answer in before the passing of the Judicature Acts, the bill must be proved having taken in the usual way; the proof of the defendant's signature, and the oath in an that of the master before whom the answer purports to be sworn, chancery. is evidence of the defendant's having sworn to the truth of the contents, without calling the person who wrote the jurat; or further, proving the identity of the defendant as being the very same person who had signed the answer. (c) But unless there be such proof of the defendant's signature, or some other sufficient proof to identify him as the person by whom the oath was taken, no return of commissioners, or of a master in chancery, will be sufficient. (d) In a case upon the 31 Geo. 2, c. 10, s. 24, (for taking a false oath to obtain administration to a seaman's effects, in order to receive his wages), it was holden necessary to prove, directly and positively, that it was the prisoner who took the oath. (e) An indictment for perjury alleged that the prisoner, being a trader within the meaning of the statutes in force relating to bankrupts, but owing debts amounting in the whole to less than 300l., and having resided for six calendar months next immediately preceding the time of filing his petition within, &c.,' did present his petition to the Insolvent Court in Portugal Street; and the only evidence given in support of these allegations was the prisoner's petition filed in that court, which alleged the very same matters as facts upon the truth of which, with others, the prisoner rested his application to the insolvent court; and, on a case reserved, it was held that, as against the prisoner, the statements in the petition, uncontradicted by any conflicting testimony, were abundant evidence to prove those allegations in the indictment. (f) Proof upon obtaining ada seaman's ministration of effects. The statements of facts vent's petition are evidence against him of in an insol those facts. indictment for only and the appointment proof that the An indictment for perjury alleged that W. Turner made his will Where the and appointed J. H. Turner, W. B. Wood, and W. T. Abud the ex- matters in an ecutors thereof, and to prove this averment the probate of the will perjury relate was tendered; it was objected that, as the will applied both to to personalty lands and personalty, the original will must be produced and proved. Erle, J., A will may in law have two operations-the of executors, one, as to realty, respecting which the ecclesiastical courts have no the probate is jurisdiction; the other, as to personalty and executors, in which the proper the ecclesiastical courts have sole jurisdiction, and therefore, with testator made respect to the latter, the evidence of the attesting witness is not a will. necessary here. If all the matters in this indictment relate to personalty and executors, the probate is the proper proof; but if there is any question here raised as to whether the testator devised lands, the original will must be produced, and one of the attesting witnesses called. But if it is only to be shown that the deceased made a will, and left certain persons executors of it, I shall hold the production of the probate to be the proper proof.' (g) On an indictment for perjury in a deposition sworn by the prisoner as a proof of a debt against a bankrupt, it appeared that the proof was placed according to the practice on a file of the proceed (c) Rex r. Benson, 2 Campb. 508. Rex v. Morris, 2 Burr. 1189. Î Leach, 50. The reason why the Court of Chancery made a general order that all defendants should sign their answers was with a view to the more easy proof of perjury in an swers. 2 Burr. 1189. See Reg. v. Tur- (d) Id. ibid. (e) Brady's case, 1 Leach, 327. After proof of the loss of a deposition in bankruptcy, dence is ad missible. secondary evi- ings, where it remained for several months, and the prisoner having demanded an inspection of the file, it was handed to him by the usher, and shortly afterwards returned to the usher, who restored it to the customary place of deposit without examination. It was afterwards discovered that the proof had disappeared, and all searches for it had proved ineffectual; and an office copy under the seal of the court was tendered in evidence. It was objected, on the authority of Taylor on evidence, (h) that a copy could not be received in evidence in a case of perjury; but Hill, J., held that, on proof that the original had been lost or destroyed, secondary evidence was admissible. () Proof of materiality. Evidence of a deceased witness. Evidence that been entered up. In order to show the materiality of the deposition or evidence of the defendant, it is essential, where perjury is assigned in an answer to a bill of equity, filed before the passing of the Judicature Act, to produce and prove the bill, (j) or if the assignment is on an affidavit, to produce and prove the previous proceedings, such as the rule nisi of the court, in answer to which the affidavit in question has been made. (k) If the assignment be on evidence on the trial of a cause, in addition to the production of the record () the previous evidence and state of the cause should be proved, or at least so much of it as shows that the matter sworn was material. So also such prefatory circumstances and innuendos as are averred upon the face of the indictment for the same purpose must be proved (m) It is reported to have been held upon the trial of an information for perjury, alleged to have been committed on the trial of an ejectment, that in order to prove the perjury a witness might prove what a witness, who was since dead, swore on the trial of the ejectment. (n) It has been observed that this ruling seems to be utterly inconsistent with the principles now established. (o) Some counts in an indictment for perjury committed in an affijudgment had davit to oppose a summons to set aside a judgment obtained by the prisoner alleged that the prisoner 'caused to be entered up final judgment in the said action;' and a clerk from the judgment office produced from that office a book in which judgments are entered up, and stated that interlocutory judgment was signed in the action, and that final judgment was afterwards entered up; it was objected that the roll or an examined copy of it ought to have been produced. It was answered that the 'entering up of final judgment always takes place before there is any roll carried in, and is the making of the entry in the book produced; (p) and Lord Denman, C. J., held the proof sufficient. (q) (h) S. 1379, p. 1232, third edit. (k) 3 Stark. Evid. 859. (1) Rex v. Iles, Hard. 118. Bull. N. P. 243. 