Pashley. Then at all events the materiality ought to be sufficiently averred, and it is not so. The indictment alleges merely that it became material in showing cause against the summons to ascertain whether the said J. N. R. did retain the said W. U.; but it does not state that the affidavit was made for the purpose of showing cause, or was used in showing cause. In Reg. v. Goodfellow (Car. & M. 569), it was held that an averment that "it became and was material to ascertain the truth of the matter hereinafter alleged to have been sworn to," is not a good averment of materiality; (Reg v. Hewins, 9 Car. & P. 786.) Fourthly, the verdict and judgment do not show on which of the counts they proceed. The verdict is "guilty of the perjury and misdemeanor aforesaid ;" and the judgment is "upon the premises," that is, upon the four separate charges in the indictment; but the verdict either refers to the last count only, or it is uncertain to which it refers; and in either case the judgment is bad. But for the case of Rex v. Powell (2 B. & Ad. 75), it never could be contended that the terms "the perjury and misdemeanor aforesaid" could apply to four separate offences. It was said in that case that "misdemeanor" is nomen collectivum; but surely felony" is much more so; if any distinct idea is conveyed by the expression nomen collectivum. Yet the court, in Campbell v. The Queen (15 L. J. M. C. 76; 1 Cox Crim. Cas. 269), held "felony " not to be nomen collectivum; and in O'Connell v. The Queen (11 C. & F. 155), great doubt has been thrown upon the authority of that case; which is to some extent expressly overruled. (He referred to the judgments of Lord Lyndhurst, 11 C. & F. 316; and of Parke, B. p. 295.) The case here is as if the several counts charged entirely separate and distinct offences. Campbell v. Reginum, cited suprà; Rex v. Ward (2 Lord Raym. 1461, 1469); and Rex v. Salomons (1 T. R. 249), show that if two distinct offences are charged a conviction of "the said offence" is bad.

PATTESON, J.-The ground of the decision in Rex v. Powell (and I am the only survivor of those who pronounced it) was simply that misdemeanor was nomen collectivum; as soon as that was decided the case was at an end; because it was not contended there, either that the two counts were for the same offence, nor disputed that one good count would support a judgment. The latter point is now decided by O'Connell's case; and if misdemeanor is nomen collectivum, and the last count is bad, then the judgment is bad; or if misdemeanor is not nomen collectivum, then the judgment applying to the last count only will be bad if that count is bad.

Pashley. The judgment must at all events be reversed, because it is uncertain; there is no certain judgment on any one

count.

COLERIDGE, J.-That depends upon the question whether misdemeanor is nomen collectivum.

Pashley. The words are "the perjury and misdemeanor; which cannot mean several perjuries and misdemeanors. There

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is a series of blunders in the proceeding. The plea is to all the premises; the verdict is guilty of one only; and then the judgment is given upon that verdict, and the premises generally. Lastly, the conclusion of the indictment is wrong. It is in the past Perjury. instead of the present tense (Rex v. Perin, 2 Saund. 393; Reg. v. Allway, 1 Vent. 170); and the conclusion of an indictment is material and cannot be rejected as surplusage: (Heydon's case, 4 Rep. 41, a, 42, b; Rex v. Bromley, 1 Vent. 13.)

Bliss, contra.- -Between this case and that of OConnell v. Reg. there is a material distinction; so that if it be held that there is one bad count in the indictment, and that misdemeanor is not nomen collectivum, the court will then have to consider whether that case is to be carried any further. In that case the judgment

"

"for his offences aforesaid," and Baron Parke said, "Two modes suggested themselves to me, by which this apparent error could be rectified. The first is, that the Court of Error is to presume that the court below has given judgment on those counts of the indictment only on which it was warranted to give judgment; viz., on the good counts with sufficient findings thereon. The second, that the judgment may be read as one of the same imprisonment, and the same fine for each offence. To the first of these modes of supporting the judgment there are two objections; one that the supposition does not accord with the terms of the judgment. If the judgment had been general, therefore it is considered that the defendant be imprisoned,'-this objection would not have been of weight; but it is that he be imprisoned for his offences aforesaid,' that is all the offences;" and Lord Campbell, in delivering his judgment, said, "Then can the general judgment stand professing to proceed on the bad counts and the bad findings as well as on the other good counts and good findings? Agreeing with Mr. Baron Parke and Mr. Justice Coltman, my opinion is, that part of the punishment must be taken to be awarded in respect of the supposed offences charged in the 6th and 7th counts, which do not amount to offences in point of law for which the defendants are answerable, and part in respect of the offences duly charged in the 1st, 2nd, and 3rd counts, of which they have not lawfully been found guilty. This is clearly the language of the record, to which faith must be given. After setting forth the eleven counts of the indictment, with the findings upon each, repeating in so many words the charges in the first three counts, it thus proceeds: Whereupon, &c., it is considered and adjudged by the said court here that the said defendant, for his offences aforesaid, do pay a fine, &c.' There is no nolle prosequi as to the bad counts, and nothing to prevent the judgment from applying to the defective findings, or the counts on which there was no lawful verdict; because all the counts and all the findings were believed in the court below to be sufficient. Therefore, according to the plain use of language and the common sense of mankind, by this judgment the defendants are punished for charges which do not amount to crimes in the eye of the law, and for crimes of

