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the Queen, before Thomas Challis, Esq., then being one of the sheriffs of the city of London, in his compter, situate in the parish of St. Giles' Without Cripplegate, in the ward of Cripplegate Without, in the same city, and within the jurisdiction of the same Court, according to the custom of the said city, for a cause of action personal arising within the jurisdiction of the said court; and such proceedings were thereupon had, that afterwards, to wit, on the 5th day of December, in the year of our Lord 1846, at the said court then held before the said sheriff, at the Guildhall of the said city of London, and within the said city, and within the jurisdiction of the said Court, the said William Townley, by the consideration and judgment of the said court, recovered against the now plaintiff, as well a certain debt of 197. 19s. as also 31. 12s. 6d. for his costs of suit, as by the record and proceedings thereof still remaining in the said court appears, and after the passing of an act of Parliament, passed in the 9th year of the reign of our lady the now Queen, entitled "An Act for the better securing the payment of Small Debts," and before the said time, when, &c. to wit, on the 5th of December, in the year last aforesaid, the plaintiff then being indebted to the said William Townley in a sum not exceeding 201. besides costs of suit by force of the said judgment, to wit, the sum of 197. 19s. the said William Townley made application by petition and note in writing, according to the form in schedule (B.) to the said act of Parliament annexed, to the said court, the same being an inferior Court of Record for the recovery of debts in and for the city of London, and then being held at the Guildhall aforesaid, in the said city, and within the jurisdiction of the said court, and the plaintiff then residing within the jurisdiction of the said court, to wit, within the city of London, and the said court then having a judge, who was a barrister-at-law (that is to say), Edward Bullock, Esq., barrister-at-law, then being the judge of the said court, by which said petition and note in writing the said William Townley requested the said court to summon the plaintiff to answer touching the debt due to the said William Townley by the judgment of the said court, on his, the said William Townley's behalf; and thereupon the said court afterwards, to wit, on the 7th of December, 1846, upon the said application of the said William Townley, granted to the said William Townley a summons according to the form in schedule (A.) unto the said act of Parliament annexed, by which said summons the plaintiff was required to appear at the Sheriff's Court, London (being the said court), to be holden at the Guildhall, &c., on, &c., to answer such questions as might be put to him touching the not having paid to the said William Townley the sum of 237. 11s. 6d. (being the amount of the said debt and costs recovered by the said judgment), &c. The plea then went on to state that the plaintiff was duly served with the said summons, and that he appeared thereto at the said court, and that he was duly examined on oath, as required by the statute, and that the said court thereupon made an order that the plaintiff should pay the said debt and costs by instalments of 21. a month, of which order notice was given to the plaintiff, who was also duly served with a copy thereof, and the original order was at the same time shown to him. That the plaintiff did not pay the said instalments, but made default in the payment thereof, and thereupon it being duly made to appear, and it being proved to the said court that the plaintiff had had notice of the order and been served with a copy, and shown the original, and had not paid the said instalments, the said court, so holden as aforesaid, before the said Edward Bullock, so being such judge of the said court and such barrister-at-law as aforesaid, before the said time when, &c., to wit, on the day and year last aforesaid, at London aforesaid, and within the jurisdiction of the said court, duly and according to the form of the said statute, ordered that the

plaintiff should be committed for forty days to Her Majesty's debtors' prison for London and Middlesex, in the city of London, being the common gaol wherein debtors under judgment, and in execution of the Superior Courts of Justice, might be, and were usually confined, within the city of London, being the city in which the plaintiff was then resident, and thereupon the said Edward Bullock, so being, and as such, judge of the said court, and barrister-at-law, at the request of the defendant, then being the attorney of and for the said William Townley, and as such attorney, and acting upon the retainer, and at the request of the said William Townley, duly, and according to the form of the statute in such case made and provided, then and there made his warrant in writing, under his hand and seal directed," &c. The plea then set out the warrant, and averred it to have been delivered by the defendant, as such attorney of William Townley, to the serjeant-at-mace, to be executed, by virtue of which warrant, and at the said request of the defendant as such attorney, the plaintiff was taken and arrested, and conveyed to the debtors' prison, and detained therein for thirty-nine days, the said instalments remaining unpaid.

