the law on behalf of the defendant, and the act of Parliament was read to them. Lord Lyndhurst, C. B., having explained the law to them, they asked for the act of Parliament, and retired, taking it with them. They afterwards found a verdict for the defendant. On

motion for a new trial

Per Cur. The clearness of the evidence on the part of the plaintiff-there being no evidence on the defendant's side-the conduct of the jury, and their asking for and taking with them a copy of the act of Parliament, have led us to the conclusion that the verdict of the jury in this case was not founded on their opinion of the facts of the case, but upon a mistake of the law. We have conferred with the other Judges upon the subject, and they agree with us, that, under such circumstances, there ought to be a new trial.

Penalty*.

See particular titles, according to subject-matter.

DAVIES v. PENTON, H. T. 1827. K. B. 6 B. & C. 216.

DECLARATION on articles of agreement for the goodwill, &c., of A penalty is not the business of surgeon, &c., in consideration of a certain sum paid, the subject of a and of two bills of exchange payable at twelve months' date, accepted set-offt. by the plaintiff, and covenant by the defendant not to practise within certain limits, for true performance of which agreement each bound himself to the other in the penal sum of 500l., as and by way of liquidated damages; and breach that defendant had practised within &c.; to which the defendant pleaded, as a set-off as to part, the non-payment by the plaintiff of the bill of exchange, whereby the said sum of 5007. became due and payable to defendant; replication, as to such part of the set-off, that plaintiff became bankrupt, and obtained his certificate, and demurrer thereto.

The Court held, that, looking to all parts of the instrument, the said sum of 500l. was clearly intended as a penalty to secure such damages as the party injured ought to receive, and not therefore

* After an action for penalties had been commenced, under 37 Geo. 3, c. 90, 8. 27, against an attorney for not having his name inrolled with the Prothonotary, the Court refused to allow it to be entered nunc pro tunc; and an amendment of the declaration also refused, the action, although within the letter, not being within the spirit of the act. (Swift, Ex parte, E. T. 1835, C. P., 3 D. P. C. 636). Where, in a penal action, counsel are regularly retained, the plaintiff cannot himself interpose and claim to be nonsuited. (Marks v. Benjamin, 1837, N. P., 2 Moo. & Rob. 225).

† Only one penalty can be recovered against the same party under 6 Geo. 4, c. 16, s. 120, though there may be different acts of concealment, and different acts may be given in evidence under one count. (Brook v. Glencross, 1836, N. P., 2 M. & Rob. 62).

By the New Beer Act, 1 Will. 4, c. 64, s. 15, penalties are recoverable upon the information of any person before two justices, acting in petty sessions in and for the division or place in which the house is situated when the offence was committed. (Reg. v. Rawlins, 1839, N. P., 8 C. & P. 439).

A sum cannot be treated as liquidated damages where it is applicable to the breach of different stipulations of different degrees of importance. (Boys v. Ancell, M. T. 1838, C. P., 5 Bing. N. S. 390; S. C. 7 Scott, 364).

the subject of set-off; and although it appeared upon the other parts of the record, that the plaintiff's assignees were entitled to the benefit of the contract, yet that the Court can only look to that part of the record upon which the demurrer arises.

Performance

cannot be presumed, even after twenty

years.

Performance.

See particular titles, according to subject-matter.

SIBONI v. KIRKMAN, E. T. 1836. Ex. 1 M. & W. 418.

THE plaintiff, on going abroad, agreed with the defendant's testator to sell an instrument at a given price, which was acknow ledged, and to be taken as part of the price of another instrument, to be made for him on his return, which he did not until a lapse of twenty years, and after the death of the party; the defendant, in an action on the agreement, pleaded a performance and acceptance of an instrument in satisfaction; the Judge having directed the jury, that, after such a lapse of time, performance might be presumed-

The Court granted a new trial for the jury to say, whether they found the contract alleged in the plea or not. Upon a second trial, no evidence being offered to prove the plea, and the jury having found for the plaintiff, the Court refused a rule in arrest of judg

ment.

Perjury.

I. RELATIVE TO WHAT AMOUNTS TO, AND BY
WHOM COMMITTED, p. 147.

II. RELATIVE TO THE COURT IN WHICH THE OF-
FENCE IS TRIABLE, p. 147.

III. RELATIVE TO THE INDICTMENT, p. 148.

IV. RELATIVE TO THE EVIDENCE, p. 150.

V. RELATIVE TO WITNESSES, p. 152.

VI. RELATIVE TO THE TRIAL, p. 152.

VII. RELATIVE TO COSTS, p. 153.

VIII. RELATIVE TO NEW TRIALS, p. 153.

IX. RELATIVE TO THE REMOVAL OF, INDICTMENT

FOR, p. 153.

I. RELATIVE TO WHAT AMOUNTS TO, AND BY WHOM COMMITTED*.

II. RELATIVE TO THE COURT IN WHICH THE OFFENCE IS TRIABLE +.

* A party filing a bill for an injunction, and making an affidavit of matters material to it, may be indicted for perjury committed in that affidavit, though no motion is ever made for an injunction. (Rex v. White, M. T. 1829, N. P., 1 M. & M. 271).

