Correct statement of the cause of death in an indictment for murder. Where the death was caused by the discharge of Death, cause of.]—Where A. was indicted for the murder of his wife by kicking her, and it appeared that a surgeon administered brandy to her as a restorative, some of which went the wrong way and entered her lungs, and may have caused her death: Held, sufficient to allege in the indictment, as the cause of death, the blow which rendered the application of the brandy necessary. (Reg. v. McIntyre, 2 Cox's Crim. Cas. 379, Coleridge, J.) An indictment for murder, charged that the prisoner, a certain musket loaded with gunpowder and a leaden bullet, to, against, and upon M. G., a loaded musket. feloniously, &c., "did shoot, discharge, and send forth," and that he "with the leaden bullet aforesaid, out of the musket aforesaid, then and there, by the force of the gunpowder so shot, discharged, and sent forth as aforesaid," the said M. G. did strike, &c. Held good, and that the words "sent forth," and the other added words which do not occur in the usual form, might be rejected as surplusage. (Reg. v. Stokes, 2 Car. & Kir. 536; 2 Cox's Crim. Cas. 498; 17 L. J. 116, M. C.) Statement in the 2nd and 3rd counts of an indictment for embezzlement that the money was embezzled within six months. Sufficiency of allegations in an indictment for perjury. Embezzlement.]-An indictment which contains three charges of embezzlement, should not only aver that the moneys, which are the subject of the charges, were received within six months, but should also aver that they were embezzled within six months. (Reg. v. Noake, 2 Car. & Kir. 620, Cresswell, J.) Perjury.]-An indictment for perjury contained four counts, each of which stated, that for defendant, on his retainer, W. U. had done business as attorney; that W. U. delivered his bill, and after the expiration of one "month" from such delivery took out a summons before a judge, under stat. 6 & 7 Vict. c. 73, to show cause why the bill should not be referred for taxation; that it then and there became and was material, in showing cause, to ascertain whether defendant did retain W. U.; and that defendant, before showing cause, made an affidavit denying that he had retained W. U., and assigned perjury upon such affidavit. Each of the counts concluded “and so the persons aforesaid did say that the said J. N. R. did commit perjury.” The record then stated the writ of venire to try whether the defendant "be guilty of the perjury and misdemeanor aforesaid," and the verdict that he is guilty of the perjury and misdemeanor aforesaid," &c., and a general Meaning of term judgment thereon. Held, first, that as the counts of the indictment all referred to the statute, the word "month" was to be construed according to the interpretation clause, and meant "calendar month :" secondly, the jurisdiction was sufficiently shown on the indictment, without negativing a prior application to have the costs taxed by the party chargeable, in which case only the act authorizes an application to the judge by the attorney: thirdly, that the fact of the retainer by the defendant was a ment of retainer. material ingredient in the inquiry, and was sufficiently averred: fourthly, that the averment, at the conclusion of each count, was immaterial, and might be struck out as surplusage: and, fifthly, that the word "misdemeanor was nomen collectivum, and that, therefore, the venire and verdict applied to all the counts, and the judgment being for imprisonment only was divisible. (Ryalls v. The Queen, 12 Jur. 458; 17 L. J. 92, M. C.; 11 Law T. 218.) "month." Statement of jurisdiction. Sufficient aver Surplusage. "Misdemeanor" nomen collectivum. Assignment of perjury "thought or believed." Erroneous assignment of perjury. 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. (Reg. v. Schlesinger, 17 L. J. 29, M. C.; 12 Jur. 283, 2 Cox's Crim. Cas. 200.) An indictment for perjury alleged to have been committed in an affidavit filed in support of a rule nisi, obtained in the Court of Queen's Bench, stated that a certain action or cause was depending, and that the plaintiff had caused "an application to be made to the Right Honourable Thomas Lord Denman, Lord Chief Justice of Her Majesty's Court of Queen's Bench, and the other judges of the said court, and the said 66 judges of the said court granted a rule nisi, which rule, or an office copy thereof, is in the words and figures following." The indictment then set out the rule, which ended, as usual, with the words By the Court." Held, that the indictment was bad, for not stating that the application for a rule had been made to the Court of Queen's Bench. Held, also, that if the allegation that an "action or cause" was depending was bad for uncertainty, it ought to be taken advantage of by demurrer, but it would seem that it was not. (Reg. v. White, 2 Cox's Crim. Cas. 232, Parke, B. Variance. Where an indictment alleged that R. W. falsely swore that "he was in Assignment the bar of the house of J. B. on the 15th day of February last, from of perjurybetween the hours of six o'clock and seven o'clock in the evening of the said last-mentioned day, until nine o'clock in the evening of the said lastmentioned day, and that he the said R. W. did not then and there play at any game of cards at all." Held, that perjury was not sufficiently assigned by an averment that "the said R. W. did then and there (to wit), in the said bar of the said house and premises of the said J. B., on the said 15th day of February last, and between the hours of six o'clock in the evening of the said last-mentioned day and eight o'clock in the evening of the said last-mentioned day, play at a certain game of cards, &c. (Reg. v. Whitehouse, 3 Cox's Crim. Cas. 86, Rolfe, B.) several sentences variance. Sedition.]