Replication to the second plea.-"That the said Edward Bullock did not order that the plaintiff should be committed for forty days to Her Majesty's Debtors' Prison for London and Middlesex, in the city of London, in manner and form as in the second plea alleged." Issue thereon.

The issues were tried before Wilde, C. J., now the Lord' Chancellor, and the defendant's counsel tendered a bill of exceptions to the ruling of the learned judge, and a writ of error was thereupon brought, and the facts were set out upon the Record in Error. In the first place, it appeared that Lloyd Simpson was called as a witness, and he proved that he was serjeant-at-mace at the Sheriff's Court, London, and that the warrant of commitment against Kinning was delivered to him; and then it was also proved that the order was made to pay; "that the said Thomas Kinning should pay the said debt and costs aforesaid to the said William Townley, in manner following, that is to say, the sum of 21. thereof on the 12th of January then next," and the rest by instalments: "that he, the witness, did not know from whom he received the warrant that he tried to find the said Thomas Kinning, and could not, that the witness knew a person named Beard, a clerk of the defendant (Buchanan), who attended to the defendant's business in court, and had done so for years: that the said Beard likewise attended to the department of business concerning warrants in the defendant's office; that whenever the witness applied at the defendant's office about such things, he, the witness, was referred to Beard upon them generally; that Beard attended to the business of the defendant relative to the Small Debts Act; that after he, the witness, had searched for the plaintiff two or three days, he, the witness, saw Beard, who ordered him not to execute the warrant: that he, the witness, had acted under Beard's directions on a former occasion that afterwards, on the 24th of April, he saw Beard at the defendant's office, and that Beard then and there told the witness to execute the warrant against the plaintiff as soon as he, the witness, could; in consequence of which the witness went to seek the said Thomas Kiuning; that he found the said Thomas Kinning, who asked him to let him, the said Thomas Kinning, go to the defendant, and the witness thereupon took him to the defendant's office, where the defendant then was: that they, the plaintiff and the witness, saw the defendant there; that the witness then said to the defendant, "I have allowed Kinning (meaning the plaintiff) to come here to see if he can make an arrangement;" that the said Thomas Kinning then said to the said defendant, "I did not think you would have served me so;" that the defen

:

