This part of the indictment cannot be rejected as surplusage-The King v. Bromley (21).

[COLERIDGE, J.-There something mate rial was wrongly stated.]

Heydon's case (22) was also cited. [COLERIDGE, J.-This is a statement at one assizes of a bill found at a former assizes.]

Bliss, for the Crown.-If the term "perjury and misdemeanour" be nomen collectivum, and there be one bad count, it will become a question whether the decision of O'Connell v. the Queen is to be carried any further. There the word was 66 offences;" here there is a general judgment given on the premises, and if "misdemeanour" means only one offence, it may be contended that these counts contain the statement of one and the same offence with immaterial variations. But none of these counts are bad; and, first as to the objection to the jurisdiction, it is unnecessary to shew that the proceeding in which the oath was taken arose properly: it is sufficient to shew that it was a judicial proceeding before a court of competent authority-The King v. Dowlin (23). But, in fact, jurisdiction under the 6 & 7 Vict. c. 73. is shewn. Jurisdiction depends not on the truth or falsehood of the facts which are the foundation of the proceedings, but whether they were stated: therefore, an averment that there had been no previous application would not have aided. Nothing is to be intended against the jurisdiction of a superior court; and there being an application made, it is presumed that it was made under all proper circumstances. The 23 Geo. 2. c. 11. renders a statement of the whole proceedings unnecessary. The Queen v. Smith referred to was the case of an inferior court, where the authority must be shewn, and The King v. Punshon, The Queen v. Ewington, and The Queen v. Bishop were questions of evidence, not of averment on the record.― Then, as to the averment of materiality.

[LORD DENMAN, C.J.-We are all of opinion that the question was a material one, if there was jurisdiction to entertain it.]

Then as to the entry of the verdict and judgment, there is no uncertainty. The words (21) 1 Ventr. 13.

(22) 4 Rep. 41, a.

(23) 5 Term Rep. 311.

NEW SERIES, XVII.-MAG. CAS.

"perjury and misdemeanour aforesaid," if not nomina collectiva, refer to the count last aforesaid. In Campbell v. the Queen (24) this point was taken, and as there the last count did not warrant the judgment, that decision may be supported on that ground. The King v. Richards (25), The Queen v. Rhodes (26), Sutton v. Fenn (27), Ross v. Morris (28), were cited. The verdict may have been given only on the last count, and the jury may not have been charged on the others. The award of a venire is unnecessary, and may be rejected, and the judgment would still be good. Judges sitting under the commission of gaol delivery may order a jury to be summoned instanter. But "misdemeanour" is nomen collectivum-The King v. Powell. Campbell v. the Queen, deciding that "felony" is not so also, does not affect this case. Indeed, the form of this verdict shews that the jury treat it as a collective word, and refer it to the whole as to one count. Lastly, the conclusion of the indictment, if repugnant to the commencement, may be rejected as surplusage-The King v. Stevens (29), Wyatt v. Aland (30). "Perjury" is not, like "murder," a word of art-2 Hawk. Pl. of the Crown, 310. The statement that a false oath was taken before a competent tribunal is a sufficient designation of the offence of perjury without a formal conclusion.

[COLERIDGE, J.-Do you not require a conclusion, as you have an offence under a statute?]

If so, the word "did" may be rejected, and the conclusion will then be good.

Pashley, in reply.-The defendant has a right to have judgment entered on each count, in order that if he gets a pardon for one of the offences charged, he may plead it.

[WIGHTMAN, J.-There is nothing on this record to shew that the offences charged in the counts are different.]

The retainer is stated to be different in the first and second counts. Suppose an indictment charged four libels, published in four different copies of the same newspaper, the judgment ought to be entered on each

(24) Ante, p. 89.

(25) 1 Moo. & Rob. 177. (26) 2 Ld. Raym. 886. (27) 3 Wils. 339.

(28) Cro. Eliz. 108, 436.

(29) 5 East, 244.

(30) 1 Salk. 324.

count, and the punishment apportioned. As to the point of jurisdiction, he cited The Queen v. Overton (31).

[PATTESON, J.-There it did not appear that the commissioners had authority to hear appeals of the particular kind.] Cur. adv. vult.

