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An indictment for perjury may be sustained against the deponent of an affidavit, who is an illiterate person or marksman, if it appear that it was read over to him, and that he undertood its contents. And the same rule obtains, though the affidavit was rejected by the Court on the ground of an informality. Rex v. Hailey, 1 C. & P. 258, s. c. 1 R. & M. 94. [Littledale]

Whether an affidavit, sworn before a bankrupt's petition was actually filed, will support an indictment for perjury-quære. Rex v. Dudman, 2 G. & J. 389.

To support an indictment for perjury arising out of legal proceedings, the matter sworn to must be material to the question at issue. Therefore, where the subject of the perjury charged was the denial of an agreement for the purchase of lands, in an answer to a bill filed for a specific performance, it appearing that such agreement was not in writing: It was bolden, that, the agreement being void by the Statute of Frauds, the offence did not amount to perjury. Rex v. Dunston, 1 R. & M. 109. [Abbott]

A cause was referred by a judge's order to CD, and by the order it was directed that the witnesses should be sworn before a judge, "or before a commissioner duly authorized." A witness was sworn before a commissioner for taking affidavits, and examined viva voce by the arbitrator: Held, that a witness so sworn was indictable for perjury. Rex v. Hanks, 3 C. & P. 419. [Gaselee]

(B) INDICTMENT.

The words "wilfully and corruptly" are material words in an indictment for perjury; and their omission will not be cured by the words" falsely and maliciously;" or any others of supposed equal import : even though the formal statement, at the end of the count, contain the legal inference of the jury, that 66 So "the defendant did commit "wilful and corrupt perjury."

A count in an indictment for perjury, in averring the falsehood of the defendant's testimony, must not aver it in general terms, by referring to the particulars as given in a previous count: but the particulars of the falsehood must be clearly and certainly stated in each count. Rex v. Richards, 5 Law J. K.B. 155, s. c. 7 D. & R. 665.

An indictment against a witness for perjury must state that he wilfully or corruptly swore falsely— since alleging that "he then and there falsely and maliciously gave false testimony," &c. is insufficient So it must also aver, that he was sworn as a witness.

and deposed to certain facts, as its omission cannot he aided by intendment. Rex v. Stevens, 5 B. & C. 246.

In an indictment for perjury, it is not necessary to set out the evidence given in the exact continuous mode it occurred; provided there be sufficient matter alleged to support the charge. Rer v. Solomon, 1 R. & M. 252. [Abbott]

It seems that, in an indictment for perjury, an averment that the person, who administered the oath, had "sufficient and competent authority," is sufficient, without stating how, or in what character he had the authority.

Where perjury is assigned upon several parts of an affidavit, those parts may be set out in the indictment as if continuous, although they are in fact separated by the introduction of other matter. Rer v. Callunan, 5 Law J. M.C. 39, s. c. 6 B. & C. 102, s. c. 9 D. & R. 97.

An indictment for perjury against an insolvent debtor, stating, that "whereas in truth and in fact the said schedule did not contain a full, true, and perfect account of all debts owing to him at the time of his petitioning for his discharge, without naming the particular debts omitted, is too general. Rex v. Hepper, 1 C. & P. 608, s. c. 1 R. & M. 210. [Abbott]

It seems that an indictment for perjury in an affi davit made before a commissioner in the Court of Chancery, may be sustained, without averring that the affidavit had been used, or was intended to have been used, in a judicial proceeding. Rex v. Dudman, 7 D. & R. 324, s. c. 4 B. & C. 850.

(C) EVIDENCE.

To sustain an indictment for conspiring by false oath, &c. the Ecclesiastical Court will, on prayer, order its officer to attend with the papers in the cause. Westmeath v. Westmeath, 2 Add. 380.