In an answer in Chancery to a bill filed against the defendant for the specific performance of an agreement relating to the purchase of land, the defendant had relied on the Statute of Frauds, (the agreement not being in writing), and had also denied having entered into any such agreement. Upon this denial in his answer the defendant was indicted for perjury:-Held, that the denial of an agreement, which by the Statute of Frauds was not binding on the parties, was immaterial and irrelevant, and that the defendant was entitled to his acquittal. (Rex v. Dunston, 1824, N. P., 1 Ry. & M. 109).

Where the witness gave contradictory evidence in his deposition before the magistrate and on the trial at the sessions, on which latter the perjury was assigned:-Held, that it would not be sufficiently shewn to be false by the mere fact of his having sworn the contrary at another time; but the jury must consider whether there was such confirmatory evidence of the facts stated in the deposition as proved that given at the sessions to be false. (Rex v. Wheatland, 1838, N. P., 8 C. & P. 238).

Commissioners acting under a fiat of bankruptcy adjudicated A. a bankrupt, and afterwards B. was examined before them touching the estate of A., and gave evidence which was alleged to be false. B. being indicted for perjury, it appeared on the trial that the petitioning creditor's debt was not of sufficient amount, but it also appeared that A. owed other debts, which might have been substituted for the petitioning creditor's debt by order of the Chancellor, under sect. 18 of 6 Geo. 4, c. 16, so as to have rendered the fiat valid, but that no such order had been made:-Held, that, under these circumstances, B. could not be guilty of perjury on this his examination; (Reg. v. Evrington, 1 Car. & M. 319); but semble, that if B. had been examined by the commissioners in the preliminary proceedings before them, to ascertain whether A. should be adjudged a bankrupt or not, B. might have been guilty of perjury, even though there had been no good petitioning creditor's debt. (lb.)

An insolvent debtor, omitting to state in his schedule debts due to him, is not indictable for perjury, although he has sworn to the truth of his schedule; but he must be indicted for a misdemeanor under sect. 70 of the Insolvent Debtors' Act, 7 Geo. 4, c. 57. Perjury under sect. 70 of that act is only committed as to things falsely stated in the schedule. The form of oath at the end of an insolvent's schedule is an affidavit in writing, and may be so stated in an indictment for perjury. Debts due to the insolvent are "effects or property" within sect. 70 of the Insolvent Debtors' Act. (Rex v. Moody, M. T. 1831, N. P., 5 C. & P. 23 ; S. C. 2 M. & M. 128).

† Where issue was joined on an indictment for perjury, on an information in an inferior court, which was removed by certiorari into the King's Bench (Dublin): -Held, that, upon the construction of 17 & 18 Car. 2, c. 20, restraining the trial at Nisi Prius to issues joined in the superior Court, the Court had no jurisdiction to try such issue. (Rowe v. Rex, 7 Bli. P. C. 1; S. C. 2 Cl. & F. 43).

Where the perjury was actually committed in the Guildhall of the county of the city of N., on a trial at the sessions, holden therein :-Held, that the indictment might be preferred in the county of the city. (Rex v. Jones, 1833, N. P., 6 C. & P. 137).

The indictment

must shew that the question was material*,

and that the

defendant was sworn, and

must use the

and corrupt

ly;"

III. RELATIVE TO THE INDICTMENT.

REX V. NICHOLL, T. T. 1830. K. B. 1 B. & Ad. 21.

An indictment for perjury alleged, that the material question was, "whether, on the occasion of a certain alleged arrest, L. touched K.," and then the defendant's evidence was set out, and that L. put his arms round him, and embraced him; (innuendo) that L. had, on the occasion to which the said evidence applied," touched the person of K.

66

The Court held, that it did not sufficiently appear upon the whole statement, that the evidence was material.

REX v. STEVENS, H. T. 1826. K. B. 5 B. & C. 246. An indictment for perjury alleged only that the defendant "then and there falsely and maliciously gave false testimony."

The Court held the indictment bad for not charging that defendwords "wilfully ant swore wilfully and corruptly. A second count, alleging that, on the trial of the said H., he was found guilty by means of the "false and material testimony of the defendant in the first count mentioned;" that a new trial was granted, and that defendant, knowingly, falsely, wilfully, and corruptly made an affidavit that the evidence given by him on the trial of the said H. was true, "whereas it was false in the particulars in the first count mentioned and set forth:"-Held also bad, there being no distinct averment that the defendant was sworn as a witness, or of what he swore, but that that fact could only be taken by intendment.

but need not state official situation of the

REX v. CALLANAN, M. T. 1826. K. B. 6 B. & C. 102. ON an indictment for perjury in an affidavit sworn before a commission

The Court held, first, that it was not a fatal variance that, in the

*There had been an information on the New Beer Act, 1 Will. 4, c. 64; on an indictment for perjury, alleged to have been committed on the hearing of such an information, it is necessary to aver that the justices were acting in and for the division or place in which the house is situated; but it is not necessary to aver that they were acting in petty session, as every meeting of two justices in any place for business is itself a petty session. (Reg. v. Rawlins, 1838, C. C. C., 8 C. & P. 439).