dant said, "I could not help it; it was no fault of mine:" they then spoke together. That the witness, after waiting five or six minutes, said, "Are you likely to come to any arrangement?" the defendant said "No:" that the witness then said, "Mr. Kinning, you must accompany me;" that the plaintiff accompanied the witness to Whitecross Prison, where the witness left him. On cross-examination the witness said, he believed he received the said warrant from one Hudson, an officer of the said court. The counsel for the plaintiff also called one William White, who, being sworn, deposed that he saw the said Thomas Kinning in prison, when he was there under the aforesaid warrant; that in consequence of what he told the witness, he, the witness, went to the defendant at his office, and told the defendant that he, the witness, had come at the request of Mr. Kinning, to make some arrangement to release him from prison; that the defendant and the witness arranged that, on payment of 21. 10s. or 31. and giving security for the rest, Mr. Kinning should be discharged from prison; that the defendant said he would discharge the plaintiff on payment of 21. 10s. or 31. and security for costs: that he, the witness, told the defendant he was surprised, because the plaintiff (Townley) in the action against the said Thomas Kinning, had become a bankrupt, and the creditors had no desire to keep the said Thomas Kinning in custody; that the defendant then said to the said witness, "but you know I must have my costs; they must be made secure;" that he, the witness, saw the defendant five or six times, while the plaintiff remained in custody, upon the subject of the plaintiff's discharge, and offered, upon one occasion, to pay two pounds ten shillings, or three pounds, provided defendant would give plaintiff his discharge; defendant said he must have security for the balance; that witness told defendant that it was utterly impossible, from the situation the plaintiff was in, for him to give security, and witness thought it a very hard thing for Kinning, the plaintiff, to remain in prison after the then plaintiff in the suit in the said Sheriff's Court, and the official assignee and the trade assignee of such then plaintiff, were willing that Kinning should be discharged; and that witness had applied to them; that upon one of the interviews between witness and defendant, a person named Austin, the solicitor for the said trade assignee, and agent for the assignees under the said bankruptcy, was present, and that Austin then said his clients (meaning the said assignees) were willing to discharge Kinning, but they would not be responsible for costs; the defendant persisted in having security for his costs; that he, the witness, then said to the defendant, "It appears to me (meaning himself the witness) that there is some feeling at the bottom of all this, and that Kinning would never get his discharge till he paid the whole;" that he, the witness, had the money (21. 10s. or 31.) wherewith to pay, and had offered it to the defendant on every occasion but the first; that the defendant said he had no objection to the plaintiff being discharged, provided he, the defendant, was paid his the defendant's costs. And the said counsel then further proved that the said Thomas Kinning was imprisoned and in prison thirty-eight days under the said warrant. The counsel for the defendant then called witnesses, who were duly sworn, and who gave evidence on each of the said issues, and in order to maintain the second issue, produced and gave in evidence the record of the proceedings in the Sheriff's Court. The counsel for the defendant thereupon contended that there was no evidence in support of the first issue, and the counsel for the plaintiff contended that there was no evidence to support the second issue. The Lord Chief Justice held that there was evidence in support of the first issue, and that there was no evidence to support the second issue, and directed the jury to find the said second issue in favour of the plaintiff, and to say

whether the defendant was guilty of the trespasses in the declaration mentioned, and what the damages were. To that ruling was a bill of exceptions. The jury found both issues in favour of the plaintiff, with 201. damages, whereupon a writ of error was brought.

The writ of error was argued in the first instance (February 4, 1851) before Patteson, Coleridge, Wightman, Erle, JJ. and Parke, Alderson, and Platt, BB.

Bramwell, for the plaintiff in error. First. The order of cominitment was valid. It is submitted that the decision of the Court of Common Pleas in Kinning's case (4 C. B. 507), and the judgments of Patteson and Coleridge, JJ. in the same case, 10 Q. B. 730, cannot be sustained. Abbey v. Dale (20 L. J. 33, C.P.), proceeded upon the authority of Kinning's case. The general rule, it is true, is, that where an act of Parliament imposes penalty, the party liable shall not be convicted without an opportunity of being heard. But that rule is one of construction to be deduced from the language of each particular statute, and is not an abstract proposition of law; and upon a minute consideration of the 9 & 10 Vict. c. 95, ss. 98, 99, 101, it will be found that in a case like the present the judge of the County Court may commit a defaulting judgment-debtor without summons to show cause. The statutes 8 & 9 Vict. c. 127, and 7 & 8 Vict. c. 96, were referred to as analogous, and as showing that a party might be committed to prison upon an ex parte application. The case of Re Hammersmith Rent Charge (19 L. J. 66, Ex.) was also cited. (This court intimated that the majority of the court were not likely to overrule the decisions cited, and that their present impression was that the decision of the Court of Common Pleas was correct, and that Erle, J. was the only judge present who dissented from that view.) Secondly. The ruling of the learned judge that there was no evidence in support of the second issue was wrong. The only fact in issue on the replication to the second plea was the making of the order, and not the question of its validity. The case of Dresser v. Stansfield (14 M. & W. 822), which will be relied on by the other side, has really no bearing upon this point. There a special plea showing the grounds upon which it was intended to raise the question of the validity of an award, was specially demurred to as an argumentative plea of nul agard, and the court held that it was so, and that the plea of no award meant no valid award; but here the very terms of the traverse limit the issue to the fact of the making of the order, and do not raise the question of its validity. (Williams v. Germaine, 7 B. & C. 468; Everard v. Paterson, 6 Taun. 645; Cooke v. Blake, 17 L. J. 370, Ex.; Adcock v. Wood, 16 L. T. 552; and Kinning v. Buchanan, 8 C. B., were cited upon this point.) Thirdly, the defendant is not liable for what he did, and is entitled to have the verdict entered for him upon the general issue. If this commitment was a penal proceeding, what has the defendant, the attorney of Townley, done to make him liable in this action? As the defendant did not profess to act on his own behalf, no ratification of the arrest will make him liable: (Wilson v. Tummon, 6 Sc. N. C. 894; 6 M. & G. 236, S. C.) Process of contempt differs from a ca. sa., and an attorney is not liable, if he takes no steps in the execution of the warrant : ( (Cooper v. Harding, 7 Q. B. 928; Barker v. St. Quinton, 12 M. & W. 441, is not in point; Sedley v. Sutherland, 3 Esp. 202; Carratt v. Morley, 1 Q. B. 18.) The court issues the warrant, and not the attorney, and the clerk of the court hands it to the serjeant-at-mace; the defendant, therefore, is not liable for the issuing of this invalid warrant: (Freeman v. Rosher, 18 L. J. 340, Q. B.) Lastly, this was a case in which the County Court had jurisdiction over the subject of complaint, and the defendant is protected by the process of the court: (Marshalsea case, 10 Rep. 68; and Thomas v. Hudson, 14 M. & W. 353; affirmed in error, 16 M. & W. 885.)

