« ForrigeFortsett »
COURT OF QUEEN'S BENCH.
January 26, 1849.
DRURY AND OTHERS V. THE QUEEN.
years what hurt ougcord tot
Reversal of judgment upon indictment-Sending back the record
11 & 12 Vict. c. 78, s. 5. The recent statute 11 g. 22 Vict. c. 78, s. 5, does not apply to cases which
occurred before it came into operation, so as to authorize the court, upon the reversal of an erroneous judgment pronounced upon an indictment before the statute passed, to send back the record that the proper judgment
may be passed. DRURY ERROR upon a judgment of transportation for ten years pro
nounced at a Court of Oyer and Terminer and General Ĝaol The QUEBN. Delivery, held at York, upon an indictment for breaking machinery, Stat. 11 & 12 under 7 & 8 Geo. 4, c. 30, s. 4. Vict. c. 78, s. 5. Bliss for the plaintiff in error.
Hall for the Crown.-It must be admitted that the sentence Argument for passed was erroneous; the section of the act of Parliament only authe Crown.
thorizes transportation for seven years; and the judgment therefore must be reversed. The question is, what is to be done with the prisoners; and it is submitted that the court ought to pronounce the proper sentence or to send back the record to the court below, in order that that court may pronounce it. That is the effect of the new stat. 11 & 12 Vict. c. 78, s, 5 ; which enacts “ that whenever any writ of error shall be brought upon any judgment on any indictment, information, presentment, or inquisition, in any criminal case, and the court of error shall reverse the judg. ment, it shall be competent for such court of error either to pro-, nounce the proper judgment or to remit the record to the court below, in order that such court may pronounce the proper judgment upon such indictment, information, presentment, or inquisition.” It is true that the sentence in the present case was passed before that statute came into operation; and that since the time of Lord Coke (a) there have been several cases, in which it was held that this could not be done (Rex v. Ellis, 5 B. & C. 395; Rex. v. Bourne, 7 Add. & Ell. 58), but that upon the reversal of the judgment the defendants must be discharged; but the effect of the recent statute is to destroy the authority of those cases, which are now no longer binding on the court; for the statute professes to give the court no new power; but implies that the law was before
(a) See 3 Inst. 210.
a say that in thine law, this case wocame into macet. 2:78, .5
the statute different from what it was supposed to be. [COLE- Deure RIDGE, J.-—Then you say that in this respect the statute is only
THE QUEEN. declaratory.) Yes; if it altered the law, this case would not be." within it, because the sentence was passed before it came into Stat. 11 | 12 operation. [COLERIDGE, J.—The words are “it shall be com. Vict. c. 78, s. 5 petent” for the court to pronounce the proper judgment or to remit to the court below. Surely they are sufficient to give a new power.] The meaning is, that the court may now either pronounce the proper judgment or remit the record, whereas, before the statute the court could only remit the record. Therefore, perhaps, the court cannot in this case pass the proper sentence; but it may remit the record to the court below. The statute implies that a judgment for the plaintiff in error upon an indictment reverses the judgment only, if, as in the present case, the proceedings previous to judgment are valid. In that way it is that the statute over- Ar ument for rules the authority of Lord Coke, and the decisions founded upon the Crowa. it, for Lord Coke thought that, not only the judgment, but "all former proceedings” should be reversed. That now appears to have been erroneous : and the court can no longer act upon it. They will therefore remit this record, that the proper sentence may be passed.
LORD DENMAN, C. J.-We cannot come to that conclusion in the face of so many authorities. Since the case of R. v. Ellis, this question has been quite settled, and the judgment therefore in this case will be reversed ; and as to this judgment the prisoners must be discharged.
February 7, 1849.
(Coram PARKE, B., COLTMAN, J., ROLFE, B., CRESSWELL, J., and
V. WILLIAMS, J.
Perjury—Indictment- Materiality of dates laid under videlicit-Jurisdic
tion of judges-Taxation of attorney's bill-Misdemeanor — Nomen col
An indictment for perjury committed in an affidavit sworn in answer
to an application by an attorney for taxation of his bill of costs averred that the application of the attorney was made after the expiration of “one month” from the delivery of the bill of costs—the dates of the application and of the delivery of the bill were laid under a videlicet ; but if taken to be correct, they showed that more than a calendar month had elapsed between the delivery of the bill and the
application. Held, that (assuming month to mean lunar month, and that the judge
would have no jurisdiction unless a calendar month had elapsed) in order to support the indictment the videlicet must be rejected, and the
dates assumed to be correct. But, semble, that the jurisdiction of the judge to issue the summons
sufficiently appeared, without showing that a calendar month had
elapsed. “ Misdemeanor" is nomen collectivum ; and therefore where an indict
ment contained several counts, and the venue was to try " whether the said R. be guilty of the perjury and misdemeanor aforesaid or not guilty; and the verdict was “guilty of the perjury and misdemeanor aforesaid, in manner and form as by the said indictment is supposed
against him.” Held, that they applied to all the counts, and that a general judgment of
imprisonment was good. PRROR from the Queen's Bench, upon a judgment proU nounced upon a writ of error brought to that court upon the following record :
Yorkshire, to wit: Be it remembered, that at the Special General Session of Gaol Delivery and Oyer and Terminer, holden at York, &c., on Saturday, the 6th day of December, in the 9th year of the reign of Queen Victoria, &c., by the oath of, &c., it is presented that one William Unwin, after the passing of a certain act of Parliament, &c. (6 & 7 Vict. c. 73), and before and at the time of the committing of the offence hereinafter mentioned, was an attorney practising in England, and was duly admitted and practising as
(a) Reported by A. BITTLLATOX, Esq., Barrister-at-Lav.
