1871 THE QUEEN บ. FLETCHER. that the summons was irregularly issued, because there was no sufficient deposition on oath before it was issued. It has been suggested that under the section in question there must be a written statement on oath-in fact, an affidavit—by the woman; but I think at any rate an oral statement, taken down in writing in the usual way in which depositions are taken, must be sufficient. Jervis's Act, being later in time, cannot apply here; but certainly more than that Act prescribes cannot be required. The second Act referred to (8 Vict. c. 10, s. 1) does not affect the case. That Act only says that proceedings according to the forms in the schedule, or to the like tenor and effect, shall be valid and sufficient; it does not say that those forms must be used. Then, if all that the Act requires be that the magistrate shall make a record of the evidence orally given, the summons itself seems to me very like a writing to the same tenor and effect with the form of deposition in the schedule to the second Act. But supposing the irregularity to have been ever so great, even if there had been no statement on oath at all, how would the law be then? In that case Reg. v. Berry (1) is a decision in point. The 7 & 8 Vict. c. 104, s. 2, authorizes the issue of the summons in several different cases. One is after the lapse of twelve months from the birth, in which case a summons may issue upon proof of payment of money by the alleged father during the twelve months next after the birth. Another is before birth, in which case the summons is to issue upon the woman making a deposition on oath. In Reg. v. Berry (1) the question arose as to the first of these two cases. That was an indictment for perjury committed on the hearing of an affiliation summons. It appeared that the summons had been issued more than twelve months after the birth of the child, and that there had been no proof-no proof within the meaning of that word in law-of the payment of money within twelve months after birth. The case was, therefore, precisely the same as the present; and all the judges composing the Court, except my Brother Martin, after taking time to consider, held that the conviction ought to be affirmed, on the ground that the defendant, by appearing and not objecting, had waived any irregularity in the issue of the summons. Lord Campbell there said (2): (1) Bell C. C. 46; 28 L. J. (M.C.) 86. (2) Bell C. C. at p. 59. v. "The proceeding against the putative father of a bastard child, to 1871 obtain an order of affiliation and maintenance, is not a proceeding THE QUEEN in pœnam to punish for a crime, but merely to impose a pecuniary FLETCHER, obligation, and is a civil suit within the meaning of 14 & 15 Vict. c. 99, ss. 2, 3: Reg. v. Lightfoot. (1) For this reason the defendant was admitted as a witness on his own behalf. Then what is the summons which we have to consider? Mere process to bring the defendant into court in a civil suit. I incline to think that, according to strict regularity, before the summons issued, there ought to have been evidence on oath of the payment of the money, although it is not expressly required by the statute to be on oath, as is the case where the complaint is made before the birth of the child. Further, it would have been proper that the summons should have been in the form given by the Act of Parliament. But supposing that, if the defendant had not appeared, the petty sessions could not lawfully have proceeded to hear evidence of the paternity; or that, if he had appeared and objected to the regularity of the summons, the objection ought to have prevailed, I am of opinion that when he actually appeared, and instead of objecting to the regularity of the summons, he asked the Court to give judgment in his favour, on the merits, he waived any irregularity there might be in the process; and that, when he had thus submitted himself to the jurisdiction of the Court, the Court had jurisdiction to hear and decide the suit." Here there was a summons and a statement on oath. But even if there had been no such statement, and no summons, still the defendant was before the magistrates, and they had jurisdiction to hear the case. The conviction must, therefore, be affirmed. MARTIN B. I am of the same opinion. Section 2 of 7 & 8 Vict. c. 101, enacts that, if the application for a bastardy summons be made before the birth of the child, the woman shall make a deposition upon oath stating who is the father. I agree with Mr. Bristow that the word deposition requires something in writing. Webster's Dictionary defines "depose " as "to give testimony on oath, especially to give testimony which is committed to writing." Here I think the meaning of deposition is an oral statement taken (1) 6 E. & B. 822; 25 L. J. (M.C.) 115. 1871 V. FLETCHER. down in writing, and as the section referred to contains a positive THE QUEEN enactment that when the application is before birth there shall be a deposition upon oath, there was an irregularity committed in the present case. But the prisoner by appearing to the summons waived the objection, and that being so, the justices before whom the summons was heard had power to proceed with the case, not as mere arbitrators, but in a judicial capacity. The proceeding was therefore a valid judicial proceeding sufficient to make the prisoner's false swearing in the course of it perjury, although there had been a defect of which he might have taken advantage. BRAMWELL, B. I am of the same opinion. BYLES, J. I am of the same opinion. I agree that deposition means a statement of evidence reduced to writing. I think that is the only meaning of the word. And when, in s. 3 of the Act referred to, a different thing is intended, different words are used, namely, “hear the evidence." The ground of my decision is that the summons is only a process to bring the defendant before the Court. Once before the Court, the proceeding is a judicial proceeding, and an indictment for perjury lies. BLACKBURN, J. I am at present of opinion-though, perhaps, it is not strictly necessary to decide the point-that deposition means such a deposition as is described in Jervis's Act (11 & 12 Vict. c. 42). Jervis's Act is no doubt later in date than the Act with which we have now to deal, but it is in this respect mainly a continuation and re-enactment of earlier Acts. I think, therefore, that a deposition must, in the section now in question, mean evidence taken down in writing, though whether signature is necessary I do not say. But I do not think that any of the matters mentioned in s. 2 are more than directory. If the application be made more than twelve months after the birth of the child, it is to be upon proof that the man alleged to be the father has within twelve months after birth of the child paid money for its maintenance. If the application is before birth the woman is to make a deposition upon oath. If either of these things be omitted it is an irregularity for which the magistrate or his clerk 1871 V. FLETCHER. is blameable; but it does not oust the jurisdiction. I think if these things were left out altogether the proceedings upon the summons THE QUEEN would none the less be good, But however this may be, the irregularity may be and was waived by the defendant's appearing and not objecting. In Reg. v. Berry (1) this was expressly held to be so in the case of an application more than twelve months after birth where no proof had been given of payment of money within twelve months after birth. And I can see no distinction between the two cases. Attorney for prisoner: S. Leech, Derby. Conviction affirmed. (1) Bell C. C. 46; 28 L. J. (M.C.) 86. END OF EASTER TERM, 1871. VOL. 1. SA 4 1871 June 3. CASES DETERMINED BY THE COURT FOR CROWN CASES RESERVED IN TRINITY TERM, XXXIV VICTORIA. THE QUEEN v. EDMUND BALLS. Embezzlement-Indictment-Evidence-Three Acts of Embezzlement in One The prisoner was a member of a co-partnership. It was his duty to receive money for the co-partnership, and once a week to render an account and pay over the gross amount received during the previous week. During each of three several weeks, within six months, the prisoner received various small sums, and failed to account for them at the end of the week, or to pay over the gross amount, but embezzled the money: Held, that he might properly be charged with embezzling the weekly aggregates; that three acts of embezzlement of such weekly aggregates within six months might be charged and proved under one indictment; and that evidence of the small sums received during each week was admissible to shew how these aggregates were made up. CASE stated by Mr. Commissioner Kerr. Indictment, charging in the 1st count that the prisoner being a member of a certain co-partnership of persons trading under the name, style and title of the Alliance Industrial and Provident Coal Society, Limited, did on the 5th of December, 1870, receive into his possession the sum of 17. 1s. in money, for and on the account of the said co-partnership, and fraudulently and feloniously did embezzle the said sum of money. The 2nd count charged him with having within six months from the offence in the first count, that is to say, on the 12th of |