J. E. D., the Commissioners of Charitable Donations and Bequests in Ireland, and others.' It was objected that this affidavit was not one on which perjury could be assigned, as there was no such suit as that in which the Commissioner of Charitable Bequests were plaintiffs; and the affidavit was improperly entitled, as the names of all the defendants were not stated, and therefore the affidavit was not admissible in the Court of Chancery. Lord Denman, C. J., 'The courts are quite right in not receiving affidavits which are not properly entitled; but I do not think the question whether there be perjury or not depends on the rule as to entitling being strictly complied with.' (i)

Where perjury was charged to have been committed in an affidavit. of service of notice of an application for leave to issue execution against a shareholder in a joint stock company, and the affidavit was produced, but the notice was not annexed to it; Cockburn, C. J., held that the affidavit was inadmissible. (1)

On an indictment for perjury alleged to have been committed on the trial of A. Poole, for an indecent assault, it appeared that the prisoner had sworn that Poole had assaulted her at a certain time and place, but on cross-examination she had admitted that certain liberties had been taken without resistance; whereon the judge directed an acquittal. Poole and others were called to prove that no such assault could have been committed at the time alleged; and it was held that the prisoner was entitled to prove what her conduct was immediately after the alleged assault; that she had made immediate complaint; and that all the evidence which was admissible on the trial of the assault was admissible for the purpose of showing that the prisoner was not guilty. (k)

If any one distinct assignment of perjury be proved, the defendant ought to be convicted. (1)

In a case of a prosecution against T. Reilly for suborning one Macdaniel to commit perjury, it was contended on the part of the crown that the bare production of the record of Macdaniel's conviction was of itself sufficient evidence that he had, in fact, taken the false oath as alleged in the indictment. But it was insisted, for the prisoner, that the record was not of itself sufficient evidence of the fact; that the jury had a right to be satisfied that such conviction was right; that Reilly had a right to controvert the guilt of Macdaniel; and that the evidence given on Macdaniel's trial ought to be submitted to the consideration of the present jury; and the Recorder obliged the counsel for the crown to go through the whole case in the same manner as if the jury had been charged to try Macdaniel. (m)

(i) R. v. Christian, C. & M. 388. (j) R. v. Hudson, 1 F. & F. 56.

(k) R. v. Harrison, 9 Cox, C. C. 503. (1) R. v. Rhodes, 2 Lord Raym. 886, 887. 3 Stark. Evid. 860. And see Compagnon v. Martin, 2 Black. Rep. 790. R. v. Virrier, 12 Ad. & E. 317. R. v. Gardiner, ante, p. 349. In R. v. Nicholls, Gloucester Sum. Ass. 1838, perjury was alleged to have been committed by the defendant in evidence given on a trial for larceny, in which he denied having been at a particular house

on a particular occasion, and denied having had a conversation with certain persons there, and the indictment contained many distinct assignments on the going to the house, and the conversation, upon all of which evidence was given; and Patteson, J., directed the jury simply to consider whether the defendant had been to the house, and if they were satisfied that he had, to convict him, which they did. MSS. C. S. G.

(m) Reilly's case, 1 Leach, 454. See ante, p. 139.