3

May 15, 1851. Argument resumed before Parke, B., Patteson, J., Wightman, J., Platt, B., Erle, J., and Martin, B. Pashley (Henniker with him), for the defendant in error.-As to the first point, the decisions in the Court of Common Pleas are relied upon, and also the intimation of opinion of the majority of the judges of this court already given. Secondly, as to what was put in issue by the traverse in the replication. The plea alleges that the said Edward Bullock, &c., duly and according to the form of the said statute, ordered that the plaintiff should be committed for forty days, and the replication traverses that allegation in these terms:"That the said Edward Bullock did not order that the plaintiff should be committed for forty days, &c., in manner and form as in the said plea alleged. That traverse involves the duly making of the order, and its validity, therefore, as well as the fact of its being made, was in question, and the direction of the learned judge was right: (Dawes v. Papworth, Willes, 408; Lewis v. Parkes, 3 M. & W. 133; Dudlow v. Watchorn, 15 East, 39; Nightingale v. Wilcoxon, 10 B. & C. 202; Reg. v. The Justices of Cornwall, 2 D. & L. 775; 1 Wms. Saun. 376; Cooke v. Blake, 17 L. J. 370, Ex.) As to the third point, the following authorities were referred to: (Calder v. Halket, 3 Moore's P. C. 70; Smith v. Boucher, Stra. 993; Cunningham, 89, 127, S. C.; Gosset v. Howard, 10 Q. B. 411; Watson v. Bodell, 14 M. & W. 57; Reg. v. Hampshire, 9 Dowl. 171; Andrews v. Marris, 1 Q. B. 3; Cripps v. Durden, Cowp. 640.

JUDGMENT.-June 3.

Cur, adv. vult.

PARKE, B. delivered the judgment of the court, and, after stating the pleadings and facts as above, proceeded: -This case was argued before my brothers Patteson, Wightman, Erle, Platt, Martin, and myself. On the argument of this writ of error before us, three exceptions were taken to the direction of the Lord Chief Justice Wilde on the trial: first, that the order of commitment was valid; secondly, that the only question in issue on the replication to the plea was the fact of the order having been made to the effect stated in the plea, and not the validity of that order; thirdly, that there was no evidence to make the defendant responsible for putting the warrant in force; and, fourthly, that the order being made by the judge of a Court of Record, although invalid, was nevertheless a protection to the officer acting under it, and the attorney in the cause. On the first question, the court intimated an opinion (except my brothers Erle and Martin, the former of whom has given his reasons, already expressed (10 Q. B. 745), and the latter concurs in them), that they consider the question as to the plaintiff below being entitled to his discharge on the habeas corpus to be settled, and that to make the order of commitment valid, a previous summons was necessary. On the third question, also, this court intimated that they thought there was evidence for the jury that the warrant was originally ordered to be executed so as to bind the defendant, as the order of his clerk to execute it, was subsequently ratified by him. On the second and fourth questions, the court took time to consider. On the second, we are all satisfied that the only matter in question in issue on the second plea was the fact of the order having been made as alleged, and not the validity of it; and consequently, that the Lord Chief Justice ought to have directed the jury to find a verdict on that issue for the defendant. The plea states a great number of facts necessary to give Mr. Bullock jurisdiction over the cause and to make the order, namely, the recovery of the debt by Townley, that the court was an inferior Court of Record, that there was a petition to the court; a suinmons; service of summons, appearance; examina

