averment that the court had competent authority to adminster the oath. (y)

Where it appeared, on the face of an indictment for perjury, that the statement complained of was made before a justice of the peace, in preferring a charge of larceny committed within his jurisdiction, it was held unnecessary to allege expressly that he had authority to administer the oath. (2)

An indictment for perjury, which charged the defendant with having sworn falsely in certain proceedings before justices, wherein he was examined as a witness, the allegation of materiality averred that "the said D. R. (the defendant) being so sworn as aforesaid, it then and there became material to inquire and ascertain, etc., was held bad, as not sufficiently showing that the alleged perjury was committed at the said proceedings, and that the words "upon the trial" should have been used. (a)

In 32 & 33 Vic., c. 23, s. 9, "the substance of the offence charged" means that the charge must contain such a description of the crime that the defendant may know what crime he is called upon to answer; that the jury may appear to be warranted in their conclusion of guilty or not guilty upon the premises delivered to them, and that the court may see such a definite crime that they may apply the punishment which the law prescribes. (b)

Where a prosecutor has been bound by recognizance to prosecute and give evidence against a person charged with perjury, in the evidence given by him on the trial of a certain suit, and the grand jury have found an indictment against the defendant, the court will not quash the indictment because there is a variance in the specific charge of

(y) Reg. v. Dunning, L. R 1 C. C. R. 294-5, per Channel, B.

(z) Reg. v. Callaghan, 20 U. C. Q. B. 364.

(a) Reg. v. Ross, 1 Oldright, 683; and see 32 & 33 Vic., c. 29, sch. A. Perjury, 291.

(b) Reg. v. Macdonald, 17 U. C. C. P. 638, per A. Wilson. J.; Reg. v. Horne, Cowp. 682.

perjury contained in the information and that contained in the indictment, provided the indictment sets forth the substantial charge contained in the information, so that the defendant has reasonable notice of what he has to answer. (c)

An indictment for perjury, based upon an oath alleged to have been made before the "judge of the General Sessions of the Peace in and for the said district" [of Montreal], instead of, as the fact was, before the "judge of the Sessions of the Peace in and for the city of Montreal," that being the proper title of the judge, may be amended after the plea of not guilty. (d)

Where an attempt to incite a woman to take a false oath consisted of a letter written by defendant, dated at Bradford, in the county of Simcoe, purporting but not proved to bear the Bradford post mark, and addressed to the woman at Toronto, where it was received by her: it was held that the case could be tried in York. (e)

The 32 & 33 Vic., c. 23, s. 10, contains provisions as to the form of the indictment, whether the offence has or has not been actually committed, and section 8 provides that any person accused of perjury may be tried and convicted in any district, county or place, where he is apprehended, or is in custody.

The ordinary conclusion of an indictment for perjury, “did thereby commit wilful and corrupt perjury," may be rejected as surplusage. (ƒ)

It has been held under the 14 & 15 Vic., c. 100, s. 1, (g) that the judge had power to amend an indictment for perjury, describing the justices before. whom the perjury was committed as justices for a county, where they are proved to be justices for a borough only. (h)

(c) Reg. v. Broad, 14 U. C. C. P. 168.

(d) Reg. v. Pelletier, 15 L. C. J. 146.

(e) Reg. v. Clement, 26 U. C. Q. B. 297.

(f) Reg. v. Hodgkiss, L. R. 1 C. C. R. 212; 39 L. J. (M. C.) 14 ; Ryalls . Reg., 11 Q. B. 781.

(g) See 32 & 33 Vic., c. 29, s. 71.

(h) Reg. v. Western, L. R. 1 C. C. R. 122; 37 L. J. (M. C.) 81.

By 26 Vic., c. 29, s. 7, it is enacted that witnesses before commissioners for inquiring into the existence of corrupt practices at elections shall not be excused from answering questions, on the ground that the answers thereto may criminate them, and that no statement made by any person, in answer to any question put by such commissioners, shall, except in cases of indictments for perjury, be admissible in evidence in any proceeding, civil or criminal." It was held that, "except in cases of indictments for perjury," applies only to perjury committed before the commissioners; and, therefore, on an indictment for perjury, committed on the trial of an election petition, evidence of answers to commissioners appointed to inquire into the existence of corrupt practices at the election in question is not admissible. (¿)

Some one or more of the assignments of perjury must be proved by two witnesses, or by one witness and the proof of other material and relevant facts, confirming his testimony. (j) And the assignment so proved must be upon a part of the matter sworn, which was material to the matter before the court, at the time the oath was taken. (k)

Where three witnesses proved that the prisoner had made parol statements, contradictory to the truth of the statement upon which perjury was assigned, and the evidence of several witnesses went to confirm the truth of such parol statements, but there was no direct evidence that they were true, a conviction for perjury was supported. (1)

The 32 & 33 Vic., c. 23, s. 8, applies to all cases of perjury, and not merely to "perjuries in insurance cases," which is the heading under which the sections from 4 to 12 are placed. Therefore a magistrate acting in the county of Halton, has jurisdiction to take an information against, and

(i) Reg. v. Buttle, L. R. 1 C. C. R. 248.