2 Hawk. P. C. c. 46, s. 57, 3 Stark. Evid. 855. (m) 3 Stark. Evid. 859. (n) Rex v. Buckworth, T. Raym. 170, per Twisden, J., and Morton, J., against Keeling, C. J., who said it was not to be allowed, because between other parties. (0) 3 Stark. Evid. 861, where the case is erroneously cited as Taylor v. Brown. The report does not show for what precise purpose the evidence was adduced; if for the purpose of proving what passed on the former trial in order to show that the matter was material, qu. whether it was not admissible. C. S. G. (p) Fisher v. Dudding, 9 Dowl. P. C. 872. (1) Reg. v. Gordon, C. & M. 410. The prisoner was convicted, and no motion made on the point, as there were other counts which did not allege the entering up of the judgment. dict at nisi Where, in order to prove an allegation in an indictment for Officer's miperjury that a cause came on to be tried, the nisi prius record was nute of a verproduced, and it appeared that no postea had been indorsed upon prius. it, but there was a minute, in the handwriting of the officer, indorsed upon the jury panel which was affixed to it, in these words, 'Verdict for plaintiff, damages 18.' Lord Tenterden, C. J., after consulting the other judges of the Court of King's Bench, held that the officer's minute was sufficient evidence that the trial took place. (r) to be tried. Where an indictment for perjury alleged that certain issues Evidence that came on to be tried and were tried before the sheriffs of London issues came on upon the execution of a writ of trial, and the postea being produced, the verdict appeared to have been taken on one of two issues, without any statement as to the event of the other, the Court of Queen's Bench held that the allegation was proved by the record and postea taken together. It appeared that the jury was summoned and sworn to try the issues' and if on one of the issues the jury had been withdrawn, yet both would have come on for trial and have been tried. (s) nonsuited An indictment alleged that a certain action came on to be tried An averment in due form of law, and was duly tried by a jury of the county that an action was tried, held in that behalf duly sworn. The record stated that the jury were to be proved, sworn, and after evidence given withdrew to consider their verdict, though the and after they had agreed returned to the bar to give their ver- plaintiff was dict, whereupon the plaintiff being called, comes not, &c.' It was when the verobjected that the trial was not complete, as the jury had not given dict was about any verdict. It was answered that, as far as the jury were con- to be given. cerned, the cause was by them duly tried. They were sworn to 'truly try and a true verdict give,' and they might try and yet not give a verdict; and the objection was overruled. (t) An indictment for perjury averred that there was an action A notice of pending between W. C. and B. and the defendant. The writ set-off is not was not produced, but to show the existence of the action, the evidence that attorney for the plaintiffs in the action produced a notice of set-off entitled in the cause, which he had received from the attornies for the defendant in the action; it was objected that the notice of setoff was inadmissible, as at most it was only secondary evidence; and the objection was held good. (u) On a trial for perjury at the Central Criminal Court the caption of the same court of oyer and terminer or gaol delivery at which the indictment for perjury is preferred, the former indictment with the indorsement of the prisoner's plea, the verdict, and sentence of the court thereon, together with the minutes of the trial, made by the officer of the court, are sufficient evidence of the former trial, without a regular record or any certificate thereof. (v) An indictment alleged that there being a certain plaint lodged against the prisoner in a county court, the same came on to be (r) Rex v. Brown, M. & M. 315. 3 C. & P. 572. (s) Reg. v. Schlesinger, 10 Q. B. 670. (t) Reg. v. Bray, 9 Cox, C. C. 218. The Recorder, after consulting Bramwell, B., and Byles, J. (u) Rex v. Stoveld, 6 C. & P. 489. Lord Denman, C. J. (v) Reg. v. Newman, 2 Den. C. C. 300. The trial for perjury was in December, 1851; the trial on which the perjury was committed was at a session held on the 12th of May, 1851, and the caption was dated on that day. an action was pending. Proof of a trial at the Central Criminal Court. Evidence of a trial and ap pearance in a county court. Proof of a In a bastardy case the summons must be proved; it is not sufficient minutes of the to prove the proceedings before the justices. tried, and that the prisoner was duly sworn, &c. It was proved by the clerk of the court that such a plaint had been filed, (w) and it was proposed to give parol evidence of the proceedings on the trial; but it appearing that there was a minute book wherein were entered the plaints, the appearance of the parties and the result of the trial, it was objected that that book ought to be produced, in order to prove the plaint and the appearance of the prisoner. That the evidence of the prisoner could not be proved by parol if it was taken down in the book. And lastly, the summons must be proved in order to give the court jurisdiction. Maule, J., 'I think the want of the proof of the summons is answered by the fact of the prisoner's appearance, which may be proved by parol. That is sufficient to carry the case on; but, if it should be necessary, I will