-An indictment for sedition alleged "that the defendant, Setting out amongst other words and matters, uttered the words and matters follow- continuously not ing," and then set out several sentences as though they had been uttered so spoken, not a continuously. The evidence showed that they had not been so uttered, but that the sentences had been selected from different parts of the speech, other matter intervening between them. Held, that there was no variance, and that if any portions of the speech omitted, varied or controlled the sense of those parts that were set out, the onus was upon the defendant to show it. (Reg. v. Crowe, 3 Cox's Crim. Cas. 123, Platt, B.) 66 aver with what وو Shooting.]—In an indictment for maliciously shooting, under stat. Not necessary to 1 Vict. c. 84, s. 4, it is sufficient to say with a certain loaded gun,' a gun was loaded. without going on to state with what it was loaded. (Reg. v. Cox, 3 Cox's Crim. Cas. 58, Platt, B.) ment of the Threatening letters.]-An indictment for sending a threatening letter Erroneous averstated that one R. had lately built and completed a house; and then party to whom charged that the prisoner feloniously sent to one L. a certain letter, threat- a threatening ening to burn the house so built by the said R. Upon objection taken letter was sent. that the indictment ought to have charged a sending to R., Held, that the indictment was bad on that ground. (Reg. v. Jones, 2 Cox's Crim. Cas. 434, 15 judges.) Justice, Administration of (see "Administration of Justice Justice of the Peace. Protection of Justices from Vexatious Actions. BY the 11 & 12 Vict. c. 44, intituled "An Act to protect Justices of 11 & 12 VICT. the Peace from vexatious Actions for Acts done by them in Execution of their Office," (passed 14th of August, 1848,) after reciting that it is Q c. 44. C. 44. For an act by a justice of the peace, within 11 & 12 VICT. expedient to protect justices of the peace in the execution of their duty; it is enacted "that every action hereafter to be brought against any justice of the peace, for any act done by him in the execution of his duty as such justice, with respect to any matter within his jurisdiction as such justice, shall be an action on the case as for a tort; and in the declaration it shall his jurisdiction, be expressly alleged that such act was done maliciously, and without reasonable and probable cause; and if at the trial of any such action, upon the general issue being pleaded, the plaintiff shall fail to prove such allegation, he shall be nonsuit, or a verdict shall be given for the defendant." (a) the action shall be on the case, and it shall be alleged to have been done maliciously, and without probable cause. For an act done by him, without jurisdiction or exceeding his jurisdiction, an action may be maintained without such allegation; but not for an act done under a conviction or such conviction or order shall Sect. 2. "And be it enacted, that for any act done by a justice of the peace, in a matter of which by law he has not jurisdiction, or in which he shall have exceeded his jurisdiction, any person injured thereby or by any act done under any conviction or order made or warrant issued by such justice, in any such matter, may maintain an action against such justice, in the same form and in the same case as he might have done before the passing of this Act, without making any allegation in his declaration that the act complained of was done maliciously, and without reasonable and probable cause provided nevertheless, that no such action shall be brought for anything done under such conviction or order, order, until after until after such conviction shall have been quashed, either upon appeal or upon application to Her Majesty's Court of Queen's Bench; nor shall any such action be brought for anything done under any such warrant which shall have been issued by such justice to procure the appearance of such party, and which shall have been followed by a conviction or order in the same matter, until after such conviction or order shall have been so quashed as aforesaid; or if such last-mentioned warrant shall not have been followed by any such conviction or order, or if it be a warrant upon an information for an alleged indictable offence, nevertheless if a summons were issued previously to such warrant, and such summons were served previously served upon such person, either personally or by leaving the same for him with some person at his last or most usual place of abode, and he did not appear according to the exigency of such summons, in such case no action shall be maintained against such justice for anything done under such warrant." (b) have been quashed; nor for an act done under a warrant to compel appearance, if a summons were and not obeyed. If one justice make a convic tion or order, and another grant a Warrant upon it, the action must be brought against the former, not the latter, for a defect in the conviction or order. Sect. 3. 