he still retained his quali-
fication, he should be acquitted. In the
same note the learned reporters advert to
the case where a voter is registered for
'land,' described as in his own occupa-
tion, or for freehold houses,' in some
specified street, and after the registration
he sells part of the land which was in his
own occupation at the time of the regis-
tration, or some of the houses of which
he then possessed the freehold; in each

Meaning of the 'same qualification.'

Mode of

putting questions at an election.

Wilfully.

Indictment.

The 'same qualification' in the 2 & 3 Will. 4, c. 45, s. 58, (h) means the same identical property. If therefore a party who is registered for a borough as a 107. householder gives up the house in respect of which he is registered, and takes another of superior value within the same borough after the egistration and before the election, he loses his vote, and if before and at the time of the election a new tenant has taken possession of the house that the voter has left, and is paying rent for it, the fact that a few articles of the voter's furniture remain in the house, and that the voter retains one of the two keys of it, will make no difference. (i)

So a voter in a borough who is registered as a 107. householder in respect of a house in Eldon Place, loses his vote, if after the registration and before the election he removes to another house in Eldon Place, although the house to which he removes is in every respect within the description contained in the register, and both houses are of the same size and value. (j) If therefore in such a case the party at an election states, in answer to the question put to him, that he has the same qualification for which his name was inserted in the register, he is indictable under the 2 & 3 Will. 4, c. 45, s. 58. (k)

In a register of a borough the word 'Penkhull,' which denoted a portion of the borough, was put at the head of several nanies, including that of the defendant, who was on the register in respect of a house in Eldon Place, and it was held that if there was no other Eldon Place in the borough, it was not necessary for the deputy returning officer, in putting the third question under the Reform Act, to add the word 'Penkhull' as part of the description. (j)

On an indictment under the 2 & 3 Will. 4, c. 45, for giving a false answer at the poll at an election of members of Parliament for a borough, it is not necessary that the returning officer should himself put the questions to the voters under sec. 58. But it is sufficient if the town clerk do it in his presence and by his direction; neither is it necessary to show that the agent who required the questions to be put was expressly appointed by the candidate ; it is sufficient to show that he has acted as agent for the candidate. (m)

The word 'wilfully' in an indictment on the 2 & 3 Will. 4, c. 45, s. 58, for giving a false answer at the poll, should be construed in the same way, and supported by the same sort of evidence, as in an indictment for perjury. To be untrue is not enough; for to be wilful it must have been false to the knowledge of the party at the time; and if he really misconstrues the facts, or misconstrues the law, he would not be guilty of the offence. (n)

An indictment under the same sec. against a voter for giving a false answer at the poll, which stated that at a certain election for

case, however, retaining enough in point
of value to confer a qualification, and in-
timate a doubt whether such a party
could truly answer the question in the
affirmative. C. S. G.

(h) This section is now repealed, see
35 & 36 Vict. c. 33.

(i) Reg. v. Bowler, C. & M. 559, Pat.

teson, J.

(j) Reg. v. Ellis, C. & M. 564, Patte

son, J.

(k) Ibid. See supra, note (h). (m) Reg. v. Spalding, C. & M. 568, Patteson, J.

(n) Reg. v. Ellis, supra. See supra, note (h).

a member of Parliament for the borough of Stoke-upon-Trent, the defendant appeared as a voter, and tendered his vote as such, and that he gave a false answer that he had the same qualification for which he was put on the register, whereas in truth he had not, appears to be bad, because it states all the matters by way of recital, and neither states the writ nor the precept for holding the election, nor that the defendant's name was on the register. (0)

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ques

tion in the register must

he read, or the party is not indictable.

Where on the trial of an indictment on the 2 & 3 Will. 4, c. 45, The descrips. 58, against the defendant for giving a false answer to the tion, Have you the same qualification for which your name was originally inserted in the register of voters now in force for the city of Bristol?' the sheriff's deputy stated that on the defendant tendering his vote he had asked him the question as set out in the indictment, but did not, at the end of the question, read from the register the line in which his name and qualification were inserted, Lucy William, House, Lodge Street.' Wightman, J., held that the defendant must be acquitted, as the particular qualification ought to have been read over. (p)

The first four counts of an indictment upon 5 & 6 Will. 4, c. 76, s. 34, stated that the defendant, upon delivering in a voting paper, in the name of a burgess entitled to vote at the election, was asked by the presiding officer the three questions in the terms of the Act, and then alleged, to which questions (each of the two first) the defendant then and there falsely and fraudulently answered, "I am;"' and Williams, J., after consulting Patteson, J., held that these four counts were bad for omitting the word 'wilfully. Wilfully to make a false answer to the question' proposed was the definition of the offence by the legislature itself, and it was a safe and certain rule that the words of the statute must be pursued. (q)

An indictment
false answer
for making a
to the ques
tions under the
5 & 6 Will. 4,
at a municipal
election must
aver that the
'wilfully'
made the

c. 76, s. 34,

defendant

false answer.