reserve the other points;' and the evidence was received. (x) Where an indictment is preferred for perjury committed on the hearing of a plaint in the county court, the only proper course to prove the proceedings in that court is to produce the clerk's book or a copy having the seal of the court, and purporting to be signed and certified as a true copy by the clerk of the court under the 9 & 10 Vict. c. 95, s. 111. (y) An indictment for perjury alleged that a certain suit was instituted in the Prerogative Court of Canterbury, in which M. S. Merryweather was plaintiff, and J. Turner, J. H. Turner, W. B. Wood, and W. T. Abud, defendants; and in order to prove this allegation, an officer from the registrar's office in the Prerogative Court produced from the office an original allegation put in on behalf of M. S. Merryweather, and the original allegation put in on behalf of the executors in answer to it, and proved the signatures of two advocates, who acted as advocates in the court, to each of the allegations; and Erle, J., held that this was sufficient proof of the suit having been instituted as alleged. (z) An indictment alleged that the prisoner appeared at a petty sessions in pursuance of a summons requiring him to answer a complaint of A. Jones touching a bastard child of which she alleged him to be the father, and alleged that he committed perjury on the hearing of that complaint. The magistrate's clerk produced a book containing the minutes made by him on the occasion, headed Ann Jones v. Richard Newall, affiliation,' and then the evidence was set out. There was no other evidence of the proceedings before the justices. It was objected that the summons ought to have been produced, or notice to produce it served on the prisoner. Wightman, J., The 7 & 8 Vict. c. 101, provides that "upon complaint by the mother, the justices shall have power to summon the putative father, and upon the appearance of the person so summoned, or upon proof of the service of the summons, to hear and adjudicate upon the case." A summons is, therefore, necessary to give the magistrate jurisdiction; and to (w) It is not stated how this was proved. (x) Reg. v. Ward, 3 Cox, C. C. 279. It is not stated how the evidence given by the prisoner was proved. He was convicted. (y) Reg. v. Rowland, 1 F. & F. 72. Bramwell, B., who said he had ruled in the same way previously, and held that the proceedings on hearing the plaint could not be proved by the assistant clerk of the court. (z) Reg. v. Turner, 5 C. & K. 732. prove that they had jurisdiction in this case you must prove that the prisoner was duly summoned, either by production of the summons, or by secondary evidence after notice to the prisoner to produce it. The minutes of examination in this case are no more than the minutes of a shorthand writer, and only answer the purpose of refreshing the memory of the witness. (a) Upon an indictment for perjury committed at the hearing of an information in bastardy, laid under the 7 & 8 Vict. c. 101, which indictment alleged the application for a summons, the issuing thereof, and the hearing upon it, proof of the information, of the appearance of the defendant, of the hearing, of evidence being given on both sides, and of no objection being made of the want of a summons, is sufficient to shew jurisdiction in the justices who heard the information, without proof of the summons which issued upon that information; and a conviction for perjury upon the above indictment was upheld. (b) Where, upon an indictment for perjury alleged to have been Proof of the committed on the trial of an appeal against an order of removal, trial of an the sessions book was produced by the clerk of the peace in order appeal. to prove the trial of the appeal, and the clerk of the peace stated that he would, if applied to, have drawn up a record of the trial of the appeal on parchment; it was held that the sessions book was not sufficient evidence of the trial of the appeal. (c) But it has since been held that the sessions book containing the orders and other proceedings of the court made up and recorded after each sessions, with an entry containing the style and the date of the sessions, and the name of the justices in the usual form of a caption, no other record being kept, is good evidence of the trial of an appeal against an order of removal. (d) evidence of Where perjury was assigned on the answer to a bill in chancery Amended bill as it originally stood, which bill had afterwards been amended, in chancery and the bill was produced by a clerk from the six clerks' office, the original who stated that it was an amended bill, but that it was the original bill. record which was filed in the six clerks' office in the first instance, but altered by the amendments, which were made by altering the original record, and that these alterations were all made by a clerk in the six clerks' office, whose handwriting he knew, and that that person wrote the word amendment' against each alteration; but none of the alterations related to the particular parts of the answer upon which the perjury was assigned. It was contended that this was not sufficient evidence of what the bill was before the alterations, and that the person who made the alterations ought to be called. But Lord Tenterden, C. J., was of opinion that the amendments were sufficiently proved, and also thought them not material to the case. (e) In one case, upon an indictment for perjury, a copy of a bill A copy of a in chancery was rejected which contained many abbreviations, (f) bill in chan (a) Reg. v. Newell, 6 Cox, C. C. 21, A.D. 1852. Three duplicate orders had been made, but none of them was produced, or notice to produce any of them given. See the subsequent cases of Reg. r. Berry, ante, p. 17, and Reg. v. Simmonds, ante, p. 9; see Reg. v. Whybrow, 8 Cox, C. C. 438; Reg. v. Hurrell, 3 F. & F. 271. R. v. Smith, infra. (b) R. v. Smith, 37 L. J. M. C. 6; see R. v. Carr, 10 Cox, C. C. C. 564. (c) Rex v. Ward, 6 C. & P. 366, Park, J. A. J. (d) Reg. v. Yeoveley, 8 A. & E. 806, cery contain |