Where the perjury arises out of the trial of a cause, it is sufficient for the prosecutor to prove all the evidence given by the defendant, strictly applicable to the fact on which perjury is assigned. And the testimony of a witness, who says he has stated to the best of his recollection, that which was material to the matter now in issue, is evidence for the jury. Rex v. Rowley, 1 R. & M. 299. [Littledale]

A prisoner cannot be convicted of perjury on an affidavit, if it refers to a former affidavit, which the prosecutor is not prepared to prove. Rex v. Hailey, 1 C. & P. 259, s. c. 1 R. & M. 97. [Abbott]

Where an indictment for perjury averred that the defendant was sworn on the Holy Gospel,-it was holden, that proof, that the defendant was sworn and examined as a witness, was sufficient-it being the ordinary mode of swearing. Rex v. Rowley, 1 R. & M. 302. [Littledale]

An indictment for perjury, assigned on a petition to the Lord Chancellor, to supersede a commission of bankrupt, professing to set forth only the substance of the petition, stated, "that at the several meetings before the commission, the petitioner declared openly, and in the presence and hearing of A B, assignee, &c. ;". the petition itself was, "that, at the several meetings before the commissioners," the petitioner declared, &c.: Held, to be no variance, because the word commission denoted an authority or trust exercised by persons, and

But if the other party plead over, the same expression shall be taken in the sense which will support the previous pleading.

Accordingly, a man covenanted that he had done no act" whereby" the estate in question could be affected in title. Breach assigned that, in fact, he had previously executed a certain deed between certain parties, "whereby" the estate was affected in title. The defendant pleaded over. The pleadings went on to demurrer. The defendant then contended that the breach was assigned in equivocal terms, because the word "whereby " might apply either to the deed itself, or merely to the execution of it by him; and if it were the first, it was no breach in him: Conceded, as to the equivocality; but held to have been cured by the pleading over. Hobson v. Middleton, 5 Law J. K.B. 160, s. c. 6 B. & C. 295.

Where the form of the plaintiff's declaration infers that the action is commenced by one mode of proceeding, and his replication, in answer to a plea of the Statute of Limitations, sets out a proceeding of another mode, for the purpose of shewing that the action was commenced in time, it is unnecessary for the defendant to rejoin as a fact, that the action was commenced by a mode of proceeding different from that set out in the replication.

Thus-Declaration, apparently in an action by original-A B "was attached," &c.

Plea-The Statute of Limitations. Replication-A bill of Middlesex sued out, returned, and continued in time.

Rejoinder-Defective, but held to be of no consequence, as the replication was bad; for it did not shew a proceeding sufficient to maintain the declaration. Lawrence v. Lewis, 6 Law J. K.B. 243.

The mere practice of the Court cannot be pleaded. It is matter of regulation by motion only.

The issuing and returning a ca. sa., in order to fix bail, is a legal necessity upon the plaintiff according to the legal interpretation given to the recognizance. The bail may therefore plead, that no ca. sa. has been issued and returned, as that is matter of law. And whether the ca. sa. has been issued into the right county, is also a matter of law, appearing on the face of the record, and may therefore be a question raised by the pleadings.

But, whether a ca. sa. has remained four clear days in the office of the sheriff before the return; or whether, in any other respect, it has been issued, lodged, and returned, according to the practice of the Court, are questions of mere practical regulation by the Court upon motion, and cannot be raised by the pleadings. Sandland v. Proctor, 6 Law J. K.B. 138, s. c. 7 B. & C. 800.

An immaterial averment may be rejected as surplusage, provided the sentence will remain perfect, distinct, and sensible, without it, but not otherwise.

Accordingly, a count stated that a writ was sued out against the plaintiff marked for bail 90/.; [that he was arrested under it,] and [being so arrested and in custody] that he was forced and obliged to procure bail to answer the writ: It was held, that the words in brackets could not be rejected, because, if they were, nothing appeared to shew that the plaintiff was forced and obliged to give bail. Berry v. Adamson, 5 Law J. K.B. 215, s. c. 6 B. & C. 528. In Scotch pleading, a defender not having by his

defences raised an objection which might have been material to his case, has waived that objection. Bat if in a subsequent proceeding he raises the question, and, a reference being made upon the point by the Court to the Lord Ordinary, the pursuer does not appeal against the order by which the reference is made, the right to insist upon the objection is restored. Dingwall v. Gardner, 3 Bligh, 72.

