was lost, and secondary evidence of it was given by producing the register of parish apprentices kept under 42 Geo. 3. c. 46, which contained an entry of the assent of two Justices to the binding. The Sessions found that the Justices had allowed an indenture which recited an order for binding. But this Court held that there was no legal evidence of the order.

[COLERIDGE, J.-This indenture, to which the appellant parish is a party, recites the order. Is not that evidence against them?] The presumption omnia esse rite acta does not apply until jurisdiction is shewn. Here the order was the foundation of the authority to the Justices to allow the indenture. Lastly, the Justices do not appear to have allowed the indenture within their jurisdiction. Allowance of an indenture of apprenticeship is a judicial act, and must be exercised within the county for which the Justices act. Here, the allowance only purports to be by Justices for, not in the West Riding The Queen v. Stockton-upon-Tees (7). This being a statutable authority, all things essential to the proper performance of that authority must distinctly appear→→→→ The King v. Austrey (8).

Pickering and Pashley, contrà.-First, this indenture was executed by the proper authorities. Forster states he was churchwarden of the township, and The King v. Hinckley is therefore directly in point. 54 Geo. 3. c. 107. s. 2. affords a complete answer to this objection. It cannot be presumed that more than one of the overseers was alive at the time. The King v. Earl Shilton (9), The King v. Catesby, The King v. St. Margaret's, Leicester (10) are in point. The Queen v. the Justices of the North Riding of Yorkshire was a case under the Poor Law Amendment Act, and only decided that a churchwarden is not virtute officii an overseer. Secondly, there was evidence before the Justices of the order for binding, on which they might act. The Queen v. East Stonehouse is not in point. There was no evidence in that case order was made; whereas here, the recital is good secondary evidence

that

any

of the fact, the original having been searched for and not found in the chest of the township, as is plainly the case from Forster's statement of finding the indenture there. At all events, the sufficiency of the search is a question peculiarly for the Sessions, and this Court will not entertain that question (11).

[LORD DENMAN, C.J.-We agree with you as to that.]

Until the contrary is proved, it will be presumed that there was an order for binding, as is the case with regard to notice to be given to the parish to which the child is bound-The King v. Whiston (12), The King v. Witney (13).

[PATTESON, J.-If the allowance is a mere ministerial act, as you must contend it is, then the order becomes more important, and ought to be properly accounted for.]

Lastly, the allowance is sufficient. This is said to be a judicial act, and The Queen v. Stockton-upon-Tees is cited. That case would be in point if this objection were taken to the order for binding instead of to the allowance. The present allowance is in the form always pursued. In The Queen v. Ashburton (14), the Justices described themselves merely as "Justices of the Peace."

[COLERIDGE, J.-This point was not raised there. The only objection was that they were not shewn to be the same Justices who made the order.]

At all events, it shews that intendment may be made in favour of the allowance The King v. Countesthorpe (15), The King v. Hinckley. The averment that the indenture was allowed "in pursuance of the statute" will aid-The King v. Farringdon (16). But if this is a mere ministerial act, it may be done out of the county. The order for binding is no doubt a judicial act—The King v. Hamstall Ridware (17); but the

(11) See The Queen v. Kenilworth, 7 Q.B. Rep. 642; s. c. 14 Law J. Rep. (N.s.) M.C. 160. (12) 4 Ad. & El. 607; s. c. 5 Law J. Rep. (N.S.) M.C. 67.

97.

77.

(13) 5 Ibid. 191; s. c. 5 Law J. Rep. (N.s.) M.C.

(14) 15 Law J. Rep. (N.s.) M.C. 97.

(15) 2 B. & Ad. 487; s. c. 9 Law J. Rep. M.C.

(16) 2 Term Rep. 466. (17) 3 Ibid. 380.

allowance in the case of both parishes being in the same county is merely ministerial. In the case provided for by 56 Geo. 3. c. 139. s. 2, the allowance by Justices of another county into which the child is placed have a discretion as to allowing the indenture-The King v. Mills (18). A ministerial act may be done out of the county -Bac. Abridg. 'Justices of Peace,' E, Helier v. the Hundred of Benhurst (19), Com. Dig. 'Justice of Peace,' B, 1. They also referred to The King v. All Saints, Southampton (20), The Queen v. Molesworth (21), The Queen v. Ratcliffe Culey (22), The King v. St. Mary's, Leicester (23), The Queen v. Silkstone (24), Taylor v. Clemson (25), The King v. Verelst (26).

Cur. adv. vult.

