was holden to be laid on the act of taking the false oath in a case where perjury was assigned on an affidavit of an attorney of the Court made in answer to a summary application against him, and where it was objected that it was not stated where the Court was holden when the original application was made, or when the rule was made, calling upon the defendant to answer the charge, it being expressly averred that the defendant then and there before the said Court was duly sworn.' (y) In the instance of making an affidavit in the country, the party is not to be indicted where the affidavit may happen to be used, but in the county where the offence was completed, by making the false oath. (c) indictment. The indictment need not state the time at which the offence was Allegation of committed in any case where time is not of the essence of the time in the offence. (a) Where it is not material, it need not be averred; and if averred, it may be rejected. (b) In a case where an indictment for perjury, charged to have been committed in the defendant's answer to a bill of discovery filed in the Court of Exchequer, alleged that the bill was filed on a day specified, it was holden that the day was not material, as it was not alleged as part of the record and, therefore, that it was no variance, though the bill, when produced, appeared to be entitled generally of a preceding term. (c) Where the perjury was assigned in answer to a bill alleged to have been filed in a particular term, and a copy produced was of a bill amended in a subsequent term, by order of the Court, it was held to be no variance, the amended bill being part of the original bill. (d) So it has been held on an indictment for perjury committed on the trial of a cause at nisi prius to be no variance that the nisi prius record states the trial to have been on a day different from that stated in the indictment, there being no express reference in the indictment to the record. (e) the indict It is proper to make such a statement by way of inducement as Necessary will be sufficient to explain the assignment of perjury, and make it statement in intelligible and consistent. And such statements in the indictment ment. should be made with accuracy. An indictment for perjury stating Variances. a bill of Middlesex as 'issuing out of the office of the chief clerk assigned to inrol pleas in the Court,' &c., has been holden to be bad. (f) And if the indictment state that at the assizes, holden before justices assigned to take the said assizes, the oath was taken before A. B., one of the said justices, the said justice then and there having power, &c., it will be a fatal variance if the oath was administered when the judge was sitting under the commission of oyer and terminer and gaol delivery. (g) (y) Rex v. Crossley, 7 T. R. 315, ante, p. 3. (:) By Lord Kenyon, C. J. Id. ibid. (a) 14 & 15 Vict. c. 100, s. 24, vol. 1, p. 35. Rex v. Aylett, 1 T. R. 69. in Reg. . Kimpton, 2 Cox, C. C. 296, Parke, B., doubted whether an averment of the materiality of a thing occurring on Monday, the 29th of June, in the year 1846,' was sufficient after verdict, as the proper course is either to state the year of our Lord, or the year of the monarch's reign; and he left the prisoner to his writ of error. (b) Rex v. Aylett, 1 T. R. 70, 71. (c) Rex v. Hucks, cor. Lord Ellenbo rough, C. J., 1 Stark. R. 521 And see Rastall v. Straton, 1 H. B. 49. Woodford v. Ashley, 2 Campb. 193, and 1 Stark. Crim. Plead. 122. (d) Rex v. Waller, Mich. 6 Geo. 1, 3 Stark. Evid. 856. (e) Rex v. Coppard, Moo. & M. 118. 3 C. & P. 59, per Lord Tenterden, C. J., on the authority of Purcell v. Macnamara, 9 East, 156. (f) Rex v. Scole, Peake, N. P. R. 112, Lord Kenyon, C. J. (g) Rex v. Lincoln, MS. Bayley, J., and R. & R. 421. A trial for rape alleged to have taken place at the assizes. Imperfect statement of the authority of judges of gaol delivery. Assizes and gaol delivery incorrect. Substance and effect. An indictment for perjury alleged that at the assizes holden for the county of Stafford, on &c., at &c., before Sir J. P. &c., 'justices assigned to take the assizes in and for the said county,' one Corns was tried for a rape, and that the prisoner on that trial swore, &c. The record of the former trial stated it to have taken place at the assizes and general session of oyer and terminer.' It was objected that the indictment was bad, as an indictment for rape could not be tried under the commission of assize. Greaves, Q. C., doubted whether the indictment was necessarily bad; as the indictment for rape might have been removed by certiorari, and tried on the civil side; in which case the allegation that it was tried at the assizes might suffice. (h) It was further objected that there was a variance, as the record produced showed that the trial had taken place in the crown court, and thereupon an amendment of the indictment was prayed. Greaves, Q. C., consulted Williams, J., and they agreed that there was a variance, but that there was no power to amend the indictment under the 9 Geo. 4, c. 15, as the allegation was the statement of a fact, viz. the Court before which the trial took place, and was not the recital or setting forth' of 'any matter in writing or print,' within that Act. (i) An indictment alleged that a trial took place at a session of gaol delivery before Lord Campbell, chief justice of our lady the Queen, assigned to take pleas before the Queen herself, and Sir E. V. Williams, knight, one of the justices of our said lady the Queen of her Court of Common Pleas, assigned to deliver the said gaol of the prisoners therein. It was objected that the words 'assigned to deliver, &c.,' did not apply to Lord Campbell, but only to Mr. J. Williams; but on its appearing that the record had and others their fellow justices assigned to deliver,' &c., Talfourd, J., directed the indictment to be amended. (j) Where an indictment for perjury alleged the former trial to have taken place at the