2. AT LAW. (A) DECLARATION. (a) In general.

It is not essential for a declaration in debt against a defendant in the custody of the sheriff, to allege that the process issued at the suit of the plaintiff against the defendant. Parker v. Drew, 1 Ken. 114.

If a plaintiff declares de novo on the removal of a cause by habeas corpus from an inferior to a superior court, he is not bound to declare in the same form of action in the superior court as he did in the inferior court. Bowerbank v. Walker, 2 Chit. 517.

If, in an action on the case, the declaration against an Earl state him to have been "summoned," instead of "attached," it is untenable. Hunter v. Earl of De Loraine, 2 Chit. 638.

A count in a declaration in an action on the case, stated, that the defendant represented and affirmed to the plaintiff, that he, the defendant, was legally entitled to sell and dispose of certain goods, and requested the plaintiff to sell the same by public auction; that the plaintiff, confiding in such representation and affirmation, sold the same, and, after deducting certain expenses, paid over the residue to the defendant; whereas the defendant deceived and defrauded the plaintiff in this-to wit, that the defendant was not at the time of the sale legally entitled to sell and dispose of the goods:the plaintiff then averred that an action was brought against him by the true owner, and in which he recovered the value of the goods sold, which the plaintiff was obliged to pay him, together with the costs of the action; and assigned for breach, that the defendant not regarding his duty in that behalf, refused to pay those sums to the plaintiff: Held, sufficient after verdict, although it was objected that there was no averment that the defendant represented to the plaintiff that he was legally entitled to sell, or that the goods were put up to sale at the request of the defendant, or on his retainer, and that there was no retainer shewn at the time of the request to put up the goods to sale. Adamson v. Jarvis, 5 Law J. C.P. 68, s. c. 4 Bing. 66.

A count charging a clerk with negligence in suffering his employers to be defrauded of sums of money, without specifying any in particular, is bad. Whitmore v. Wilks, 3 C. & P. 364. [Tenterden]

An allegation in a declaration, that defendant dammed up and diverted the water of a certain watercourse, and prevented it from flowing in sufficient quantities as it was accustomed to flow, is supported by proof of an irregularity in the supply of water, by reason of the defendant's act; although it may appear, that the water is only occasionally delayed in its passage, and never wholly or in part withdrawn from the claimant. Shears v. Wood, 1 Law J. C.P. 3, s. c. 7 B. Mo. 345.

In case against an attorney for negligently pur

chasing an insufficient title, the declaration stated, that he was retained as attorney; and held good, without alleging the consideration. If diligence would have been ineffectual, the defendant must prove it. And so, if a declaration state the defendant to be an attorney of a particular court, the plaintiff must prove it, though it is admitted in his plea. Bourne v. Diggles, 2 Chit. 311.

Where a party is described in the process generally, he may be declared against as an administrator; the object of the writ being only to bring the defendant before the Court. Watson v. Pilling, 6 B. Mo. 66, s. c. 3 B. & B. 4.

By the special memorandum of a declaration, it was stated that the plaintiff, administratrix, on the 20th of January, brought her bill into the office of the clerk of the declarations of K.B., according to the course and practice of the Court, and filed the same as of Michaelmas term. Plea, that at the time of exhibiting the bill, the plaintiff was not administratrix, upon which issue was joined. It appeared that the defendant was neither an attorney, nor a prisoner in the custody of the marshal. The bill was delivered on the 20th of January. The letters of administration were granted on the 10th of January: Held, that, upon the issue joined, the verdict was properly found for the plaintiff, the latter having been administratrix at the time when the bill was exhibited. Wooldridge v. Bishop, 6 Law J. K.B. 101, s. c. 7 B. & C. 406.

(b) Title.

A declaration was entitled on a particular day in Hilary Term, 3 Geo. 4, being a day after the 29th of January, when the 4 Geo. 4. began: Held, that the declaration was good, because the whole of the term might, in law, be said to be in the third year of the reign. Law v. Pugh, 1 Law J. K.B. 188, s. c. 2 D. & R. 868.