66 And be it enacted, that where a conviction or order shall be made by one or more justice or justices of the peace, and a warrant of distress or of commitment shall be granted thereon by some other justice of the peace bona fide and without collusion, no action shall be brought against the justice who so granted such warrant, by reason of any defect in such conviction or order, or for any want of jurisdiction in the justice or justices who made the same, but the action (if any) shall be brought against the justice or justices who made such conviction or order." (a) To bring a justice within the protection of this clause, it is necessary that the act done should be in the execution of his duty as such justice, and be, with respect to some matter, within his jurisdiction. It may well be doubted from the peculiar wording of this section whether or not it applies to an action in the County Court. (b) This section renders it imperative that before any action can be brought in respect of the causes referred to, the conviction (the word "order" is omitted) shall be quashed, either upon appeal or upon application to the Court of Queen's Bench. The framer of this enactment has forgotten that in a great variety of cases of summary convictions the Legislature has taken away the certiorari and given no appeal, so that in such cases, as it will be impossible to quash the conviction, the defendant will be deprived of his action, howsoever wrongful his conviction may have been. It may further be remarked that as by the 8th sect. no action can be commenced against a justice of the peace for anything done by him in the execution of his office, unless the same be commenced within six calendar months next after the act complained of shall have been committed, and as according to the present practice of the Court of Queen's Bench, it is almost impossible to quash a conviction within six months after it has taken place, this section will in many cases have the effect of depriving a party of his right of action altogether. C. 44. Sect. 4. "And be it enacted, that where any poor-rate shall be made, 11 & 12 VICT. allowed and published, and a warrant of distress shall issue against any person named and rated therein, no action shall be brought against the No action for justice or justices who shall have granted such warrant, by reason of any issuing a distress irregularity or defect in the said rate, or by reason of such person not warrant for being liable to be rated therein; and that in all cases where a discre- poor-rate, by tionary power shall be given to a justice of the peace, by any act or acts defect, or that of Parliament, no action shall be brought against such justice for or by the party is not reason of the manner in which he shall have exercised his discretion in the execution of any such power."(a). reason of any rateable. No action against justices, for the discretionary Court of Queen's action shall be Sect. 5. "And whereas it would conduce to the advancement of justice, manner in which and render more effective and certain the performance of the duties of they exercise a justices, and give them protection in the performance of the same, if some power. simple means, not attended with much expense, were devised, by which If a justice refuse the legality of any act to be done by such justices might be considered to do an act, the and adjudged by a court of competent jurisdiction, and such justice Bench may by enabled and directed to perform it, without risk of any action or other rule order him to proceeding being brought or had against him; be it therefore enacted, do it, and no that in all cases where a justice or justices of the peace shall refuse to do brought against any act relating to the duties of his or their office as such justice or him for doing it. justices, it shall be lawful for the party requiring such act to be done, to apply to Her Majesty's Court of Queen's Bench, upon an affidavit of the facts, for a rule calling upon such justice or justices, and also the party to be affected by such act, to show cause why such act should not be done; and if after due service of such rule, good cause shall not be shown against it, the said court may make the same absolute, with or without or upon payment of costs, as to them shall seem meet; and the said justice or justices, upon being served with such rule absolute, shall obey the same, and shall do the act required; and no action or proceeding whatsoever shall be commenced or prosecuted against such justice or justices for having obeyed such rule, and done such act so thereby required as aforesaid. Sect. 6. "And be it enacted, that in all cases where a warrant of After conviction distress or warrant of commitment shall be granted by a justice of the or order co firmed on appeal, peace upon any conviction or order which, either before or after the no action for granting of such warrant shall have been or shall be confirmed upon under a warrant anything done appeal, no action shall be brought against such justice who so granted upon it. such warrant, for anything which may have been done under the same, by reason of any defect in such conviction or order." Sect. 7. "And be it enacted, that in all cases where by this act it is If an action be enacted that no action shall be brought under particular circumstances, by this Act it is brought where if any such action shall be brought, it shall be lawful for a judge of the prohibited, a court in which the same shall be brought, upon application of the defen- Judge may set dant, and upon an affidavit of facts, to set aside the proceedings in such ceedings. action, with or without costs, as to him shall seem meet." aside the pro Sect. 8. "And be it enacted, that no action shall be brought against Limitation of any justice of the peace, for anything done by him in the execution of his action. office, unless the same be commenced within six calendar months next after the act complained of shall have been committed." (b) 66 Sect. 9. And be it enacted, that no such action shall be commenced Notice of action. against any such justice of the peace, until one calendar month at least after a notice in writing of such intended action shall have been delivered to him, or left for him at his usual place of abode, by the party intending to commence such action, or by his attorney or agent, in which said (a) It is difficult to understand why this clause should be confined to poor rates, when the reason for the protection afforded applies equally strongly to all other rates. (b) Although by this section no action can be commenced after the expiration of the six months, yet where by any statute the limitation is of a less period, such limitation will be of full effect. For the construction to be put upon the words "for anything done by him in the execution of his office," see 3 Burn's Just. 29 ed. tit. Justices of the Peace," p. 1033. 