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Perjury.

Jurisdiction.

Aforesaid."

رو

which they have not been lawfully convicted." This judgment
therefore, is different in form from that adopted in O'Connell's
case; and whether misdemeanor be nomen collectivum or not, the
judgment may stand. If it be held that "the perjury and mis-
demeanor" applies to one offence only, still the judgment is good;
because only one offence appears. Looking at the different counts
of the indictment, they refer to the same fact differently charged;
and that does not vitiate the indictment. But "misdemeanor
is nomen collectivum, and applies to all the counts. Secondly, the
jurisdiction to administer the oath sufficiently appears. This does
not depend merely on the common law; for the 23 Geo. 2, c. 11,
applies; and that renders it sufficient to set forth the substance of
the offence. If therefore it appears that the oath was administered
in the course of a judicial proceeding, the indictment is good.
The ordinary precedents do not show jurisdiction, They state
merely "that an indictment for felony was pending," or "that a
certain issue came on to be tried;" or "that a rule of court was
granted to show cause, &c. ;" and it is not necessary to show the
commission; it is enough to allege the authority. In Rex v. Dowlin
(5 T. R. 311, 317), Lord Kenyon said that it was not necessary for
the prosecutor to set out in the indictment the commission at the
Admiralty. In this case, however, if it were necessary to show
the jurisdiction, it is sufficiently shown. It is clear that at the
least the judge had jurisdiction to enter upon the inquiry,-he
had jurisdiction to refuse to make the order; and here the rule is
applicable that nothing shall be intended against the jurisdiction
of a superior court. But the stat 23 Geo. 2, c. 11, gives another
answer; because that statute does away with the necessity of
stating more than the application, or rather so much of it as may
be necessary to show that the oath was administered in the course
of a judicial proceeding. It is said that a certain fact ought to
have been negatived; but if it had been negatived, how would
that have shown jurisdiction? The jurisdiction must depend upon
the application stated to the judge; and by the statute it is not
necessary to set that out. Rex. v. Smith was the case of an
inferior court, the authority of which it was necessary to show.
Rex v. Jones (4 B. & Ad. 345), was an indictment for conspiracy,
not perjury. The cases of Rex v. Punshon (3 Campb. 96): Reg.
v. Ewington (2 Moo. C. C. 223; Car. & M. 319); and Reg. v.
Bishop (Car. & M. 302), were questions of evidence not arising
on the record; and they are therefore no authority against the
crown on the present occasion. As to the materiality of the false

statement

LORD DENMAN, C. J.-We are all clearly of opinion that if there was jurisdiction, the question was material.

Bliss.-Then, as to the judgment, it is free from the objection of uncertainty; because the words "perjury and misdemeanor aforesaid " mean "last aforesaid ;" and the sentence is warranted by the last count. In Campbell v. Reginam (15 L. J. M. C. 76 ; 1 Cox C. C. 269), the difficulty arose because the last count did

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not warrant the judgment. There are many authorities which show that the word "aforesaid " refers to the last antecedent. In Rex v. Richards (1 M. & Rob. 177), on an indictment alleging a dwelling-house to be "situate at the parish aforesaid," it was held Perjury. that the parish last mentioned must be intended. Reg v. Rhodes (2 Ld. Raym. 886); Sutton v. Fenn (3 Wils. 339; S. C. Blackst. 848); Morgan's case (Cro. El. 101); Childe v. Towers (ib. 311); Ross v. Morris (ib. 436), (a) are to the same effect. So that the effect of this record is, that though the defendant pleaded to the whole indictment, he is found guilty on the last count only.

PATTESON, J.-According to your construction, this record shows a plea to the whole; but a venire juratores to try the last count only.