Where a declaration was entitled of a wrong year, but the notice to appear in the following term was correctly stated: Held sufficient. Goodtitle d. Ranger v. Roe, 2 Chit. 172.

Where a declaration, entitled generally of Michaelmas Term, averred the cause of action to have arisen on a day subsequent to the commencement of the term, it was holden no ground of error. Ruston v. Owston, 1 M'Clel. & Y. 202, s. c. 2 Bing. 469. (c) Parties.

In the commencement of a declaration, the plaintiff's name was stated to be" James Toll Hutchins;" upon special demurrer, on the ground, that in the subsequent part he was called "said James" only, held sufficient, because non constat that "Toll" is part of the surname. Hutchins v. Gilbie, 2 Chit. 335.

Although several persons have been jointly held to bail, in an action for a tort, yet the plaintiff may declare separately against one of them. Wilson v. Edwards, 3 Law J. K.B. 107, s. c. 3 B. & C. 734, s. c. 5 D. & R. 622.

(d) Joinder of Counts.

Where a declaration contained a count alleging, "that defendant had received for plaintiff a sum of money, to wit, 10s., to be paid by defendant to plaintiff upon request, yet defendant, not regarding his duty, had converted and disposed thereof to his

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own use:" Held, that it appeared to be laid in assumpsit, though colourably in trover, and could not be joined with counts in case. Orton v. Butler, 2 Chit. 343.

A count which is, in substance, a count in assumpsit, cannot be joined to a count in trover.

An express averment of a promise is not necessary in order to constitute assumpsit.

Therefore, a count which stated that the plaintiff, at the request of defendant, had delivered to him certain goods to be taken care of by the defendant for reward to him; and that, in consideration thereof, the defendant undertook and agreed to take due and proper care of the goods, and to re-deliver them on request-was held to be in assumpsit; and, because it was joined to a count in trover, and general damages were given, judgment was arrested. Corbet v. Packington, bart. 5 Law J. K.B. 142, s. c. 6 B. & C. 268.

In an action against husband and wife, the misjoinder of counts is available on general demurrer. May v. House, 2 Chit. 697.

(B) PLEAS.

A plea to an action by the plaintiff, as executor, that the promises in the declaration were made jointly with plaintiff, is a plea in bar, and not a plea in abatement. Moffat v. Van Mullingen, 2 Chit. 539.

Where a special plea states matter which amounts to a total denial of the plaintiff's right of action at any time, it is bad upon demurrer, as amounting to the general issue. Stevenson v. Addison, 5 Law J. K.B. 205.

In a quare impedit, the Court refused to allow the defendant to traverse in pleading all the allegations in the count, but ordered that the pleas should be directed to a particular point to which the merits seemed to be confined, viz. the contesting the validity of a certain deed on which the plaintiff's title rested. Gully v. the Bishop of Exeter, 6 Law J. C.P. 240, s. c. 5 Bing. 42, s. c. 2 M. & P. 105.

An allegation, though of itself immaterial, if stated as the basis of a proposition upon which the plea depends, becomes important, and, being negatived by the finding of the jury, defeats the plea. Rex v. Peto, 1 Y. & J. 37.

Where a plea professes to answer the whole declaration, but does not do so-semble, that the course for the plaintiff to take is to join issue on the plea, and that the judge at Nisi Prius may direct the jury to assess damages in respect of the part not answered by the plea. Merrick v. Ellis, 6 Law J. K.B.

257.

Where a plea refers expressly to the exception of another plea, and also contains an averment of performance of covenants in the said deed, which deed is set forth in the plea referred to, but not mentioned in the exception to that plea, the two pleas may be taken together. Macdougal v. Robertson, 2 Y. & J. 11.

(C) REPLICATION.

To an action for maliciously suing out a commission of bankruptcy, the defendant pleaded the plaintiff's trading, act of bankruptcy, and his being indebted in the sum of 100l. whereof, &c. on replication de injurid, the Court held the replication good, inasmuch as those facts constituted together but one entire proposition, and put in issue only one

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point, namely, the bankruptcy. O'Brien v. Saxon, 2 B. & C. 908, s. c. 4 D. & R. 579.