tion on oath, order to pay by instalments; notice thereof, non-payment in pursuance of the order; and that it was duly made to appear, and adjudicated that it did appear, that he had notice of the order, that it was served upon him, demand made, and that the instalments were in arrear; whereupon the court duly, and according to the form of the statute, made the order of commitment. The only traverse in the replication is that the order was not made in manner and form; and in terms it denies only the making of the order and the manner and form in which it was made, not that it was made duly and according to the form of the statute, that is not included in the terms of the issue. If it was the intention of the pleader to include only the fact of the order being made by the court, more apt words could not have been used; but supposing that the traverse was in the formal terms that the order was not made duly according to the form of the statute, we do not think in this replication it would be considered as including the denial that the plaintiff was duly summoned, and neglected to appear to answer the charge of not paying the instalments. It is clearly settled that this traverse would not put in issue any one of those numerous and special allegations; for admitting, argumenti causá, that there was an allegation, simply, that the order was made duly and according to the statute, and that the traverse was, that an order was not made duly and according to the statute modo et formá, the validity of the order would be involved in the issue. It is clear on such an issue as this, where divers facts essential to the validity of the order are stated, and an opportunity to traverse each is afforded, the denial of the making of the order does not involve the denial of any one of those facts, as where it is averred that one was seised in fee and demised, the plea of non demisit does not involve the question of seising in fee, as was fully explained in the case of Cooke v. Blake (17 L. J. 370, Ex.; 1 Ex. 220, S. C.) All these facts being admitted, and the order alleged to have been made thereupon, that is, on the happening of those circumstances, duly and according to the form of the statute, we cannot possibly believe that this was meant to be a traverse by implication, that the additional facts existed which are now held to be necessary; that is, that the debtor was summoned to show cause and neglected to appear, or appeared and made no excuse, and that thereupon the order was made. The averment of certain facts, and that the order was made on a certain adjudication of facts by the court, seems to us inferentially to state that those were all the facts on which the order was made, and the averment that it was duly made means in this plea that it was made duly, because the premises warranted it, not that the other essential circumstances existed. We are therefore of opinion that the Lord Chief Justice's direction was wrong upon this point; and we are not now called on to decide whether, understanding the plea or not as containing an averment that there was a summons and non-attendance, or attendance and no excuse, the plea would be bad or not; that will be open hereafter, when the verdict is found for the defendant upon this plea. If the plaintiff was entitled to his discharge on the habeas corpus, as follows from what we have said, it does not therefore follow that a person so entitled can bring an action of trespass. The case of Hammond v. Howell (1 Mod. 184), shows that when this record comes before us again, that point will be discussed. We need not at present give any opinion upon it. Therefore the judgment will be reversed, and a venire de novo awarded. Venire de novo.

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July 20, 1851.

LAVEY O. THE QUEEN.

Perjury committed in County Court-Form of indictment
-Averment of jurisdiction-County Court.

