RYALLS

v.

Perjury.

said W. Unwin (meaning the said W. Unwin) to act as attorney for him (meaning the said J. N. Ryalls), and J. Ironsides, THE QUEEN. (meaning the said J. Ironsides), also mentioned and referred to in the said summons, or for either of them, in and about the business mentioned in the said W. Unwin's bill of costs, delivered to him the said J. N. Ryalls and the said J. Ironsides (meaning the said bill of costs in the said summons mentioned, and the bill so delivered by the said W. Unwin to the said J. N. Ryalls and the said J. Ironsides, as aforesaid), or in or about any part of such business; and he the said J. N. Ryalls never retained or employed the said W. Unwin to act as attorney or agent for him the said J. N. Ryalls, in any cause or matter whatever, as in and by the said affidavit of the said J. N. Ryalls, in the matter of the said W. Unwin, more fully and at large appears: whereas, in truth and in fact, the said J. N. Ryalls did, to wit, on, &c., at, &c., retain and employ, and authorize the said W. Unwin, to act as attorney for him the said J. N. Ryalls and J. Ironsides, in and about the business mentioned in the said W. Unwin's bill of costs, so delivered to the said J. N. Ryalls and the said J. Ironsides, as aforesaid, and in and about every part of such business; and whereas, in truth and in fact, the said J. N. Ryalls had, to wit, on, &c., at, &c., retained and employed the said W. Unwin to act as attorney and agent for him the said J. N. Ryalls, in the said business in the said Court of Exchequer as aforesaid. And so the jurors aforesaid, Indictment. upon their oath aforesaid, did say that the said J. N. Ryalls, on, &c., at, &c., before the said H. W. (he the said H. W. then and there having such lawful and competent power and authority as aforesaid), by his own act and consent, and of his own wicked and corrupt mind, in manner and form aforesaid, falsely, wickedly, wilfully, and corruptly, did commit wilful and corrupt perjury, to the great displeasure of Almighty God, to the evil example of all others in the like case offending, against the form of the statute in such case made and provided, and against the peace of our Lady the Queen her crown and dignity.

The 2nd count differed from the first only in stating that the business was done on the retainer of J. N. Ryalls and J. Ironsides.

The 3rd and 4th counts were the same as the 1st and 2nd counts respectively, except that the averment, negativing any application to the Court of Exchequer by the parties chargeable within a month, was omitted.

The record then proceeded to set forth a venire to the defendant to appear and "answer the premises" at the next gaol delivery for the county of York, and his appearance in obedience thereto. It then proceeded: "And being brought to the bar here in his proper person, and forthwith being demanded concerning the premises in the said indictment above specified and charged upon him, how 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 stated a joinder by the clerk of the crown: a writ of venire juratores to try "whether the

RYALLS

v.

Perjury.

said J. N. Ryalls be guilty of the perjury and misdemeanor aforeTHE QUEEN. said, or not guilty;" a verdict that he is guilty "of the perjury and misdemeanor aforesaid, in manner and form as by the said indictment above against him is supposed;" and then the following 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 J. N. 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."

Argument for plaintiff in

error.

The Court of Queen's Bench affirmed the judgment of the court below. (a)

66

Pashley, for the plaintiff in error.-The 1st objection applies to all the counts of the indictment. They are framed under sect. 37 of 6 & 7 Vict. c. 73, which provides that "in case no such application as aforesaid"—that is, an application by the party chargeable to refer the attorney's bill to taxation-" shall be made within such month as aforesaid, then it shall be lawful for such reference to be made as aforesaid, either upon the application of the attorney or solicitor, or the executor, &c. of the attorney or solicitor;" so that there is no jurisdiction to refer an attorney's bill to taxation upon his own application, if within "one month" from the delivery of the bill, the party chargeable has applied; and by sect. 48 one month" is interpreted to mean one calendar month. The objection is, that "month" in the indictment means lunar month; and that, therefore, the jurisdiction of the judge over the matter is not shown. The Court of Queen's Bench appears to have conceded that it was essential to show the jurisdiction by averring that one month had elapsed without an application by the party chargeable: but held that the word month in the indictment must mean the same as month in the statute. It is that part of the judgment which cannot be sustained. There are here two conditions precedent to the jurisdiction of the judge in this matter: 1st, that one calendar month shall have elapsed since the delivery of the bill; and, 2ndly, that no application shall have been made by the party chargeable: in this case the first is not shown; and all the facts necessary to give jurisdiction must appear: (Rer v. the Chapelwardens of Milnrow, 5 M. & S. 248; Reg. v. David Smith, 7 Q. B. 543.) [CRESSWELL, J.-The statute says that the judge shall not make the order until after the expiration of one calendar month; but may he not issue his summons? The party summoned may then show for cause that the time has not expired.] The judge has no jurisdiction in the matter till the month has expired. [PARKE, B.-Are we to make this inquiry at all, with regard to the judge of a superior court?] If a statutory power is exercised, the jurisdiction must be shown upon the face of the instrument, however high the authority exercising it. It was so held even with regard to an order of the Lord Chancellor (Brancker v. Molyneux, 4 M. & G. 226). [PARKE, B.-But

(a) See Ryalls v. Reg., ante, p. 36; 17 L. J., 92, M. C.

