considered as a fatal variance; though it was holden that the averment was proved by its appearing that he was previously sworn in the ordinary mode. (t) An indictment for perjury in a cause tried at the assizes was holden good, although it alleged the oath to have been taken before one only of the judges in the commission, and the nisi prius record imported that the trial was before the two judges of assize. (u) An indictment at common law, which charged that the de- Wilfully and fendant, falsely, maliciously, wickedly, and corruptly swore, &c., corruptly. was holden sufficiently to imply that the offence was committed wilfully; (v) but it was considered at the same time that, in an indictment on the 5 Eliz. c. 9, the offence must be laid expressly to have been wilfully committed. (w) The indictment should aver that the defendant wilfully and corruptly' swore, and every count should expressly state that the defendant was sworn, and the fact of his having been sworn cannot be taken by intendment. The first count stated that the defendant on the trial of an indictment against J. H., intending to injure J. H., and to cause him to be wrongly convicted, appeared as a witness and was sworn, and then and there falsely and maliciously gave false testimony against J. H., by then and there deposing and giving evidence,' &c. The fifth count, the only one that differed materially from the first, alleged that by means of the false testimony in the first count mentioned, J. H. was found guilty; that a rule nisi for a new trial was granted; that the defendant, intending to hinder the said rule from being made absolute, came before a commissioner and was sworn, and being so sworn, wickedly, wilfully, and corruptly did depose, swear, and make affidavit in writing, in substance that the evidence which he, J. S., had given on the said trial was true; whereas the evidence which the said J. S. had given on the said trial was not true, but was false in the particulars in the said first count of this inquisition assigned and set forth. The defendant having been convicted, a rule was obtained for arresting the judgment, and after argument Abbott, C. J., delivered the judgment of the Court as follows:-'I am of opinion that this rule must be made absolute. As to the first class of counts the objection is that they do not charge that the defendant swore wilfully or corruptly. Every definition of perjury is swearing wilfully and corruptly that which is false. Whether the word maliciously might supply the place of either wilfully or corruptly, it is not (1) Id. ibid. (u) Rex v. Alford, 1 Leach, 150. MS. Bayley, J. Eyre, B., doubted on the trial whether one commissioner of assize alone had competent authority to administer the oath, and conceived the indictment ought to have alleged the oath to have been taken before both the judges in the commission, but on a case reserved the judges were unanimous that the indictment was right. See this case, ante, p. 44. But as to a record in the Crown Court, see Rex v. Lincoln, ante, p. 37. In Reg. v. Deman, 2 Ld. Raym. 1221, an exception was taken to an indictment; that it stated the trial at which the oath (v) As to the offence being wilful, see (w) Cox's case, 1 Leach, 71. The indictment should defendant state that the swore wilfully and corruptly, and every count should aver that the defendant was sworn. 'Feloniously' swore is bad, That the person had authority to administer the oath. Is 'sufficient' equivalent to competent authority?' A judge of one of the superior courts at necessary to determine, for neither of those words is found in the Where an indictment for perjury alleged that the prisoner 'feloniously' swore to the matter on which the perjury was assigned instead of falsely,' it was held that the indictment was bad in substance, and that the words 'corruptly, knowingly, wilfully, and maliciously,' did not supply the defect a man might swear 'corruptly' under some corrupt influence, and yet swear the truth; so with respect to the word 'knowingly;' and he might swear wilfully and maliciously' to gratify some malicious feeling, but yet it might not be 'falsely.' Nor did the conclusion that the prisoner in manner and form aforesaid did commit wilful and corrupt perjury' cure the defect; for the meaning of that was, that the prisoner committed the offence in the manner stated, and, that statement being defective, the indictment was bad. (z) It must appear or (a) be alleged in the indictment that the person by whom the oath was administered had competent power to administer it. Thus upon an indictment for perjury before a justice in swearing that I. S. had sworn twelve oaths, where the charge as stated did not import that the oaths were sworn in the county for which the justice acted, Eyre, J., arrested the judgment; because as the charge did not so import, the justice had no jurisdiction to administer the oath in question to the defendant. (b) Where an indictment for perjury alleged that two judges had 'sufficient authority' to administer the oath, it was doubted whether it was sufficient, as the 23 Geo. 2, c. 11, s. 1, has only 'competent authority.' (c) An indictment for perjury alleged that W. U. had done business as an attorney for the defendant and J. I. on the retainer of (x) Supra, note (w). (y) Rex v. Stevens, 5 B. & C. 246. The 5 Eliz. c. 9, s. 6. ante, p. 24, uses both the words 'wilfully and corruptly,' and therefore it should seem that both these words must be used in an indictment on that statute. C. S. G. (2) Reg. v. Oxley, 3 C. & K. 317. Cresswell, J., after consulting Alderson, B. (a) See R. v. Dunning, L. R. 1 C. C. R. 290. (b) Rex v. Wood, Exeter, 1723. MS. Bayley, J. (c) Reg. v. Child, 5 Cox, C. C. 197. Talfourd, J., declined to stop the case, but would have reserved the point had not the prisoner been acquitted. This enactment is now repealed, see