An indictment for perjury averred that on, &c. in the
Whitechapel County Court of Middlesex, holden at the
Court-house, in Osborne-street, Whitechapel, in the
parish of, &c. in the county of Middlesex, before J. M.
serjeant-at-law, then and there being judge of the said
court, a certain action on contract, then pending in the
said County Court, between A. L. suing as widow and
executrix of H. L. plaintiff, and R. H. defendant,
came on to be tried, and was then in due form of law
tried and heard before the said J. M. &c. upon which
trial the said A. L. &c. tendered herself as a witness
on her own behalf, and was duly sworn, &c. before the
said J. M. then and there being judge of the said court
as aforesaid, and then and there having sufficient and
competent authority to administer the said oath to her, &c.:
Held, after verdict upon writ of error, first, that the court
was sufficiently designated as a court held under stat.
9 & 10 Vict. c. 95; and, secondly, that although there
was no express averment that the oath was administered
in a judicial proceeding over which the court had
jurisdiction, that averment was, by necessary intendment,
involved in the allegation that the judge had sufficient
authority to administer the said oath.

Error from the Court of Queen's Bench, upon a judgment of imprisonment, passed by Lord Campbell at Nisi Prius, upon the following indictment, which had been removed by certiorari:

The jurors for our Lady

dlesex, charged with any offence whatever. And the jurors aforesaid, upon their oaths aforesaid, do further present that the said Ann Lavey, being so duly sworn as aforesaid, and not having the fear of God before her eyes, nor regarding the laws of this realm, but being moved and seduced by the instigation of the devil, and contriving and intending to prevent the due course of law and justice, and unjustly to oppress and aggrieve the said Robert Hannah, and to subject him to the payment of divers large sums of money, and sundry costs, charges, and expenses then and there and within the jurisdiction of the said Central Criminal Court, on the said hearing and trial of the said action, upon her oath aforesaid, falsely, corruptly, knowingly, wilfully, and maliciously, before the said James Manning, then and there being such judge of the said County Court as aforesaid, did depose and swear, and amongst other things in substance, and to the effect following-that is to say, that she, the said Ann Lacey, never had been tried at the said Central Criminal Court, on an indictment for having feloniously uttered a forged endorsement to a certain bill of exchange, well knowing it to have been forged, and with intent to defraud one Adolphus Brant and another; and that the said Ann Lavey had never been tried at the said Central Criminal Court for any offence whatever; and that she, the said Ann Lavey, had never been in custody at the Thames Police Station in Stepney, in the said county of Middlesex, charged with having uttered the said forged endorsement as aforesaid; and that the said Ann Lavey had never been in custody at the said Thames Police Station, charged with any offence whatever. Whereas, in truth and fact, the said Ann Lavey was, to wit, at a session of the Central Criminal Court, held on

Central Criminal Court, the Queen, upon their oath the 21st day of August, in the year of our Lord 1843,

to wit. present, that heretofore and at the time of the committing of the offence hereinafter mentioned, to wit, on the ninth day of April, in the year of our Lord, 1850, in the Whitechapel County Court of Midd esex, holden at the Court-house in Osborne-street, Whitechapel, in the parish of St. Mary, Whitechapel, in the county of Middlesex, and within the jurisdiction of the said Central Criminal Court, before James Manning, Serjeant-at-Law, there and then being the judge of the said court, a certain action on contract, then pending in the said County Court between Ann Lavey, suing as widow and executrix of the last will and testament of Hyam Lavey, deceased, plaintiff, and Robert Hannah, defendant, came on to be tried, and was then and there, in due form of law, heard and tried by and before the said James Manning, then and there being judge of the said County Court as aforesaid, upon which said hearing and trial the said Ann Lavey, of the parish of St. Paul, Shadwell, in the county of Middlesex, and within the jurisdiction of the said Central Criminal Court, widow, appeared and tendered herself as a witness on her own behalf, and was then and there within the jurisdiction of the said Central Criminal Court, duly sworn, and took her corporal oath before the said James Manning, then and there being judge of the said court as aforesaid, and then and there having sufficient and competent authority to administer the said oath to her, the said Ann Lavey, in that behalf, that the evidence which she, the said Ann Lavey, should give to the court then and there touching the matter then and there in question between her, the said Ann Lavey, and the said Robert Hannah, should be the truth, the whole truth, and nothing but the truth. And the jurors aforesaid, upon their oath aforesaid, do further present, that at and upon the hearing and trial of the said action as aforesaid, it then and there became and was a material question in the said action, whether she, the said Ann Lavey, had ever been tried at the said Central Criminal Court for any offence whatever, and whether the said Ann Lavey had ever been in custody at the Thames Police Station in Stepney, in the said county of Mid