The judgment of the Court (27) was subsequently delivered by

LORD DENMAN, C.J.-In this case, the first objection of the appellants was, that the binding by an officer stated to be the churchwarden of a township and one of two overseers was not by a majority of the overseers; as the churchwarden of a township is not for all purposes an overseer of it. But a sufficient answer to this objection is to be found in the 54 Geo. 3. c. 107. s. 2, which makes indentures by the major part of the overseers and persons acting as churchwardens of a township as valid as indentures by the major part of the overseers and churchwardens of a parish. Upon this point we think the Sessions were right. The second objection of the appellants was, that the examinations were bad in not shewing the original order for binding, or search for it, so as to make secondary evidence of it admissible. But we concur with the Sessions in deciding against the objection. The recital of the order in the

(18) 2 B. & Ad. 578.

(19) Cro. Car. 211.

(20) 7 B. & C. 785; s.c. 6 Law J. Rep. M.C. 55. (21) 15 Law J. Rep. (N.s.) M.C. 108. (22) Ibid. 109.

(23) 1 B. & Ald. 327.

(24) 2 Q.B. Rep. 520; s. c. 12 Law J. Rep. (N.S.) M.C. 5.

(25) Ibid. 987; s. c. 11 Law J. Rep. (N.s.) Exch. 447.

(26) 3 Campb. 432.

(27) Lord Denman, C.J., Patteson, J., Coleridge, J. and Erle, J.

indenture certified by the allowance of the Justices, is in our judgment admissible as primary evidence of the order. It is made in discharge of a duty imposed by the 56 Geo. 3. c. 139. s. 1, and imposed probably for the purpose of making evidence of the order. The third objection was, that the allowance by the Justices was void, because it is not stated to be by Justices in the West Riding, but only by Justices for it. A rule has been often recognized in respect of proceedings by Magistrates requiring all the facts to be stated which are necessary to shew that a tribunal has been lawfully constituted and has jurisdiction. There is good reason for the rule where a special authority is exercised, which is out of the ordinary course of common law, and is confined to a limited locality; as in case either of warrants for arrest, commitment, or distress, or of convictions, or orders by local Magistrates. Where the duty of promptly enforcing the instrument is cast on officers of the law, and the duty of unhesitating submission on those who are to obey it, it is requisite that the instrument so to be enforced and obeyed should shew on inspection all the essentials from which such duties arise. But a certificate that an indenture is in pursuance of an order for binding has none of those incidents: effect is given to it without resort to the powers and duties above described, and the reason for an exact statement of all particulars on the instrument itself ceases. In respect of such an instrument the ordinary maxim for construing in favour of validity may well be applied; the ordinary power of proving by extrinsic evidence essential facts not expressed in the writing may be exercised: and as the act of approval is personal to the Magistrates who made the order for binding, the place where the approval is signed appears to be immaterial. In The King v. Austrey, the language of the Court overruling an objection to the allowance by two Justices of a pauper's certificate, because the parish lay in two counties, and they were Justices for one only, supports the view here taken: "The allowance of a certificate by the Justices is not, like the removal of a pauper, strictly an act of jurisdiction, although the Justices have a discretionary power to refuse or allow a certificate, yet the allowance is merely a voucher that

credence is due to the acknowledgment of the parish officers: for that purpose the Justices of either county might be supposed to have a competent knowledge of the parties." Where it appeared that the examination of a party robbed in Berkshire, had been taken by a Magistrate of Berks in the Temple, it was held valid by Judges of all the courts on the ground, that the statute did not direct an act of jurisdiction, but gave a direction as to the person who should take an examination, and it was said there was a difference where a Justice doth an act to compel another to perform, as to imprisonsuch acts cannot be done in any place but where the jurisdiction extends-but informations and some recognizances may be taken out of the county-Helier v. the Hundred of Benhurst. The examination under the Mutiny Act of a soldier for his settlement is another instrument of the same class. It is essential to its validity that the soldier should be quartered within the jurisdiction of the Magistrates taking it. But the Judges who rejected an examination for a defect on this point, both express themselves to the effect that that essential fact might be added by evidence aliunde, and it follows that in their opinion it was not necessary to expressly state it in the instrument-The King v. All Saints, Southampton. Where the jurat of a return under the Bankers Act (7 Geo. 4. c. 46. s. 5), which should be verified on oath before a Justice of the Peace, purported to be made before A, B, without stating him to be a Justice of the Peace, but extrinsic evidence of this fact was given, the Court held the return valid-Bosanquet v. Woodford (28). Many inquisitions before sheriffs and others under railway and other acts have been attempted to be impeached upon the rule above referred to, and have been decided to be valid, although essential facts were not expressly stated. The Courts have not gone upon the distinction between inquisitions, which are in effect certificates of value, and judicial orders; but these cases may well be referred to as shewing the necessity for distinguishing between instruments which differ so much in their nature -Doe d. Payne v. Bristol and Exeter

(28) 5 Q.B. Rep. 312; s.c. 13 Law J. Rep. (N.S.) Q.B. 93.