assizes and general session of the delivery of the gaol,' it was objected that this was an impossible combination of civil and criminal jurisdiction, and Talfourd, J., ordered the word assizes to be struck out of the indictment. (k) Where an indictment for perjury, committed in a written (h) See the precedents, 2 Chitt. C. L. 366, 367 (a), of indictments for perjury on the trial of causes at the assizes, which are in the form of this indictment; though, according to 3 Bl. C. 60, the commission of assize is to take the verdict of a peculiar species of jury, called an assize. Blackstone also speaks of a commission of assize being issued each circuit; but no such commission is now issued, and the cases tried on the civil side are tried under the commission of assize. And this is according to what Lord Holt said (Bullock v. Parsons, 2 Salk. 454), The authority of the judge of nisi prius is not by the distringas, but by the commission of assize; for it is the 13 Ed. 3, c. 30, which gives the trial by nisi prius, and by that statute the trial by nisi prius is given before justices of assize.' It is clear, therefore, that where perjury is committed either on a civil or criminal trial at nisi prius on circuit the trial ought to be alleged to have taken place before the justices assigned to take the assizes. C. S. G. (i) Reg. v. Fairburn, Stafford Sum. Ass. 1850. MSS. C. S. G. The prisoner was acquitted, or the points would have been reserved. It seems clear that the amendment in such a case might now be made under the 14 & 15 Vict. c. 100, s. 1, vol. 1, p. 52. (j) Reg. v. Child, 5 Cox, C. C. 197. Spr. Ass. 1851. (k) Reg. v. Child, 5 Cox, C. C. 197. The copy of the record described the court as a general session of oyer and terminer and gaol delivery, and Talfourd, J., ordered the indictment to be amended accordingly. deposition before a magistrate, in which deposition a word necessary to the sense had been omitted, set out the substance and effect of the deposition, and supplied a word which the sense required, as though it were actually in the deposition, the variance was holden to be fatal. (1) And where a count in an indictment undertakes to set out continuously the substance and effect of what the defendant swore upon his examination, it must be proved that in substance and effect he swore the whole of what is set out, though several distinct assignments of perjury are made thereon. (m) Where perjury is assigned upon several parts of an affidavit, and such parts are set out continuously, it is no variance if such parts are separated by other intervening matter, provided what intervenes does not vary the effect of what is set out. An indictment for perjury alleged to have been committed in an affidavit, set out various matters deposed to as if they had been continuous in the affidavit, but on the production of the affidavit, it appeared that the parts set out in the indictment were not continuous, but were separated by the introduction of other matter. It was contended that there was clearly a variance between the affidavit set out in the indictment and that given in evidence. The proper mode of stating it was, 'in one part whereof the defendant swore such and such things, and in another part whereof he swore certain other things.' In actions or indictments for libel such a variance would clearly be fatal. Abbott, C. J., 'In actions or indictments for libel the tenor must be set out; in indictments for perjury it is sufficient to state the substance and effect of the false oath; the variance pointed out is therefore immaterial.' (n) And the same has been held as to evidence given upon a trial. An indictment for perjury committed on the trial of an action for assault and battery, charged the defendant with having sworn that the plaintiff spit in the defendant's face before the defendant struck him, and that he, the defendant in the indictment, had not said certain words, and assigned perjury on both statements. The evidence given by the defendant on the former trial contained all the matter charged as perjury, but other matter intervened between the statement as to the spitting and that as to the words. It was objected that this was a variance, as the evidence charged as perjury in the indictment appeared to have been given continuously; but Abbott, C. J., held it was immaterial, as what intervened did not vary the effect of what was stated. (0) False state- in an affidavit vene, if such vary their effect. In an indictment for perjury committed before a select com- Mode of stat (1) Rex v. Taylor, 1 Campb. 104. Ellenborough, C. J. The deposition should have been set out literally, and the meaning explained by an innuendo. The indictment stated that the defendant weut before a justice of the peace, and swore in substance to the effect following, that is to say, &c., and part of the deposition so set forth was that a person therein named assaulted the deponent with an umbrella, and, at the same time, threatened to shoot her with a pistol; but when the deposition was produced it appeared that, after stating the assault with the umbrella, it proceeded thus, and at the same threatened to shoot,' (m) Rex v. Leefe, 2 Campb. 