19 nor nomen

Bliss.-The jury may not have been charged to inquire of the remainder; and in the award of the venire it is unnecessary to specify what the jury are to try,-it is usually inserted; but it is mere surplusage,—an old form which is a relique of the practice of summoning the jury from the visne, on account of their personal knowledge of the facts. Indeed, no award of a venire is necessary at all; it is altogether surplusage. The justices of goal delivery have authority to summon a jnry; and if it appears that a jury came under that authority, the judgment may be sustained; but usually the record is made up as of a proceeding under both commissions, that of oyer and terminer and that of gaol delivery. In "Misdemeathe next place, assuming that the court should not construe collectivum. "aforesaid" to mean "last aforesaid," it is submitted that "misdemeanor" is nomen collectivum. The authority of Rex v. Powell (2 B. & Ad. 75), unreversed by O'Connell v. Reginam, is express upon the point; and the question is concluded. A judicial decision on the meaning of a particular term of art, as "misdemeanor" is, removes all further inquiry. It is nomen collectivum, because it has been so decided ; and it is no answer to say that "felony" is not nomen collectivum; as the court decided in Campbell v. The Queen. The jury have also given that meaning to the term, for they say that the defendant is guilty of the perjury and misdemeanor aforesaid in manner and form as by the said indictment is supposed, that is, by the whole indictment, not merely a part of it. Modo et formá makes the general traverse apply to the whole of the allegation involved therein: (Weathrell v. Howard, 3 Bing. 135.) If the word "aforesaid" does not restrict the verdict to the last count, what does it refer to? Clearly to the whole indictment. Lastly, as to the conclusion of the indictment, although the past tense is used, the words at the commencement "it is presented, &c," control the whole; and "where matter is nonsense by being contradictory and repugnant to somewhat precedent; there the precedent matter, which is sense, shall not be defeated by the repugnancy which follows; but that which is contradictory shall be rejected:" (per Lord Holt in Wyatt v. Aland, Salk. 325; and Rex v. Stevens, 5 Hast, 244,255.) (a) See Bishop v Grant, Cro. El. 324.

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Perjury.

Here therefore the words "and the jurors did say," or the word "did," may be rejected, in order to remove the contradiction. The whole conclusion, however, is surplusage, and may on that ground be rejected. This conclusion is necessary in murder; because murder is a term of art, which must be used in an indictment for murder, and which never appears in any other part of the indictment. Here it is a mere conclusion of law.

LORD DEN MAN, C. J.-Is not perjury as much a term of art as murder?

Bliss.-In Hawk. P. C. lib. 2, c. 23, s. 77, the various terms of art are mentioned, and perjury is not one of them.

COLERIDGE, J.-Is not the punishment in this case one imposed by statute alone; and must there not therefore be the conclusion contra formam statuti? (a)

Bliss. If that be so, all the rest of the conclusion may be rejected, excepting the usual form contra pacem et contra formam statuti.

Pashley, in reply.-The defendant is entitled to require that judgment should be entered separately on each count; as otherwise he could not avail himself of a pardon granted as to one of them. Notwithstanding the stat. 23 Geo. 2, c. 11, jurisdiction must be shown: (Reg. v. Overton, 4 Q. B. 83).

PATTESON, J.-That case proceeded on the ground that the oath must appear to be administered in the course of a judicial proceeding.

Pashley. Supposing an affidavit appeared to have been sworn in a quare impedit in the Queen's Bench,-it is clear that perjury would not lie upon it; because the whole proceeding would be coram non judice. When a judge, even of the superior courts, is exercising a special statutory jurisdiction, no intendment is to be made in favour of his jurisdiction in any particular case, any more than in the case of a justice of the peace or other inferior judge. Although the question in Rex v. Punshon arose upon the evidence, it is in point to show what averments are necessary on the record; and, in Ewington's case, it is clear that the decision proceeded upon the form of the indictment. Upon the effect of the word aforesaid," Reg. v. Rhodes (2 Ld. Raym. 886), is in favour of the defendant. So is the case of Brancker v. Molyneux (1 Man. & G. 710,727), as to the words "last mentioned." (He also referred to 2 Hale's P. C. 180.) The finding of the jury cannot be construed to apply to one count only; because they could not be discharged from finding a verdict on the other counts. If that appeared on the record, it would error: (Conway & Lynch v. Reginam, 7 Ir. Law Rep. 149). As to the last point, the word "did" cannot be rejected; because its rejection would alter the sense; and there is no positive repugnancy.

COLERIDGE, J.-If the sense may not be altered, of what use is the rejection?

Pashley. It can only be done where the repugnancy destroys (a) See contrà, Williams v. Reg. 7 Q. B. 250.