The judgment of the Court (32) was now (Feb. 26,) delivered by

how

COLERIDGE, J.-This was a writ of error upon an indictment for perjury, tried, at the Spring Assizes at York, in the year 1846. The indictment contained four counts, each of them stating that the prisoner had employed William Unwin, an attorney of the Court of Exchequer, who had delivered his bill, and after the expiration of one month from such delivery, had taken out a summons before Mr. Baron Rolfe, to shew cause why the bill should not be referred for taxation. They also state that the defendant, before shewing cause, made an affidavit denying that he had retained Unwin, and perjury is assigned on that affidavit. The record then stated the appearance of the defendant, and that "being demanded concerning the premises in the said indictment above specified and charged upon him, he will acquit himself thereof, he saith that he is not guilty thereof, and thereof for good and evil he puts himself upon the country." It then states a joinder by the clerk of the Crown, and a writ of venire to jurors to try "whether the said Joseph Naylor Ryalls be guilty of the perjury and misdemeanour aforesaid, or not guilty." It then states the verdict, "that he is guilty of the perjury and misdemeanour aforesaid, in manner and form as by the said indictment above against him is supposed." It then states the judgment: -"Whereupon all and singular the premises being seen, and by the Court here fully understood, it is considered by the Court here that the said Joseph Naylor Ryalls be committed to the house of correction at Wakefield, in and for the West Riding of the said county, and there imprisoned and kept to hard labour for ten calendar months."

The first ground of error applies to each of the counts. They all allege that Unwin took out a summons to refer his own bill

(31) 4 Q.B. Rep. 83.

(32) Lord Denman, C.J., Patteson, J., Coleridge, J., and Wightman, J.

for taxation after the expiration of one month from the delivery. It is contended that this expression means one lunar month, whereas the act of parliament, 6 & 7 Vict. c. 73, which authorizes the reference, enacts, by the interpretation clause, section 48, that the word "month" shall mean "calendar month." We are of opinion, that as the counts of the indictment all refer to the act, the word "month" in the indictment must be construed according to the clause in the act, and that this ground of error cannot prevail.

The second ground of error applies only to the fourth count, in which there is no averment, as there is in the other counts, that no application to tax had been made within the month by the party chargeable, in which case only the act authorizes an application to be made by the attorney himself, and so no jurisdiction is shewn upon the face of the fourth count for issuing the summons. We are of opinion, that this ground of error cannot be sustained. The Judge had jurisdiction after the expiration of the month, which is alleged in the count, to issue a summons at the instance of the attorney, calling on the party chargeable to shew cause why the bill should not be taxed, although it may be true that if it had appeared on shewing cause that a previous application within the month had been made by the party chargeable, the Judge might not have had jurisdiction to make an order for taxation. Therefore, the affidavit of the defendant made after such summons was made in the course of a judicial proceeding. And this makes it unnecessary

to consider what would have been the effect of the decision in the case of O'Connell v. the Queen, if one of the counts of this indictment had been bad.

The third ground of error was, that the materiality of the affidavit did not appear. This was disposed of on the argument. It is obvious, that the fact of Unwin's being retained was a material ingredient for the inquiry.

The fourth ground of error was, that each of the counts concluded with the words "and so the jurors aforesaid, upon their oath aforesaid, did say that the said Joseph Naylor Ryalls," &c. did commit perjury, whereas it ought to have been "do say." The answer is, that the whole averment may be struck out. The perjury is suffi

ciently alleged by the preceding part of the count, and as "perjury" is not a word of art, like "murder," the concluding part of the count is immaterial.

The fifth ground of error was, that the venire and the verdict are uncertain; they are both in the singular number, speaking of the perjury and misdemeanour aforesaid; that this can mean only one perjury and misdemeanour, and as four are alleged in the indictment, it is uncertain which of them the jury was summoned to try, and of which of them the defendant was found guilty. Now it was decided in The King v. Powell, that the word "misdemeanour" is nomen collectivum. That case was not overruled in O'Connell v. the Queen as to this point. This Court, indeed, in Campbell v. the Queen, held that the word "felony" is not nomen collectivum, and intimated some doubt as to the doctrine in The King v. Powell respecting the word "misdemeanour;" but the Court of Exchequer Chamber, in the same case (33), agreeing with this Court as to the word "felony," and affirming the judgment, expressly say that The King v. Powell has not been overruled, and treat it as a valid decision.

We feel that it is so,

in pursuance of 53 Geo. 3. c. 127. s. 7, stated, that a church-rate was duly made, &c., that the same was afterwards duly allowed, &c., that the defendant was and is in and by the said church-rate duly rated at and in the sum of 16s., &c., and that the said church-rate continues in full force and effect, &c.:-Held, that the above form of alleging facts in an indictment, by way of inducement, is sufficient. In describing the offence itself, the facts and circumstances constituting the offence must be set out with particularity.