(j) Reg. v. Boulter, 2 Den. 396; 21 L. J. (M. C.) 57; 3 C. & K., 236; Reg. v. Webster, 1 F. & F. 515; Reg. v. Braithwaite, ibid. 638; Reg. ▼. Shaw, L. & C. 579; 34 (L. J. (M. C.) 169; Arch. Cr. Pldg 822.

(k) Ibid.; see also Reg. v. Muscot, 10 Mod. 194; Reg. v. Lee, 2 Russ. 650; Reg. v. Gardner, 8 C. & P. 737 ; Reg. v. Roberts, 2 C. & K. 607.

l) Reg. v. Hook, 4 U. C. L. J. 241; Dears. & B. 606; 27 L. J. (M. C.)

to apprehend and bind over, a person charged with perjury committed in the county of Wellington. (m)

Conspiracy.-A conspiracy is an agreement by two persons or more, to do, or cause to be done, an act prohibited by penal law, or to prevent the doing of an act ordained under legal sanction, by any means whatever, or to do, or cause to be done, an act, whether lawful or not, by means prohibited by penal law. (n)

It is otherwise defined as a crime which consists either in a combination and agreement by persons to do some illegal act, or a combination and agreement to effect a legal purpose by illegal means. (0) And a further extension of the definition is as follows: An agreement made with a fraudulent or wicked mind to do that which, if done, would give to the prisoner a right of suit, founded on fraud or on violence, exercised on or toward him, is a criminal conspiracy. (p)

Conspiracy consists not merely in the intention of two or more, but in the agreement of two or more, to do an unlawful act, or to do a lawful act by unlawful means. So long as such design rests in intention only, it is not indictable. But where two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means. (q) The conspiracy or unlawful agreement is the gist of the offence. (r)

As it is thus complete, by a mere combination of persons, to commit an illegal act, or any act whatever, by illegal means, the parties will be liable, though the conspiracy has

(m) Reg. v. Currie, 31 U. C. Q. B. 582.

(n) Reg. v. Roy, 11 L. C. J. 93, per Drummond, J.

(0) Reg. v. Vincent, 9 C. & P. 91, per Alderson, B.; Reg. v. Roy, supra, 92, per Drummond, Í.

(p) Reg. v. Aspinall, L. R. 2 Q. B. D. 48; Reg. v. Warburton, L. R. 1 C. C. R. 274.

(q) Mulcahy v. Reg. L. R. 3 E. & I. App. 306, 317, 328.

(r) Horseman v. Reg. 16 U. C. Q. B. 543; Reg. v. Seward, 1 A. & E. 706; 3 L. J. (M. C.) 103; Reg. v. Richardson, 1 M. & Rob. 402; Reg. v. Kenrick, 5 Q. B. 49; 12 L. J. (M. C.) 135; 3 Russ. Cr. 116.

not been actually carried into execution. (8) The actual execution of the conspiracy need not be alleged in the indictment. (t)

For the same reason, it is not necessary that the object should be unlawful; and in many cases an agreement to do a certain thing has been considered as the subject of an indictment for conspiracy, though the same act, if done separately by each individual, without any agreement amongst themselves, would not have been illegal. (u)

The rule is, that when two fraudulently combine, the agreement may be criminal, although, if the agreement were carried out, no crime would be committed, but a civil wrong only inflicted on the party. (v)

It is sufficient to constitute a conspiracy if two or more persons combine, by fraud and false pretences, to injure another. (w)

A fraudulent agreement, by a member of a partnership, with third persons, wrongfully to deprive his partner, by false entries and false documents, of all interest in some of the partnership property, in taking accounts for the division of the property, on the dissolution of the partnership, was held to be a conspiracy, although the offence was completed before the passing of the corresponding English section of the 32 & 33 Vic., c. 21, s. 38 (by which a partner can be criminally convicted for feloniously stealing the partnership property); for the object was to commit a civil wrong by fraud and false pretences (2)

It appears that an indictment lies not only wherever a conspiracy is entered into for a corrupt or illegal purpose, but also where the conspiracy is to effect a legal purpose by

(8) Reg. v. Roy, 11 L. C. J. 92, per Drummond, J.

(t) Ibid.

(u) Rex v. Mawbey, 6 T. R. 636, per Grose, J.; 3 Russ. Cr. 116.

(v) Reg. v. Warburton, L. R. 1 C. C. R. 276, per Cockburn, C. J.; 40 L. J. (M. C.) 22; Reg. v. Aspinall, L. R. 2 Q. B. D. 48.

(w) Ibid. 276, per Cockburn, C. J.

(x) Reg. v. Warburton, L. R. 1 C. C. R. 274.