Perjury-Trial-Execution of Writ of Trial before Secondary Assignment of Perjury in respect of Matter of Belief— Materiality-Issue.

1. Where a trial has been had before the Secondary of London, it is properly described as being had before the sheriff, to whom the writ is directed.

2. Where two or more issues are joined on the record on such trial, it is properly alleged that they came on to be tried, though only one may have been tried in fact.

3. Perjury may be assigned as to what a man has sworn that he thought or believed; the difficulty, if any, being in the proof of the assignment.

4. A witness having sworn at a trial that he did not write certain words in the presence of D, it is a good assignment of perjury that he did write them in the presence of D. The presence of D. may be a fact as material as the writing of the words.

The first count of the indictment stated that on, &c. in London, in the parish of, &c. and within the jurisdiction of the said court, upon the execution of a certain writ of trial, before that time issued out of Her Majesty's Court of Common Pleas at Westminster, and directed to the sheriffs of London aforesaid, in a certain action on promises then pending in the said Court of Common Pleas, in which one James Wyld was plaintiff, and

(29) 6 Mee. & Wels. 320; s. c. 9 Law J. Rep. (N.S.) Exch. 232.

(30) 8 Ad. & El. 439; s. c. 8 Law J. Rep. (N.S.) Q.B. 69. (31) Ibid. 429; s. c. 8 Law J. Rep. (N.S.) Q.B. 64.

one Theodore Flersheim was defendant, and by which said writ the said sheriffs were commanded that they should summon twelve free and lawful men of their city, duly qualified, &c., who, &c., who should be sworn truly to try certain issues theretofore joined between the said plaintiff and the said defendant in the said action, and that they the said sheriffs should proceed to try such issues accordingly, and when the same should have been tried in manner aforesaid that they the said sheriffs should, on the 7th of December then instant, being, &c. make known to the Justices of our said Lady the Queen, at Westminster, what should have been done by virtue of the said writ, with the finding of the jury thereon indorsed, and the said issues came on to be tried, and then and there within the jurisdiction aforesaid were tried in due form of law, before William Hunter, Esq. and Thomas Sidney, Esq., then being sheriffs of London aforesaid, by a jury of the city of London aforesaid, in that behalf duly taken and sworn between the said parties: and the jurors aforesaid, upon the oath aforesaid, say that upon the said trial of the said issues, one Joseph Schlesinger, late of London aforesaid, gentleman, in his own proper person came before the said William Hunter and Thomas Sidney, then being the sheriffs of London aforesaid, and was then and there produced and examined upon the trial of the said issues, as a witness on the part and behalf of the said James Wyld and the said J. Schlesinger, before the said William Hunter and Thomas Sidney, then being such sheriffs as aforesaid, and before the jury so sworn as aforesaid did on the said trial take his corporal oath as such witness as aforesaid, that the evidence that the said J. Schlesinger should give to the Court and the jury, sworn between the parties aforesaid, touching the matters in question, should be the truth, the whole truth, and nothing but the truth, (they, the said William Hunter and Thomas Sidney, then being such sheriffs as aforesaid, then and there within the jurisdiction aforesaid, having sufficient and competent power and authority to administer the said oath to the said J. Schlesinger in that behalf); that upon the trial of the said issues so joined between the parties as aforesaid, and after the said Joseph Schlesinger was

so sworn as aforesaid, and while he was being examined as such witness as aforesaid, a certain paper writing then containing, amongst other things, the respective words written in red ink, and hereinafter in that behalf mentioned, in different parts of the said paper writing, that is to say, containing in one part the seven words following, written in red ink, that is to say, &c., was produced and shewn to the said Joseph Schlesinger; that then and there on the said trial, certain questions arose and then and there became material, that is to say, whether the said Joseph Schlesinger then thought that the said words so written in red ink as aforesaid were his the said Joseph Schlesinger's writing; and whether the said Joseph Schlesinger had, in the presence of one William Dipple, written the said words so written in red ink; that the said Joseph Schlesinger, being so sworn as aforesaid, not having the fear of God before his eyes, nor regarding the laws of this realm, but being moved and seduced, &c. and contriving, &c., unjustly to aggrieve the said Theodore Flersheim, the defendant in the said action, and to subject him to the payment of sundry heavy costs, charges and expenses, then and there, to wit, on the said 6th of December 1844, on the said trial of the said issues, upon his oath aforesaid, falsely, corruptly, &c., before the said jurors so sworn as aforesaid, and before the said William Hunter and Thomas Sidney, then being such sheriffs as aforesaid, upon his oath aforesaid, did depose and swear, amongst other things, in substance and to the effect following; that is to say, that he, the said Joseph Schlesinger, then thought that the said words so written in red ink were not his, the said J. Schlesinger's writing, and that he, the said J. Schlesinger, had not in the presence of the said W. Dipple written the said words so written in red ink ; whereas, in truth and in fact, the said words so writtten in red ink were his the said J. Schlesinger's writing; and whereas, also, in truth and in fact, the said J. Schlesinger then and there, when he so deposed as afore→ said, thought that the said words so written in red ink as aforesaid were his the said J. Schlesinger's writing; and whereas, also, in truth and in fact, at the time when he, the said J. Schlesinger, so deposed as aforesaid, he, the said J. Schlesinger, had, in the