The same count of the indictment further stated, that whilst the said sum of 16s. remained due from the defendant, A. B. and C. D. then and thence hitherto being the churchwardens, &c. laid an information and complaint on oath before a Justice, of the rate having been duly made, duly allowed, &c.; that the defendant was duly rated thereto; that the rate had been duly demanded from the defendant; that the defendant refused to pay, &c.; that the said Justice made his warrant, whereby, "after reciting as is therein recited," he, the said Justice, did summon the said defendant to appear before two Justices, at eleven o'clock, on the 6th of June, at &c., there to answer the said information and complaint, &c., that the said warrant was, on the 30th of May, personally served on the defendant; that the defendant did not appear according to the exigency of the said warrant, at &c., on the said 6th of June; that two Justices did then and there examine, upon oath, into the merits of the said complaint, and did then and there make their order (for payment of the rate and costs):-Held, that the information, as above set out, was sufficient, and therefore the previous statement of the facts, by way of inducement in the indictment, was unnecessary.

A sufficient information, by competent persons, gives jurisdiction to Justices irrespective of the truth of the facts contained in it.

Under the 7th section of 53 Geo. 3. c. 127. an information on oath which states a rate duly made in which the party was rated, a demand on, and a refusal by that party to pay proved to the satisfaction of the Justices, confers on them authority to make a valid order for payment, whether de facto there was a proper rate and proper demand and refusal or not.

An indictment is sufficient which states that the churchwardens were authorized to receive the rate at the time of the refusal to pay, though such authority be not averred at the time of the demand.

A warrant which recites facts by way of inducement, and then summons a party to appear before two Justices, is sufficiently averred in an indictment which, without stating the recitals, sets out the mandatory part of the warrant correctly.

The warrant, as above set out, was sufficiently averred to have been addressed to the defendant, and did not require to be dated.

To support an order of Justices it will be presumed that the warrant (on which the order is founded) was served a reasonable time before the day of appearance.

An indictment on an order need not set it out according to the tenor: it is sufficient to set out its substance correctly.

An indictment is sufficient which states by implication that the rate was in force at the time the order was made.

Semble-In a special plea, by a Justice, to an action of trespass, under 43 Eliz. c. 2. s. 4. (an Act for the Relief of the Poor), it would be enough to state a poor-rate duly published; that the plaintiff was an occupier and rated; and that there was a complaint on oath by the overseer that the plaintiff did not pay on demand, and that that fact was proved to the satisfaction of the Justice, although there had not been, in fact, any such demand on, and refusal by, the plaintiff, as was sworn to before the Justice.

This was an indictment for disobeying an order of Justices, made under the 53 Geo. 3. c. 127. s. 7.(1), for payment of

(1) "And whereas it is expedient that church-rates or chapel-rates of limited amount unduly refused or withheld, should in certain cases be more easily and speedily recovered, be it enacted, that from and after the passing of this act, if any one duly rated to a church-rate or chapel-rate, the validity whereof has not been questioned in any ecclesiastical court, shall refuse or neglect to pay the same sum at which he is so rated, it shall and may be lawful for any one Justice of the Peace of the same county, riding, city, liberty, or town corporate where the church or chapel is situated, in respect whereof such rate shall have been made, upon the complaint of any churchwarden or churchwardens, chapelwarden or chapel wardens, who ought to receive and collect the same, by warrant, under the hand and

a church-rate assessed upon him, and 17. 12s. 3d. costs.

The first count (which is alone material) was as follows:-"The jurors for our Lady the Queen upon their oath present, that after the making and passing of a certain act of parliament, made and passed in the fifty-third year of the reign of his late Majesty King George the Third, intituled, An Act for the better regulation of Ecclesiastical Courts in England, and for the more easy recovery of church-rates,' and long before and at the time of the making and allowance of the church-rate hereinafter next mentioned, one William Bidwell, of the parish of St. Botolph, in the town of Cambridge, in the county of Cambridge, shoemaker, was and yet is a parishioner and inhabitant of the said parish of St. Botolph, in the said town and county, and the occupier of a certain dwelling-house in the said parish, in the said town and county, and liable to be rated in and to the said church-rate; and that whilst he, the said William Bidwell, continued and was such parishioner, inhabitant, and occupier, and so liable as aforesaid, to wit, on the 4th of August, in the year of our Lord 1842, at the parish aforesaid, in the town and county aforesaid, a certain church-rate, intituled,