The first count assigned perjury on an affidavit of the defendant, which alleged that the defendant did not retain or employ W. U. to act as attorney for him and J. I., or for either of them, in and about the business mentioned in the said W. U.'s bill of costs; and that he, the defendant, never retained or employed the said W. U. to act as attorney or agent for him in any cause or manner whatever. The second count assigned perjury on the statement in the affidavit as follows: that he the said defendant did not retain or employ (meaning that he the defendant did not alone, or jointly with the said J.I., retain or employ) W. U. to act as attorney for him and J. I.' The third count was the same as the first, and the fourth as the second. The plea was, that the defendant was not guilty of the premises in the indictment specified. The venire was to recognize whether the defendant be guilty of the perjury and misdemeanor aforesaid, or not guilty.' The verdict was that the defendant is guilty of the perjury and misdemeanor aforesaid,' and the judgment that the defendant be imprisoned and kept to hard labour for ten calendar months.' It was urged that the venire, the verdict and judgment, were uncertain for not showing to which of the counts they referred. That they were in the singular number, speaking of the perjury and misdemeanor aforesaid,' and that this could only mean one perjury and misdemeanor; and that as four were alleged in the indictment, it was uncertain which of them the jury was summoned to try, and of which of them. the defendant was found guilty; but the Courts of Queen's Bench and Exchequer Chamber held that 'misdemeanor' was nomen collectivum, and meant the misconduct aforesaid.' The consequence was that the venire applied to all the counts of the indictment, and that the defendant had been found guilty by the verdict on all the counts. (n)

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Where on an indictment for perjury containing several counts the judgment was that the prisoner for the offence charged upon him in and by each and every count be imprisoned for the space of eight calendar months now next ensuing; it was held by the Court of Exchequer Chamber that the judgment was good, on the ground that it meant that the prisoner was to be imprisoned for the same period of eight months for each offence. (0)

Punishment. The punishment of perjury and subornation of perjury, at common law, has been various, being anciently death; afterwards banishment, or cutting out the tongue; then forfeiture of goods. (p) At the present time it is fine and imprisonment, at the discretion of the court, (q) to which, as we have already seen, the 2 Geo. 2, c. 25, (r) superadds a power for the Court to order the

(n) Ryalls v. R., 11 Q. B. 781. R. v. Powell, 2 B. & Ad. 75, was recognized as good law by both courts.

(0) King v. R., 14 Q. B. 31. (p) 4 Black. Com. 138.

(q) 4 Black. Com. 138. R. v. Nueys and Galey, 1 Black. R. 416. R. v. Lookup, 3 Burr. 1901. In this last case the form of the sentence was that the defendant should be set in and upon the pillory at C. cross, for an hour between the hours of twelve and two, and that he should afterwards be transported to some of his Majesty's colonies or plantations in America, for the space of seven

years; and be now remanded to the custody of the marshal, to be by him kept in safe custody, in execution of the judgment aforesaid, and until he shall be transported as aforesaid.' The 1 Vict. c. 23, abolishes the punishment of the pillory in all cases, provided that nothing herein contained shall extend, or be construed to extend, in any manner to change, alter, or affect any punishment whatsoever, which may now be by law inflicted in respect of any offence except only the punishment of pillory.'

(r) Ante, p. 322. The statute does not, however, impose on the Court the necessity

offender to be sent to the house of correction for a term not exceeding seven years, or to be transported for the same period; (s) and makes it felony, without benefit of clergy, to return or escape within the time. If the prosecution proceeds upon the 5 Eliz. c. 9, that statute, as we have seen, (t) inflicts the penalty of perpetual infamy, and a fine of 407. on the suborner; and, in default of payment, imprisonment for six months, and to stand with both ears nailed to the pillory; (u) and punishes perjury itself with six months imprisonment, perpetual infamy, and a fine of 201., or to have both ears nailed to the pillory. The 3 Geo. 4, c. 114, enacts, that whenever any person shall be convicted of any of the offences hereinafter specified and set forth, that is to say (inter alia), of wilful and corrupt perjury, or of subornation of perjury, it shall and may be lawful for the Court before which any such offender shall be convicted, or which by law is authorized to pass sentence upon any such offender, to award and order (if such court shall think fit) sentence of imprisonment with hard labour, for any term not exceeding the term for which such court may now imprison for such offences, either in addition to or in lieu of any other punishment which may be inflicted on any such offenders by any law in force before the passing of this Act; and every such offender shall thereupon. suffer such sentence, in such place, and for such time as aforesaid, as such court shall think fit to direct.' See ante, p. 81.