RYALLS

v.

Perjury.

Argument for

might not a judge of one of the superior courts, independently of the statute altogether, issue a summons to an attorney of the THE QUEEN. court, calling upon him to show cause why his bill should not be taxed?] At common law the court has no power to order taxation (a). [PARKE, B.-Even that was formerly doubted, though it is now settled, that the power to tax does not exist at common law, except after action brought upon a bill containing taxable items. Still, a bill of costs of an attorney in the Court of Exchequer is not a matter entirely out of the jurisdiction of a judge of that court. There is a case of Calder v. Halkett (3 Moo. Priv. Counc. Cas. 28), and a case of Taaffe v. Downes (ib. 36, a.), in which the general jurisdiction of judges of the superior courts was much considered.] It was held there that an action would not lie against a judge for an act done beyond his jurisdiction; but the question here is not whether an action would lie, but whether the plaintiff can be convicted of perjury upon an affidavit made in a matter over which the judge does not appear to have had any jurisdiction: (Muskett v. Drummond, 10 B. & C. 153, 161.) [CRESSWELL, J.-Do judges' orders for taxation ever state the time when the bill was delivered? I think not; and if so, according to your argument, plaintiff in they are all bad. PARKE, B.-If the bill has been delivered error. more than a month, and no application has been made by the party chargeable, then, you say, the judge has jurisdiction; then, surely he must have jurisdiction to inquire whether those facts exist. How can it be a condition precedent to issuing the summons, that those facts should exist?] The judge must certainly inquire into the existence of those facts; and if a dispute arose about them, and the inquiry was whether a month had elapsed or not, a false affidavit upon that matter would be perjury; but then it must be shown that that inquiry arose, and that the false oath was material to it. Here the question of retainer is the only one suggested as material. It is consistent with every allegation in this indictment that application had been made by the party chargeable, that a calendar month had not expired, and that the judge was aware of those facts when he issued the summons. [PARKE, B.-Would it not be enough to say simply that Sir. R. M. Rolfe, one of the judges of the Court of Exchequer issued his summons; and that before showing cause the defendant made an affidavit concerning the matter mentioned in the summons? Is not this the distinction, that in courts of general jurisdiction, you must intend everthing within it, until the contrary appears; in courts of limited and inferior jurisdiction nothing can be intended within it but what is expressly stated: (Howard v. Gossett, 14 L. J. Q. B. 367.) CRESSWELL, J.-Suppose the court granted a rule nisi; and upon cause being shown it appeared that the court had no jurisdiction; could not perjury be assigned upon affidavits made in that matter? COLTMAN, J.-There is an averment that the commissioner had authority to administer the oath.] But that averment does not dispense with the necessity of showing

(a) See cases cited in Williams v. Griffith, 6 Mee. & W. 32.

RYALLS

that the oath was taken in a judicial proceeding: (Reg. v. Overton, THE QUEEN. 4 Q. B. 83). An indictment for perjury committed in the course

v.

Perjury.

Argument for plaintiff in

error.

of bankruptcy proceedings must show that the proceedings were not without jurisdiction: (Rex v. Jones, 4 B. & Ad. 345; Rez v. Punshon, 3 Camp. 96; Ewington's case, 2 Moo. C. C. 223; Car. & M. 319). [PARKE, B.-Commissioners of Bankruptcy have a special, not a general jurisdiction. They are nothing unless there is an act of bankruptcy.] The authority of judges at chambers mainly depends upon acts of Parliament. [PARKE, B.-At all events in this case if we assume that the dates laid under a videlicet are correct dates, there is an end of the objection; because it appears that the proper time had elapsed; and we are bound to make that assumption if it is necessary to support the indictment: (Nightingale v. Wilcoron, 10 B. & C. 212; Whitaker v. Harrold, 17 L. J., Q. B. 343.)] Then the court are of opinion that month in the indictment means lunar month. [PARKE, B.—Yes; primâ facie it means lunar month.] All the authorities show that is so. (He referred to Parker v. Gill, 10 Jur. 1096; 2 Inst. 674; Co. Litt. 135; 4 Mod. 185; Toml. Dict. "Month.")