presence of the said W. Dipple, written the words so written in red ink; that the said J. Schlesinger, on the 6th of December 1844, before the said W. Hunter and T. Sidney, so then being sheriffs of London as aforesaid, having competent power and authority to administer the said oath to the said Joseph Schlesinger as aforesaid, &c., in manner and form aforesaid, falsely, &c., did commit wilful and corrupt perjury to the great displeasure, &c., in contempt, &c., to the evil example, &c., and against the peace, &c.

There was a second count for swearing that he thought the words were not his handwriting, when, in fact, they were; and a third for swearing that he had not written the words in the presence of Dipple.

The defendant having been convicted on this indictment, at the sittings at Guildhall, after Michaelmas term, 1845, a rule nisi had been obtained by

Sir F. Thesiger (Attorney General) for a new trial or for entering an acquittal, on the ground that the trial of the cause of Wyld v. Flersheim was before the secondary of the city of London, and not before the sheriffs, and that the record shewed that one issue only was tried; or for arresting the judgment, on the ground, first, that perjury could not be assigned on that which the defendant was charged with having said; secondly, that the indictment laid it as having been material that the words were written in the presence of Dipple.

Crompton shewed cause.-The first ob jection is answered by The Queen v. Dunn (1), where a similar objection was taken. In The Queen v. Perkins (2), the deputy of the coroner signed an inquisition in the name of the coroner, but adding "by C. D. deputy, &c.," and there it was objected that the deputy's act being that of the coroner, no mention should have been made of any other name; it was not doubted that a signature in the name of the coroner would have been correct. As the writ of trial was directed to the sheriffs, it was necessary to allege that the trial took place before themStroud v. Watts (3). Secondly, it is said,

that it is not proved that divers issues were tried; but it is clear that the jury were summoned to try them, and they may have been discharged on any one or more of the issues they came to try. It would amount, at most, to an error in making up the record. As to the third objection, perjury may be assigned in respect of what the defendant stated as to his belief. The real difficulty is not the assignment itself, but the proof; it might be that the defendant had admitted that he knew the handwriting to be his. In The King v. Pedley (4), Lord Mansfield says: It is certainly true that a man may be indicted for perjury in swearing that he believes a fact to be true which he must know to be false"-The King v. Miller (5). Lastly, as to the materiality of the statement that the words were written in the presence of Dipple. It is not necessary to set out on the record all the circumstances shewing the materiality of a particular averment-The King v. Dowlin (6). It is enough to say that the record does not shew it to be immaterial.

66

Sir F. Thesiger and Gray, contrà.-The person before whom the oath was administered should be accurately mentioned The King v. Lincoln (7). Here, the evidence was that the trial took place before the secondary, the allegation being that it was before the sheriffs. It would have been necessary to mention that an oath was taken before the deputy of the coroner, had it not been for the provision in stat. 6 & 7 Vict. c. 83. s. 1, that all acts performed by a deputy should be deemed and taken to all intents, &c. to be the acts of the coroner-The Queen v. Perkins. It is not a question as to the issuing of the writ, but the trial of the case under it. The authority is given by 3 & 4 Will. 4. c. 42. s. 17. By the 18th section the sheriff, deputy, or Judge is to execute the writ of trial, and to certify for stay of execution, &c. The deputy then does not certify as representing the sheriff, but in his own right and character under the act of parliaIt may be that the deputy had no power to administer an oath-The Queen v. Dunn. The sheriff has no power to appoint

ment.

(4) 1 Leach, C.C. 325.

(5) 3 Wils. 427; s. c. 2 W. Black. 881. (6) 5 Term Rep. 318.

(7) Russ. & Ry. C.C. 421.