66 11 & 12 VICT. notice the cause of action, and the court in which the same is intended C. 44. to be brought, shall be clearly and explicitly stated; and upon the back thereof shall be indorsed the name and place of abode of the party so intending to sue, and also the name and place of abode or of business of the said attorney or agent, if such notice have been served by such attorney or agent." (a) Venue. Defendant may plead the general issue, any special matter, &c., in evidence. Sect. 10. And be it enacted, that in every such action, the venue shall be laid in the county where the act complained of was committed; or in actions in the County Court, the action must be brought in the court within the district of which the act complained of was committed; and the defendant shall be allowed to plead the general issue therein, and to give any special matter of defence, excuse or justification in evidence under such plea, at the trial of such action: provided always, that no action shall be brought in any such County Court against a justice of the peace, for anything done by him in the execution of his office, if such justice shall object thereto; and if within six days after being served with a summons in any such action, such justice, or his attorney or agent, shall give a written notice to the plaintiff in such action, that he objects to being sued in such County Court for such cause of action, all proceedings afterwards had in such County Court in any such action shall be null and void." (b) (a) The notice provided for by this section is a substitution for that enacted by the 24 Geo. 2, c. 44, s. 1, and in addition to most of the old requisites, it must state in what court the action is intended to be brought. What useful purpose this statement of the court is to answer it is difficult to comprehend, unless, indeed, it be to inform the justice whether or not he is to be sued in the County Court, so as to enable him to give his notice as provided for by the next section. This section also requires that the name and place of abode of the plaintiff should be indorsed, which was not necessary under the old act, and empowers an ordinary agent to serve it, who, however, must have his place of abode and business indorsed. (b) The first part of this section is merely a re-enactment of the old law. The proviso, however, introduces new provisions of a most extraordinary, anomalous, and doubtful character. It appears to be the intention of the Legislature to give to justices, in cases of actions brought against them, an absolute power to compel such actions to be brought in one of the Superior Courts; why the jurisdiction of the County Courts should thus be ousted at the mere will of the defendant it is difficult to see; giving thus to one party (the justice) a right to the judgment of one of the Superior Courts and denying it to the other, does not savour very strongly of impartial and evenhanded justice; small actions will thus be restrained, since few plaintiffs will incur the risk of the costs of an action in one of the Superior Courts, when they seek alone for small or doubtful damages. If it was the intention of the Legislature to have discouraged small actions, a more straightforward and dignified course may certainly have been pursued than that of compelling a plaintiff to resort to an expensive mode of proceeding. The power thus conferred upon justices can be made an easy mode of stifling small actions, and will thus be a premium to injustice in numberless cases. But apart from a moral view of the case, the proviso opens a wide field for legal disquisition. No action is to be brought in the County Court if such justice shall object thereto; and if within six days after being served with the summons the justice or his attorney or agent gives a written notice to the plaintiff, that he objects to being sued in the County Court, all further proceedings in such County Court are to be void. So that if the justice object before action brought, no action is to be commenced in the County Court; or, if he object within six days after being served with a summons, the action is to be stayed. The proviso does not point out what is to be the form or service of the objection in the first instance. Possibly it was not intended that the objection should be made until after the service of the summons, in which case it is stated that the objection is to be in writing; but if this were so, what is the meaning of the words "no action shall be brought," since the issuing of the summons is the bringing of the action? And wherefore put the parties to the expense and trouble of levying a plaint, and issuing and serving a summons (for the costs of which there is no provision)? This proviso is also likely to be productive of the most serious injustice to the plaintiff in the following particulars : 1st. By sect. 8 the plaintiff has six calendar months next after the act complained of, within which to commence his action. Supposing he commences it in the County Court on the last day of such six months, and six days after the defendant has been served, notice is served that the defendant objects to being sued in the County Court, in what position is the plaintiff placed? Why, his action will have been for ever gone-it will be idle for him to commence an action in one of the Superior Courts, |