A rate or assessment of 2s. in the pound, made this 4th day of August, in the year of

seal of such Justice, to convene before any two or more such Justices of the Peace any person so refusing or neglecting to pay such rate, and to examine upon oath (which oath the said Justices are hereby empowered to administer,) into the merits of the said complaint, and by order, under their hands and seals, to direct the payment of what is due and payable in respect to such rate, so as the sum ordered and directed to be paid as aforesaid, do not exceed 10%., over and above the reasonable costs and charges to be ascertained by such Justices; and upon refusal or neglect of such party to pay according to such order, it shall and may be lawful for any one of such Justices, by warrant under his hand and seal, to levy the money thereby ordered to be paid, together with the amount of such costs and charges, by distress and sale of the goods of such offender, his executors or administrators, rendering only the overplus to him or her, the necessary charges of distraining being thereout first deducted and allowed by the said Justices; and any person finding him or herself aggrieved by any judgment given by two or more such Justices may appeal to the next General Quarter Sessions to be held for the county, riding, city, liberty, or town corporate wherein the church or chapel is situated, in respect whereof such rate shall have been made," &c.

our Lord 1842, by the churchwardens, overseers, and inhabitants of the parish of St. Botolph, in vestry assembled, for defraying the necessary expenses and disbursements, in and about the parish church, for the use of Mr. John Cole and Mr. William Alliston, churchwardens," was duly made, as by law in that behalf required, and that the same was afterwards, to wit, on the 6th of August, in the year last aforesaid, to wit, at the parish aforesaid, in the town and county aforesaid, duly allowed as by law in that behalf required; and that the validity of the said church-rate hath not been questioned in any ecclesiastical court, and that the said William Bidwell was in and by the said church-rate duly rated in and to the said church-rate at and in the sum of 16s., and that the said church-rate continues and now is in full force, validity, and effect. And the jurors aforesaid upon their oath aforesaid do further present, that afterwards, and whilst the said sum of 16s. remained due from, and unpaid by, the said W. Bidwell, to wit, on the 30th of May, in the year of our Lord 1844, William Alliston and John Hall, then and continually thence hitherto being the churchwardens of the parish aforesaid, in the town and county aforesaid, personally went before John Eaden, Esq., one of Her Majesty's Justices of the Peace in and for the borough and town corporate of Cambridge, in the said county (being the borough and town corporate where the church of the said parish of St. Botolph, in the said town and county is situated, in respect whereof the said churchrate was made as aforesaid,) and on their oaths informed the said Justice, and then on their oaths complained, and said before the said Justice, that on the said 4th of August, in the year of our Lord 1842, the said church-rate was duly made as by law in that behalf required, and that the same was, on the said 6th of August, in the year of our Lord, 1842, duly allowed as by law in that behalf required, and that the validity of the said church-rate had not been questioned in any ecclesiastical court, and that the said W. Bidwell, who before and at the time of the making and allowance of the said church-rate had been and then was a parishioner and inhabitant of, and the occupier of, a certain dwelling-house in the said parish of St. Botolph, in the said

borough and town corporate in the said county, was in and by the said church-rate duly rated in and to the said church-rate at and in the sum of 16s., and that the said sum of 16s. had been duly demanded, as by law in that behalf required of him, the said W. Bidwell, and that he had refused and neglected, and then did refuse and neglect, to pay the said sum and every part thereof to them, the said William Alliston and John Hall, who then were the churchwardens of the said parish of St. Botolph, in the said borough, town corporate and county, who by law ought to receive and collect the same, and that the said sum of 16s. and every part thereof then remained and was unpaid, and then was due and payable by and from the said W. Bidwell, for and in respect of and on account of the said churchrate, and the said William Alliston and John Hall, as such churchwardens, prayed justice in the premises, and that the said W. Bidwell might be convened before two or more of Her Majesty's Justices of the Peace of the said borough and town corporate, to answer to the said complaint, and that such order might be thereupon afterwards made in the premises, as by law in that behalf ought to be made. And the jurors aforesaid, on their oath aforesaid, do further present, that afterwards, to wit, on the said 30th day of May, in the year 1844, at the parish aforesaid, in the said borough, town corporate, and county aforesaid, the said J. Eaden then being such Justice of the Peace as aforesaid, made his certain warrant under his hand and seal, whereby, after reciting as is therein recited, he, the said J. Eaden, as and so being such Justice of the Peace as aforesaid, did require, summon, and convene the said W. Bidwell to appear before two or more of Her Majesty's Justices of the Peace, of and for the said borough and town corporate, at the guildhall of and in the said borough, on Thursday, the 6th day of June then next, at the hour of eleven in the forenoon of the same day, then and there to answer to the said information and complaint of the said William Alliston and John Hall, and to be dealt with in the premises according to law in that behalf. And the jurors aforesaid upon their oath aforesaid do further present, that the said warrant, under the hand and seal of the said J. Eaden, so being such Justice