An indictment, charging an insolvent with perjury as to his schedule, containing a "full, true, and perfect account of all debts," &c., merely negativing that the said schedule did not contain a full, true, and perfect account, &c., without specifying any debts omitted:-Held too indefinite, and ordered to be struck out of the list, the learned Judge saying he would take no notice of such a record. (Rex v. Hepper, H. T. 1825, N. P., 1 Ry. & M. 210; S. C. 1 C. & P. 608). So, where the indictment for perjury on a charge of felony merely stated, that the defendant went before justices, and deposed (setting out the deposition of the party having done so, amounting to felony), and assigning perjury therein, but there was no allegation that any charge of felony had been made, or any judicial proceeding pending before the justices:-Held bad. (Reg. v. Pearson, 1837, N. P., 8 C. & P. 119).

Amendments under 9 Geo. 4, c. 15, should be very sparingly made in criminal cases. An indictment for perjury, assigned on an affidavit made for the purpose of setting aside a judgment signed since the Rule of H. T., 4 Will. 4, alleged that the judgment was entered up "in or as of" Trinity Term, 5 Will. 4:—Held, that this was bad, and the Judge would not amend it under the stat. 9 Geo. 4, c. 15. (Rex v. Cooke, 1836, N. P., 7 C. & P. 559).

indictment, the matters were set out as continuous, being separated party before by other matters in the affidavit, the 23 Geo. 2, c. 11, requiring, in whom sworn. such indictments, only the substance of the offence charged to be set out; and secondly, that it need not state the official situation of the party before whom sworn, but that it was sufficient to state the name of the person or Court before whom sworn.

REX v. DUDMAN, M. T. 1825. K. B. 4 B. & C. 850; S. C. 6 D. & R. 324.

An indictment for perjury, on a petition before the Chancellor, stated that, at the several meetings before the commission, the petitioner declared &c., and on production of the petition at the trial the allegation appeared to be that, at the several meetings before the commissioners, &c.

The Court held, that it being sufficient if the petition were set out truly in substance and effect, and the word "commission" being of equivocal meaning, and might be used to denote either a trust or authority exercised, or the persons by whom it was exercised, or the instrument by which it was exercised; and as it could only be consistent with the previous allegations of the indictment by construing it to denote the persons to whom the authority was given, the Court would do so, and that there was no variance.

REG. v. VIRRIER, T. T. 1840. Q. B. 4 P. & D. 161.

And stating a

document truly in substance and effect is no

variance*.

AN indictment for perjury before an election committee, on a And the indictpetition for bribery, stated that B. and C., at a stated time, went to ment is suffici

* An indictment for perjury, in setting out the record of a conviction at the Middlesex sessions, stated an adjournment to have been made by Const, Esq., and A., B., C., and D., and others, their fellows, &c., justices. An examined copy of the record of conviction, when produced, stated the adjournment to have been made by - Const, Esq., and E., F., G., and others, &c.:-Held, that this defect might be cured by parol evidence of an adjournment made by the persons named in the indictment:-Held, also, that, no such evidence being given, the variance was fatal. (Rex v. Bellamy, M. T. 1824, N. P., 1 Ry. & M. 171). So, if A. be indicted for perjury, in swearing that he did not enter into a verbal agreement with B. and C. for them to become joint dealers and co-partners in the trade or business of druggists; and it appeared that, in fact, B. was a druggist keeping a shop with which A. had nothing to do, but that A. and C., being sworn brokers, could not trade, and therefore made speculations in drugs in B.'s name, with his consent, he agreeing to divide profits and loss with A. and C.; this will not support the indictment, as this is not the sort of partnership denied by B. upon oath. (Rex v. Tucker, M. T. 1826, N. P., 2 C. & P. 500). But where, in an indictment for perjury alleged to have been committed by the defendant, as a witness in a civil action, it appeared that the evidence given on that trial by the defendant contained all the matter charged as perjury; but other statements, not varying in the sense, intervened between the matters set out:-Held to be no variance, although in the indictment evidence appeared to have been given continuously. (Rex v. Solomon, 1825, N. P., 1 Ry. & M. 252). So, where the indictment alleged that the defendant swore to certain facts; but it appeared in evidence that the wife in the first instance deposed to the facts of an assault in a certain information, to which the defendant afterwards added his deposition that A. B. was one of the persons who assaulted, &c. :-Held no variance, it being sufficient that what the defendant swore was set out in substance. (Rex v. Grindall, H. T. 1827, N. P., 2 C. & P. 563). And upon an indictment for perjury, alleged to have been committed on the trial of a cause before one of the Judges of the Court of King's Bench, without prout patet per recordum, it is no variance that the postea alleges the trial to have taken place before the Lord Chief Justice, the cause having, in fact, been tried before the Judge specified. (Rex v. Coppard, M. T. 1827, N. P., 1 M. & M. 118).