ante, p. 35, and see the present enactment 14 & 15 Vict. c. 100, s. 20, ante, p. 35. costs. It is a condition a summons precedent to the legality of calling on a client to show cause why an attorney's bill should not be referred to taxation, that the judge should ascertain whether there had been application by a previous that may be indictment for the defendant, and that afterwards, to wit, on the 7th of August, Westminster 1844, the said W. U. delivered a bill of costs to the defendant and has general jurisdiction by J. I., and that no application was made to the court, in which the statute as to said business was done, by the defendant or J. I. within one month the taxation of after the delivery of the bill, nor did the said court or any judge not, therefore, within one month next after the delivery of the said bill refer the a said bill to taxation; and that after the expiration of one month, to wit, on the 25th of April, 1845, W. U. applied to one of the judges of the said court to refer the said bill to be taxed, and thereupon on the said 25th day of April the said judge issued a summons, requiring the defendant and J. I. to show cause why the said bill should not be referred to the master to be taxed; and that before showing cause the defendant went before a commissioner and made an affidavit denying the retainer of the said W. U. It was objected that 'month' in the indictment meant lunar month; and as the jurisdiction to tax the bill on the application of the attorney did not arise under the 6 & 7 Vict. c. 73, ss. 37 & 48, until after one calendar month after the delivery of the bill, the indictment did not show jurisdiction to issue the summons. But the the party Court of Exchequer Chamber held that the objection ought not chargeable; to prevail; and Parke, B., in giving the judgment, said, Al- ascertained though the word "month" would, in our opinion, if unexplained, afterwards. If signify lunar month, enough is stated to show the judge's jurisdic- therefore an tion; for, as the dates are material, they may be taken without perjury, comthe videlicet, and taken to be true. But I do not think the indictment would be bad even if it contained nothing to show that a calendar month had elapsed before the summons issued; for the judge had general jurisdiction, and must be taken to have had jurisdiction in the particular case unless the contrary appear. I think in such a case the jurisdiction would be intended but it is not necessary to decide the point.' (d) The third and fourth counts of the same indictment omitted to allege that no application had been made to the court or a judge to tax the bill by the defendant or J. I., and it was urged that these counts were bad by reason of such omission, as by sec. 37 of the 6 & 7 Vict. c. 73, the jurisdiction of the courts to refer such a bill to taxation upon the application of the attorney depended on the fact that no application had been made within the month by the party chargeable; but the Court of Queen's Bench held that the judge had jurisdiction, after the expiration of the month which was alleged in the counts, to issue a summons at the instance of the attorney, calling on the party chargeable to show cause why the bill should not be taxed, although it might be true that if it had appeared on showing cause that a previous application within the month had been made by the party chargeable, the judge might not have had jurisdiction to make an order for taxation. Therefore the affidavit of the defendant, made after such summons, was made in the course of a judicial proceeding. (e) mitted in an affidavit made in answer to such a summons, merely states that the judge had issued the summons, that would be sufficient. Where a statute requires an act to be done by justices of the Perjury at a peace acting for a particular division in petty sessions, an indict (d) Ryalls v. The Queen, 11 Q. B. 178. The Court of Queen's Bench had held that as all the counts referred to the Act of Parliament, the word 'month' in the VOL. III. indictment must be construed according petty sessions of justices acting for a particular division of a county. Indictment held bad for ment for perjury committed before two such justices must allege that they were acting for such division, but need not aver that they were assembled in petty sessions. (ƒ) Where an indictment for perjury stated that the prisoner, maliciously intending to subject W. Mortiboy to the punishments of felony and larceny, went before J. C. and H. H., two justices of a charge made the peace, and was sworn (J. C. and H. H. having competent not showing that there was before a justice. An indictment came before a gave him to be venereal affair with a donkey, shows sufficiently a proceeding power, &c.) and deposed in substance that on Wednesday last he (the prisoner) was in W. M.'s Peg Alley, and that he (the prisoner) put his hand into his watch fob, and took out a 57. note to make a bet with W. M., and put it into his breeches pocket. That W. M. collared him, and knocked him down, and put his knee on him, and then put his hand into his (the prisoner's) pocket, and took the said 57. note, &c. It was submitted that the indictment was bad, as it did not show that there was any proceeding pending before the magistrate, or that this was a deposition on any charge of felony. Coleridge, J., 'There might be cases of an affidavit, where there was no charge, and no prosecution, and, indeed, no cause in hand. It might have been averred that the defendant made a charge, and that in support of that charge the deposition was made. If the defendant had merely come before the magistrates to swear this, without more, it would not be perjury. I think that the indictment is not sufficient.' (g) The first count stated that the prisoner, meaning to subject C. F. E. to the punishment provided for persons guilty of felony, &c., went