134. Lord (n) Rex v. Callanan, 6 B. & C. 102. ing election returns. Committee of the House of Commons. Proceedings in chancery. mittee of the House of Commons, it was averred that the election was held by virtue of a certain precept of the high sheriff, by him duly issued to the bailiff of the borough of New Malton; and it was holden that this was not matter of description, and that the production of a precept, which in fact issued to the bailiff of the borough of New Malton, though directed to the bailiff of the borough of Malton, was sufficient. But the indictment also stated that A. and B. were returned to serve as burgesses for the said borough of New Malton; and this was considered as a description of the indenture of return, in which the borough was described as the borough of Malton; and the variance was holden to be fatal. (p) But where an information for perjury committed before a select committee of the House of Commons, stated that the committee was chosen to try and determine the merits of an election, and that the committee were sworn to try the merits of the petition referred to them; it was held that the committee was well described, although by the 10 Geo. 3, c. 16, s. 13, they were to be a committee to try and determine the merits of the return or election.' (q) An indictment may be supported upon an answer in a court of equity, though the answer is not correctly entitled and the name of one of the parties be mistaken. Thus where an indictment alleged that Francis Cavendish Aberdeen and others exhibited their bill in the exchequer, &c., and, on the production of the bill, the complainants on the face of it purported to be J. C. Aberdeen, and others, it was holden that this was not a variance, and that it was competent to the prosecutor to prove, by other means than by the bill itself the allegation that Francis Cavendish Aberdeen did, in fact, exhibit his bill. (~) And it was further holden not to be a variance, although after the allegation in question, and after setting out such parts of the bill as were necessary, these words were added, as appears by the said bill, &c., filed of record;' on the ground that these words referred to the last antecedent, and could not be considered as incorporated with the prefatory allegation that Francis Cavendish Aberdeen exhibited his bill. (rr) And in an indictment for perjury committed in an answer to a bill in chancery, where the bill was stated to have been filed by A. against B. (the defendant in the indictment) and another, though in fact it was filed against B., C., and D., the variance was holden not to be fatal; the perjury being assigned on a part of the answer which was material between A. and B. (s) So where an indictment for perjury in answer to a bill in chancery described the bill as exhibited against three persons only, viz., A., B., and C., and the bill when produced appeared to be against A., B., and D.; Abbott, C. J., held that this was not a fatal variance, and that the bill produced must be considered as the same described in the indictment. If the indictment had professed to set forth the title of the bill, such variance would have been fatal, but the bill was substantially described, and that was sufficient. (t) (p) Rex v. Leefe, 2 Campb. 134. C. J. (rr) Id. ibid. (s) Rex v. Benson, 2 Campb. 508. Lord Ellenborough, C. J. (t) Rex v. Powell, R. & M. N. P. R. 101. So if an indictment for perjury state that there was a suit depend- Ecclesiastical ing in the Ecclesiastical Court between W. Peacock and R. Miles, Court. and the proceedings in that Court state that the suit was between W. Peacock and R. Miles, the elder, this is no variance. (u) Where an indictment alleged that an action was pending 'in A county the Whitechapel county court of Middlesex, holden at the court- court. house in Osborn-street, Whitechapel, in the county of Middlesex, &c., before J. M., then and there being the judge of the said court;' and it was objected that the description ought to have been the county court of Middlesex holden at Whitechapel, in the county of M.,' in pursuance of the 9 & 10 Vict. c. 95; the Court of Exchequer Chamber held that it did sufficiently appear that the court was held in pursuance of that statute; for it was alleged to be a county court, and held before a single judge. (v) It has been holden that, though there be two counts in the Issue is nomen original proceeding, an averment that an issue came on to be collectivum. tried is not a variance. (w) And where an indictment for perjury alleged that a certain issue in a plea of debt came on to be tried, and that, upon the trial of the said issue so joined between the parties, certain questions became material, &c., but by the record it appeared that three issues had been joined on three pleas; it was objected that it was impossible to know to which of them the averment of materiality referred; but Erle, J., held that 'issue' was nomen collectivum, and overruled the objection. (x) words. And a variance between the affidavit actually sworn, and in Variance in which the perjury was charged to have been committed, and the spelling affidavit stated in the indictment, by leaving out the letters in the word understood, was holden to be immaterial. (y) In a subsequent case, the defendant was tried on an indictment for perjury, committed in giving evidence as the prosecutor of an indictment against A. for an assault; and it appeared that the indictment for the assault charged that the prosecutor had received an injury, whereby his life was greatly despaired of; but that in the indictment for perjury, the indictment for the assault, being introduced in these words, which indictment was presented in manner and form following, that is to say, and then set forth at length, did not recite the above-mentioned passage correctly, but omitted the word 'despaired;' upon which the counsel for the defendant admitted that it was not necessary to have recited the indictment for the assault; but he contended that the prosecutor, by the words 'in manner and form following, that is to say, had undertaken to recite it; and that, having so done, he was bound to set it forth verbatim. But the learned judge overruled the objection, and said that the word 'tenor' had so strict and technical a meaning as to make a literal recital necessary; but that by the words in manner and form following, that is to say,' nothing more was made requisite than a substantial recital; and that the (u) Rex v. Bailey, 7 C. & P. 264, Williams, J. See Rex v. Peace, 2 B. & A. 579. (c) Lavey v. Reg. 2 Den. C. C. 504. See the indictment, 3 C. & K. 26. (w) Peake's N. P. C. 37. (z) Reg. v. Smith, 1 F. & F. 98. (y) Beech's case, Leach, 133. The реси inspection of a record is within the |