tried in due form of law for a certain offence on an indictment for having feloniously uttered a forged endorsement to a certain bill of exchange, well knowing it to have been forged, with intent to defraud one Adolphus Brandt and another; and whereas also, in truth and in fact, the said Ann Lavey was, to wit, on the 21st day of August, in the year of our Lord 1843, in custody at the Thames Police Station aforesaid charged with a certain offence, to wit, with having obtained by means of a forged note the sum of one pound five shillings, with intent to defraud Thomas Yates, and so the jurors aforesaid, upon their oaths aforesaid, do say that the said Ann Lavey, on the said 9th day of April, in the year of our Lord 1850, at the Whitechapel County Court of Middlesex aforesaid, at the parish aforesaid, and within the jurisdiction of the said Central Criminal Court, before the said James Manning, then and there being such judge of the said County Court as aforesaid, and having such power and authority as aforesaid, by her own act and consent, and of her own most wicked and corrupt mind, in manner and form aforesaid, falsely, wickedly, wilfully, and corruptly did commit wilful and corrupt perjury, to the great displeasure, &c.

The following points were stated for argument:

1. That it does not appear from the indictment that there ever was such a court as the supposed court therein described, as the Whitechapel County Court of Middlesex, or that such court was ever lawfully created or established under stat. 9 & 10 Vict. c. 95, or ever lawfully existed; nor does it appear from the indictment whether that court was a Court of Record or not of record, or that the same court had any jurisdiction to hold plea of or try the action on contract mentioned in the indictment.

2. That it does not appear from the said indictment that the cause of action for which the action on contract in the said indictment mentioned was commenced in the said Whitechapel County Court of Middlesex, arose or accrued within the jurisdiction of that court, or was a cause of action over or in respect of which that court had

jurisdiction, or that the sum sought to be recovered by the said action did not exceed 201., or was of such an amount as to be recoverable in that court. And it is in the said indictment alleged that Ann Lavey sued in the said action as widow and executrix of the last will and testament of Hyam Lavey, deceased, whereas the said Ann Lavey could not by law maintain any action on contract in the capacity of or as such widow and executrix. 3. That it appears from the indictment that some issue or matter of fact in the said action came on to be tried by and before James Manning in the said indictment mentioned, and that the said Ann Lavey tendered herself as a witness on her own behalf, but it does not appear from the said indictment that the said James Manning had any power or authority to try such issue or matter of fact, or that the said Ann Lavey could lawfully be sworn or examined as a witness on her own behalf in a cause in which she was the plaintiff.

4. That though the indictment states that Ann Lavey was duly sworn and took her corporal oath before the said James Manning that the evidence which she should give should be such as in the said indictment in that behalf mentioned, yet the said indictment does not state that the said Ann Lavey took her corporal oath or was sworn upon the Holy Gospel of God, or in any other

manner.

5. That it does not sufficiently appear from the indictment whether the evidence to which the said Ann Lavey was sworn, as in the indictment mentioned, was to be given by her in the said Whitechapel County Court of Middlesex or in the Central Criminal Court in the said indictment mentioned, nor does the said indictment sufficiently show of which of those two counts James Manning, in the said indictment mentioned, was the judge.

6. That the indictment alleges that Ann Lavey was sworn and took her corporal oath as therein mentioned with respect to the evidence which she should give to the court therein in that behalf mentioned; but the evidence upon which the perjury is assigned, as in the indictment alleged to have been given before James Manning, and the indictment does not allege James Manning to have been the court to which was to be given the evidence with respect to which Ann Lavey was sworn, as in the said indictment mentioned; and it does not sufficiently appear from the said indictment to which of the two courts therein mentioned Ann Lavey was to give the evidence with respect to which she was sworn, as in the indictment mentioned.