and was sworn before a justice of the peace for the county having competent authority to administer the oath, and being so sworn then upon a certain information and examination, entitled 'County of Oxford to wit: the information and examination of R. G. taken upon oath before me, &c.,' falsely, &c., did depose, &c. The whole of the information was then set out; it contained the following passage :-'I then went and got over Mrs. Calcut's wall into the close, and went and looked over the wall between her close and Mr. E.'s ox-pens. I then saw the donkey standing with its side towards and near to the manger of the second pen, with her head towards Mrs. Calcut's close. Mr. (f) Reg. v. Rawlings, 8 C. & P. 439, Park, J. A. J., and Patteson, J., after time taken to consider the points. (g) Reg. v. Pearson, 8 C. & P. 119. When the objection was first made, Coleridge, J., said, 'This might have been the original information. Might it not be that this statement to the magistrates was the charge?' And it is conceived that this was the correct view of the case. In cases of felony and misdemeanor it is a very common practice for the party complaining to state the facts to the magistrate's clerk, who takes them down in the shape of an information; such information is then taken to the magistrate, and the complainant sworn to the truth of it: in such cases it is conceived the making the charge before the magistrate, and the making the deposition, is one and the same thing; it could not, therefore, be averred and proved that the party made the charge, and in support of it made the deposition. See Caudle v. Seymour, 1 Q. B. 889, where some strong observations were made against the propriety of such a practice. It may, however, be questionable whether such a mode of taking the information would afford any ground of defence to the party who was sworn to its truth. It may be observed, also, that although it may admit of doubt whether this deposition disclosed a felony, yet as it clearly showed an assault, the magistrate had jurisdiction to administer an oath. In Reg. v. Bradley, Stafford Spr. Ass. 1844. MSS. C. S. G. Coleridge, J., said, that in the discussion of Reg. v. Gardiner, infra, considerable doubts were entertained among the judges whether Reg. v. Pearson was rightly decided. See R. v. Crawley, 12 Cox, C. C. 162; R. v. Lewis, 12 Cox, C. C. 163. before a C. E. was standing behind her. I saw that he had the flap of his I saw the corner of the make the false magistrate to trowsers unbuttoned and hanging down. inside of it; he was rather on the move; he appeared to be on swearing the donkey (meaning that he appeared to the said R. G. to be in perjury. the actual commission of that detestable crime, &c.). He remained in that position about five minutes, when the donkey kicked Mr. C. E.'s leg, upon which he moved aside, turning his back rather more towards me than it had been, and stooped down to rub his leg; he then lifted himself up again, and turned round with his face towards me. I then saw his private parts exposed: I saw him tuck up his shirt and button up his trowsers: the upper part of them as well as the flap had been unbuttoned.' This count contained no averment as to the materiality of any of the matters deposed to. It contained several assignments of perjury. Those on which the prisoner was found guilty were as follows:'Whereas in fact the said C. F. E. then and there had not the flap of his trowsers unbuttoned or hanging down. And whereas the said C. F. E. had not then and there, or at any other time or place whilst standing behind the said donkey, or any other donkey, the flap of his trowsers unbuttoned, and hanging down, nor had the trowsers the said C. F. E. then wore any flap whatsoever. And whereas the said C. F. E. did not appear to the said R. G. to be, nor was he, then and there, or at any other time, or at any other place, in the actual commission of that detestable crime, &c., with the female donkey aforesaid, or with any other animal, or in any other manner whatsoever. And whereas the said C. F. E. did not remain in that situation for about five minutes, nor did the said donkey kick the said C. F. E.'s leg, nor did, &c., &c. Here followed a number of other averments, which were not proved for want of two witnesses. The third count was the same as the first, except that it stated the prisoner's intention to be, to subject C. F. E. to the punishment inflicted on persons guilty of misdemeanors, and the innuendo was, that C. F. E. was attempting to commit the offence. The seventh count stated, that the prisoner, intending to aggrieve C. F. E., 'came before Mr. Rawlinson, and was sworn (he having authority), and falsely, &c., did depose, swear, charge, and give the said justice to be informed that the said C. F. E. upon, &c., had a venereal affair with a certain animal called a donkey, and feloniously and against the order of nature did commit and perpetrate that detestable and abominable crime, &c., with the said donkey. And further (it being then and there material to the inquiry into the said charge and information to know the state of the said C. F. E.'s dress at the time the alleged offence was so charged to have been committed as aforesaid) that he, the said R. G., then and there saw that the said C. F. E. then and there had the flap of his trowsers unbuttoned and hanging down, and that he, the said R. G., then and there saw the inside of the said flap; whereas the said R. G. did not then and there, or at any time, or at any place, see the said C. F. E. at any time in the act of having a venereal affair with a donkey, or with any other animal whatsoever, nor did the said C. F. E. then, or at any time, or at any place, or in any manner commit, nor was the said C. F. E. at any time, or at any place, or in any manner in the act of committing that detestable and abominable |