PARKE, B.-But, if the videlicet is rejected, all appears to be right.

ROLFE, B.-The bill was delivered in August, 1844; and the summons was not issued until April, 1845.

WILLIAMS, J.-If it is necessary to make the indictment good, you must strike out the videlicet and prove the dates as laid. Bissex v. Bissex (3 Burr. 1729), proves that, in addition to the cases already mentioned.

PARKE, B.-Independently of this point, we do not mean to say that the indictment is bad. On the contrary, I think there is a great distinction between judges of the superior courts and those who possess special limited jurisdictions.

Pashley. Then the second question is, whether the general judgment of imprisonment can be sustained. Both the venire and verdict speak of the "perjury and misdemeanor aforesaid;" that refers to the last count only; and therefore the general judgment is bad. [PARKE, B.-No; misdemeanor is nomen collectivum, as was decided in R. v. Powell (2 B. & Ad. 75); and that case was not overruled in Campbell v. The Queen (2 Cox's Crim. Cas. 463; and 17 L. J. M. C. 89).] The authority of that case is very much shaken by the observations upon it in O'Connell v. The Queen (11) Cl. & Fin. 155.) [PARKE, B.-In O'Connell's case, Rex v. Powell was not at all questioned, so far as it decided that misdemeanor is nomen collectivum; but the correctness of that judgment was doubted because one of the counts did not authorize the punishment of hard labour, and yet the sentence was one of imprisonment with hard labour for the whole period.] Still the value of the case as an authority is greatly diminished. (He referred to the observations of Tindal, C. J. (p. 257), and Lord Lyndhurst (p. 316), in O'Connell's case.) No approval of that case is expressed anywhere; and the decision is in itself contrary to good sense, when compared with other cases. R. v. Salomons (1 T. R. 249), was cited and

RYALLS

V.

Perjury.

recognized in R. v. Powell; yet in the former "offence" was held, to be not nomen collectivum, and surely "offence" is as general as THE QUEEN. "misdemeanor," if not more so. [PARKE, B.-In R. v. Salomons the judgment was certainly wrong; for if "offences" had been used instead of "offence," the penalty would have been 2001.] How is it possible, that "the perjury and misdemeanor aforesaid" can refer to all the counts? [PARKE, B.-It means the misconduct aforesaid.] And yet "the offence aforesaid" means one offence only, and "the felony aforesaid" only the single felony last charged: (Campbell v. The Queen, cited supra.) [PARKE, B.-In Campbell v. The Queen we looked into the old entries and we found that the practice had always been to use the words felonic and separalibus feloniis; and therefore we felt bound to hold that felmy was not nomen collectivum; but we took great care to show that we did not mean to overrule Rex v. Powell. ROLFE, B. -There is this distinction between the words "misdemeanor and "felony," that the former is a popular and the latter a technical term.] Even if that be so, when the term misdemeanor alone is used, it cannot apply here, where the general word is limited by the particular term perjury. It is as if the words "perjury aforesaid" had stood alone; and the rule is that if the word aforesaid can be referred to the last antecedent, it must be so applied: (Rex v. Wright, 1 Ad. & Ell. 434.) [PARKE, B.—Can you expect us to overrule Rex v. Powell in order to defeat justice by a miserable technicality of this sort? We have a distinct authority that misdemeanor is nomen collectivum, and if so, then the plaintiff has been found guilty of all the offences charged.] This indictment shows that there were distinct offences in fact.

PARKE, B.-In the first place, we are all of opinion that this Judgment. indictment is good for the reasons already stated. If the word "month" in the indictment means lunar month, and in order to give jurisdiction it is necessary that a calendar month should have elapsed, then by taking the dates, laid under a videlicet as true, which must be done when the time is material, the jurisdiction is made to appear. Upon the hypothesis, therefore, that the jurisdiction must be shown, the dates, being assumed to be true, show it; but I do not mean to say that it was necessary to aver that the bill had been delivered one month before the application to the judge; on the contrary, my strong impression is, that a judge of a court of general jurisdiction should be taken to have jurisdiction to order taxation until the contrary appears; for quite independently of the statute he would have that authority if an action was brought. Secondly, the authority of R. v. Powell, for treating misdemeanor as nomen generale, was not meant to be overturned either by the House of Lords in O'Connell's case, or by this court in Campbell v. The Queen; in which case, upon looking into the authorities, we expressly drew a distinction between misdemeanor and felony. Judgment affirmed.