A father and
son of the
and residence,
and the son
votes at a

same name

municipal election.

The prisoner was indicted for falsely answering a question at a municipal election under the 5 & 6 Will. 4, c. 76, s. 34, The prisoner's father, William Goodman, had been a burgess of St. Alban's, and those names remained on the overseer's lists; but he had been absent from home for a considerable time; and the prisoner, whose name was also William, resided in the same house, and paid the parish rates, &c. At a municipal election the prisoner offered to vote, and being asked, 'Are you the person whose name appears as "William Goodman" on the burgess roll now in force,' answered 'Yes.' There was only one William Goodman on the roll. Wightman, J., held that there was no case against the prisoner. (7) Upon an indictment against the defendant for a misdemeanor, in falsely swearing that he bona fide had such an estate in law or equity of the annual value of 300l., above reprises, as qualified him to be a member of Parliament for a borough; a surveyor stated that the fair annual value of the property was about 2007. a year, but another witness stated that it was badly let, and be- Parliament.

(0) Reg. v. Bowler, C. & M. 559, per Patteson, J. The defendant was acquitted in this case. In Reg. v. Ellis, C. & M. 564, the indictment was in a similar form, the defendant convicted, and_the judgment arrested in the Queen's Bench, no cause being shown.

(p) Reg. v. Lucy, C. & M. 510. This enactment is now repealed, see 35 & 36 Vict. c. 33, sched.

(2) Reg. v. Bent, 1 Den. C. C. R. 157 2 C. & K. 179. The above section is in part repealed by 35 & 36 Vict. c. 33.

(r) Reg. v. Goodman, 1 F. & F. 502.

Indictment for falsely swearing to a

to sit as a qualification member of

Indictment against a magistrate for

an oath con

trary to the

5 & 6 Will. 4, c. 62, s. 13.

lieved it was worth more than 300l. a year, and that he told the defendant so, and that he did not think that the defendant had any reason to believe that the qualification, in point of value, was not sufficient. It was held that the jury must be satisfied, beyond all doubt, that the property was not of the value of 300l. a year, and that, at the time the defendant made the statement, he knew that it was not of that value. (s)

The first count of an indictment upon the 5 & 6 Will. 4, c. 62, s. 13, charged that the defendant, being a justice of the peace, did administering unlawfully administer to and receive from J. Huxtable a certain voluntary oath touching certain matters and things whereof the defendant had not jurisdiction or cognizance by any statute. The second and third counts slightly varied, and the fourth count negatived the proviso in sec. 13. There were other counts charging the defendant with administering oaths to two other persons. The defendant had made a complaint to the bishop against two clergymen, who officiated in his parish, that one had played at thimble-rig, and that both had neglected the duties of the parish. The bishop intimated that, before he could call on the clergymen to answer the complaint, the defendant must either bring before him the persons who proved the charges, or obtain statements in writing of the facts. The defendant obtained statements from the three persons mentioned in the indictment, and swore them before himself, as a justice of the peace, to the truth of the statements. The bishop had before appointed a day for hearing the charges, and had summoned the clergymen to attend; but on finding that the depositions had been thus sworn, he declined to look at them; he went, however, into the charges on other evidence. It appeared that the defendant was ignorant of the statute rendering the administering voluntary oaths illegal. It was contended, that the enacting part of the statute must be construed with reference to the preamble; that the enacting clause, which prohibits any justice of the peace, or other person,' from administering oaths, other than in matters over which jurisdiction was given by statute, if taken by itself, would render unlawful the taking of many oaths which could be administered by the common law, that the enactment construed together with the proviso was still too stringent, and that the enactment and proviso must be governed by the preamble. Coleridge, J., in summing up, said, he was of opinion that the enacting part of the statute was not governed by the preamble; that he considered the enacting part of the section and the proviso preserved to justices of the peace all the jurisdiction they had, as well at the common law as by statute, to administer oaths; and that the inquiry before the bishop was clearly a matter in respect of which the defendant had no jurisdiction, either at common law, or by statute. He directed the jury, that, if they were satisfied the defendant did administer the oaths, they should find him guilty. The jury found the defendant 'guilty of inadvertently administering an oath or oaths;' and Coleridge, J., held that that was a verdict of guilty. (t)

(s) Rex v. De Beauvoir, 7 C. & P. 17, Lord Denman, C. J. A property qualification for a member of parliament is not now necessary, see 21 & 22 Vict.

c. 26; 37 & 38 Vict. c. 66.

(1) Reg. v. Nott, C. & M. 288. See the section, ante, p. 30.

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