Upon a conviction for perjury at the Chester Assizes, after the entry of the verdict the record proceeded, it is therefore ordered that the said L. K. be transported to the coast of New South Wales, or some one or other of the islands adjacent, for and during the term of seven years;' and upon a writ of error the following errors were relied upon that the judgment was erroneous in form, being, 'it is ordered;' whereas it should have been it is considered;' that it was bad in substance, being a judgment of transportation only, whereas the 2 Geo. 2, c. 25, s. 2, enacts that judgment of transportation may be pronounced, besides the punishment that might before be inflicted; that the place, to which the prisoner was to be transported ought not to have been fixed by the Court, the power of appointing that being given to the King in council by the 56 Geo. 3, c. 27; and that at all events the appointment of the place was bad, being to one or other of various places, and, therefore, uncertain. And the Court of King's Bench held that by the 2 Geo. 2, c. 25, s. 2, two things were required to be done by the Court before which the party was tried; an order for transportation was to be made, and thereupon judgment was to be given; and here the Court had made an order not followed up by a judgment. Inasmuch, therefore, as no judgment had been entered in the Court below, and the Court of King's Bench had no power to supply the deficiency, as the punishment was discretionary, that Court awarded a procedendo, commanding the Court below to proceed to give judgment on the conviction. (v)

The Court may also adjudge the defendant to give surety to keep the

of awarding any punishment previous to that of penal servitude so as to make the penal servitude an additional punishment. Castro v. R., 6 Ap. Cas. 229.

(s) Penal servitude for any term not

exceeding seven and not less than three years.

(t) Ante, p. 320.

(u) See note (q), supra.

(v) R. v. Kenworthy, 1 B. & C. 711.

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 adjudge the defendant to be further imprisoned until such security 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. (w)

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. (x) 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. (y)

The following cases may be introduced in this place.

Making a false schedule of debts. - 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.' (z) Making false answers to questions at elections. Upon an indictment against the defendant under the 2 Will. 4, c. 45, s. 58, (a) for giving a false answer to the question whether he had the same qualification to vote as that for which he was registered, it appeared that the defendant had occupied a house at the 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. (b)

(w) R. v. Dunn, 12 Q. B. 1026, decided on the authority of R. 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.

(x) Gilb. Ev. 126. Bull. N. P. 291. 4

Black. Com. 138. 2 Hawk. P. C. c. 46, s. 101.

(y) See this Act, Vol. III., Evidence. (2) R. v. Mudie, 1 M. & Rob. 128. S. C. as R. v. Moody, 5 C. & P. 23.

(a) This enactment is now repealed, see 35 & 36 Vict. c. 33, sched.

(b) R. v. Harris, 7 C. & P. 253, Lord Denman, C. J.

Upon an indictment against the defendant under the 2 Will. 4, c. 45, s. 58, (c) 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 of Mr. Kay, at the rent of 60%. per annum, but he left that house at Lady Day following, and in April commenced the occupation of another house at Turnham Green, as tenant to Mr. L., at a rent of 50l. and upwards per annum, and he continued in the occupation of this house from April till the time of the election. The defendant had been told that he had no right to vote, before so doing, but he said that he believed he had a right to vote, and that he had been so informed by the 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. (d)

The word wilfully' in an indictment on the 2 & 3 Will. 4, c. 45, s. 58 (now repealed), for giving a false answer at the poll, must 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. (j) An indictment under the same section against a

(c) The section is now repealed. As to the meaning in it of the phrase 'the same qualification,' see R. v. Bowler, C. & M. 559; R. v. Ellis, C. & M. 564.

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(d) R. v. Dodsworth, 8 C. & P. 218. Moo. & Rob. 72, Lord Denman, C. J. In R. 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 bona fide belief that he still retained his qualification, 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 occupation, 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 registration, or some of the houses of which he then possessed the freehold; in each case, however, retaining enough in point of value to confer a qualification, and intimate a doubt whether such a party could truly answer the question in the affirmative. Č. S. G.

() R. v. Ellis, supra.