such attorney in Her Majesty's Court of Exchequer at West- RYALLS minster, and had done and transacted business as such attorney in
THE QUEEN. Her said Majesty's Court of Exchequer for and on behalf of J. N. Ryalls, late of, &c., and of J. Ironsides, and on the re- Perjury. tainer, and at the request of the said J. N. Ryalls; and the said J. N. R. and J. I. then and there became and were indebted in a large sum of money to the said W. Unwin, for fees, charges, and disbursements for the business so done and transacted for the said J. N. Ryalls and the said J. Ironsides, by the said W. Unwin as aforesaid, and the said W. Unwin afterwards and before the committing of the said offence hereinafter mentioned, to wit, on the 7th day of August, A.D. 1844, so being such attorney as aforesaid, did deliver to thesaid J.N. Ryalls and the said J. Ironsides (they the said J.N. Ryalls and the said J. Ironsides, then and there being the parties to be charged therewith), a bill for the fees, charges, and disbursements for the said business so done and transacted by the said W. Unwin, as such attorney as aforesaid, which said bill was then and there subscribed with the proper handwriting of him the said W. Unwin, so being such attorney as aforesaid ; and that no application was made to the said Court of Exchequer, so being the court in which the said business was so done and transacted as aforesaid, or to any judge thereof, or to any court or judge whatever, by the said J. N. Ryalls and the said J. Ironsides, so being the parties charged by the said bill, or by either of them, within Indictment. one month after the said delivery of the said bill, nor did the Court of Exchequer, &c., within one month, &c., refer the said bill and the demand of the said W. Unwin as such attorney as aforesaid thereupon, to be taxed by the proper or any officer of the said Court of Exchequer, or any other court. And by the jurors aforesaid upon their oath aforesaid, it is further presented, that afterwards and after the expiration of one month after the delivery of the said bill as aforesaid, and before the committing of the said offence hereinafter mentioned, to wit, on the 25th day of April, A.D. 1845, at, &c., the said W. Unwin so being such attorney as aforesaid (the said bill then and there remaining due, unpaid, and unsatisfied, to him the said W. Unwin), did make application to Sir R. M. Rolfe, Knt., then and there being one of the judges of the said Court of Exchequer, in which the said business was so done and transacted by the said W. Unwin as aforesaid, in the matter of him the said W. Unwin to refer the said bill so delivered as aforesaid, and the demand of him the said W. Unwin thereupon, to be taxed and settled by the proper officer of the said Court of Exchequer. And thereupon afterwards, to wit, on, &c., at, &c., the said Sir R. M. Rolfe, so being the judge of the said Court of Exchequer as aforesaid, issued a summons in the matter of the said W. Unwin, requiring the said J. Ironsides, and the said J. N. Ryalls, or their attorney or agent, to attend the said Sir R. M. Rolfe, at his chambers in Rolls-gardens, on, &c., to show cause why (amongst other things) the said W. Unwin's bill of costs in the causes and matters delivered to the said J. Ironsides,
rges, and the said W. W.Unwin as ad, it is furt
RYALLS and J. N. Ryalls should not be referred to the Master of the said
Court of Exchequer, to be taxed (the said bill of costs in the
said summons mentioned, then and there being the said bill for Perjury.
the fees, charges, and disbursements for the said business so done and transacted by the said W. Unwin, as such attorney as aforesaid, and so delivered by the said W. Unwin as aforesaid.)
And by the jurors aforesaid, upon their oath aforesaid, it is further presented that the said J. N. Ryalls, afterwards and before the time appointed for showing cause, and before showing cause against the said application, and the said matter mentioned in the said summons, to wit, on, &c., at, &c., came before H. W., then and there being a commissioner duly authorised and appointed to take and receive affidavits touching and concerning matters depending in the said Court of Exchequer, and touching and concerning the matter of the said W. Unwin, in the said summons mentioned : and it then and there became and was material in sbowing cause why the said bill of costs, in the said summons mentioned, should not be referred to the said Master to be taxed as in the summons mentioned, to ascertain whether the said J. N. Ryalls did retain or employ, or otherwise authorize the said W. Unwin, to act as attorney for him the said J. N. Ryalls, and the said J. Ironsides, or for either of them, in or about the business
mentioned in the said bill of costs of the said W. Unwin, in the Indictment.
said summons mentioned, or in or about any part of such business, and whether the said J. N. Ryalls had ever retained or employed the said W. Unwin to act as attorney or agent for him the said J. N. Ryalls. And the said J. N. Ryalls so having come, and being before the said H. W., so being such commissioner so authorized and appointed as aforesaid, then and there produced a certain affidavit, in writing, of him the said J. N. Ryalls, in the matter of the said W. Unwin, in the said Court of Exchequer, and then and there before the said H. W. in due form of law was sworn and took his corporal oath upon the Holy Gospel of God, concerning the truth of the matters contained in the said affidavit (he the said H. W. then and there having a lawful and competent power and authority to administer the said oath to the said J. N. Ryalls in that behalf); and that the said J. N. Ryalls, not having the fear of God before his eyes, but intending to cheat and defraud the said W. Unwin ofthesaid fees, charges, and disbursements, then and there, upon his oath aforesaid, before the said H. W. (he the said H. W., then and there having a lawful and competent power and authority to administer the said oath to the said J. N. Ryalls in that behalf), falsely, corruptly, knowingly, wilfully, and maliciously, in and by his said affidavit in writing in the matter of the said W. Unwin, in the said Court of Exchequer, did depose and swear (amongst other things) in substance and to the effect following, that is to say, that he, the said J. N. Ryalls referred to in the summons of the Honourable Baron Rolfe in that matter (meaning the summons of Sir R. M. Rolfe, Knt., in the said matter of the said W. Unwin, above-mentioned), did not retain or employ the