7. That the indictment does not sufficiently allege or show the materiality of the evidence upon which the perjury is assigned to, or with reference to the question or matter to be tried, or that it was material with reference to the question or matter to be tried; that the averments and statements introduced into and contained in the said indictment, for the purpose of showing the materiality of the evidence upon which the perjury is assigned, are not sufficient for that purpose; and that it is consistent with the said indictment that the evidence upon which the perjury is therein assigned was wholly immaterial, and was evidence upon which perjury could not properly be assigned. That the indictment contains the following allegation, that is to say: "And the jurors aforesaid, upon their oath aforesaid, do further present, that upon the hearing and trial of the said action as aforesaid, it then and there became, and was a material question in the said action." And such allegation is immediately followed by a statement of divers matters; and it does not appear from the said indictment to which of those matters that allegation applies or relates.

8. That the indictment ought to have concluded contrá formam statuti.

This case was argued on Wednesday, June 18, by Willes, for the plaintiff in error; Prendergast, contrá.

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PARKE, B.-In this case I have now to deliver the judgment of the court. It was an indictment for perjury committed in the County Court, and the averment isy "that in the Whitechapel County Court of Middlesex, holden at the court-house in Osborne-street, Whitechapel, in the parish of St. Mary, Whitechapel, in the county of Middlesex, and within the jurisdiction of the said Central Criminal Court, before James Manning, Serjeant-at-Law, then and there being the judge of the said court, a certain action on contract then pending in the said County Court between Ann Lavey, suing as widow and executrix of the last will and testament of Hyam Lavey, deceased, plaintiff, and Robert Hannah, defendant, came on to be tried, and was then and there in due form of law heard and tried by and before the said James Manning, then and there being judge of the said County Court as aforesaid, upon which said hearing and trial the said Ann Lavey, of the parish of St. Paul, Shadwell, in the county of Middlesex, and within the jurisdiction of the said Central Criminal Court, widow, appeared and tendered herself as a witness on her own behalf, and was then and there within the jurisdiction of the said Central Criminal Court duly sworn, and took her corporal oath before the said James Manning, then and there being judge of the said court as aforesaid, and then and there having sufficient and competent authority to administer the said oath to her, the said Ann Lavey, in that behalf, that the evidence which she, the said Ann Lavey, should give to the court then and there touching the matter then and there in question between her, the said Ann Lavey, and the said Robert Hannah, should be the truth, the whole truth, and nothing but the truth." Then they set out the evidence, and aver that the question was material, and that what she swore in answer thereto was false. She pleaded not guilty, and sentence was passed at Nisi Prius of twelve months' imprisonment, on which she has brought a writ of error. Two objections were stated to this indictment. The first was, that the court in which the proceedings took place, in the course of which the perjury was committed, was not properly described. We intimated our opinion in the course of the argument that that objection ought not to prevail. We think it does. sufficiently appear that the court was held in pursuance of the 9 & 10 Vict. c. 94, as it is alleged to have been a County Court, and held before a single judge. The second objection was, that there was no averment that the action of contract stated in the indictment was one over which the County Court had jurisdiction; and further, that no intendment can be made in favour of an inferior court that the action pending in it was one over which the court had jurisdiction. If it had not, then perjury could not have been committed in giving evidence in that case. For the Crown it was contended that the court might have authority to put the question, and have it answered, although it had no jurisdiction over the case; but that, even assuming that it was necessary that the suit should be one for a cause of action cognizable in a County Court, in order to render the witness liable to an indictment for perjury, there was a sufficient averment that it was such a suit involved in the averment that the judge had sufficient and competent authoriiy to administer the said oath, for he would have no such authority (on the supposition that it was necessary that he should have jurisdiction over the suit, in order to make the oath binding), unless that very oath was administered in the course of such a suit; and that

the meaning of the averment of authority to administer the oath was that was administered by such a person

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