To debt on bond conditioned to replace stock, with all dividends "which shall accrue due upon the same, from the date of the bond" upon three months' notice, the defendant pleaded, that plaintiff did not give three months' notice to replace the stock, with the dividends which would have become due for the same from the date of the bond. Replication alleged, that more than three months before action, plaintiff gave notice, at the expiration of three months, to replace the stock, with all dividends which had accrued due on the same from the date of the bond, and then went on to assign a breach in the non-transfer of the stock: Held, that the notice set out in the replication was sufficient ; and that the assignment of the breach was unnecessary and informal, but that the objection could be taken only by way of special demurrer for duplicity. Hudson v. Smith, 6 Law J. K.B. 146, s. c. 1 M. & R. 489.

In an action on a judgment recovered, the defendant pleaded that the plaintiff sued out a ca. sa. against him, under and by virtue of which said writ the sheriff took and arrested him, and had him in custody for the debt and damages; the plaintiff replied, protesting the suing out and delivering the writ to the sheriff, and traversing that under and by virtue, &c. the sheriff took the defendant: Held, to be a good and sufficient allegation in the replication. Savile v. Jackson, 11 Price, 348.

In an action on a bond, the plaintiff may, under the 8 & 9 Wil. 3. c. 11, s. 8, suggest breaches at the conclusion of his replication. Humphrey v. Rigby, 2 Chit. 298.

Where the original action is for damages, a replication in scire facias, against bail praying judgment of the debt and damages, is not demurrable. Roe v. Roe, 2 Chit. 322.

A replication to a plea of set-off and judgment, that the party against whom it was recovered was taken in execution upon it, is good. Taylor v. Waters, 2 Chit. 303.

A replication to a plea to an inquisition, traversing possession of the goods by the assignees (in the terms of the plea which stated the facts,) and alleging that the assignees were not possessed of the said goods, is demurrable; but the Attorney General was permitted to amend, by withdrawing the replication and paying the costs. Rea v. Evans, 9 Price, 266.

3. IN EQUITY. (A) BILL.

A plaintiff in equity must state his title in his bill, and, unless it is admitted by the defendant, must prove it. Norbury v. Meade, 3 Bligh, 211.

Demurrer, on the ground that there was no description, in the bill, of the plaintiff's place of abode.

Where words of local description were, in grammatical description, applicable either to the plaintiff, (whose place of abode was not otherwise mentioned in the bill,) or to a third person; they were held to apply to the former. Rowley v. Eccles, 2 Law J. Chanc. 25, s.c. 1 S. & S. 511.

Semble-That a bill, praying that the defendant may deliver to the plaintiff documents constituting the legal title to stock, which the former had agreed

to transfer to the latter, and that the plaintiff may have the full benefit of that stock, may be maintained. Doloret v. Rothschild, 2 Law J. Chanc. 125, s. c. 1 S. & S. 590.

A plaintiff may in one bill pray account of two estates; thus, if he be the residuary legatee of B, who is residuary legatee of A? Turner v. Doubleday, 6 Mad. 94.

A bill filed by the residuary legatees, who are also appointees of a share of another testator, is not multifarious, though it be for an account of both estates. Turner v. Robinson, 1 S. & S. 313.

A bill is multifarious, if it prays discovery or relief in respect of a transaction with which one of the defendants had no concern, and which has no connexion with those other transactions in which he is concerned. Percival v. Blower, 1 Law J. Chanc. 1.

A bill stating that two distinct actions for libel have been commenced against the plaintiff in equity, to which he has put in pleas of justification, and praying a discovery, and also one or more commissions to examine witnesses abroad in aid of his defence at law, is multifarious. Shackell v. Macauley, 3 Law J. Chanc. 27, s. c. 1 S. & S. 79.

It is multifarious for a bill to pray an account of testator's estate, and to set aside sales made by the executor and trustee to himself and to another person. Salvidge v. Hyde, 1 Jac. 151.

Infants entitled as the next of kin to shares of an intestate's estate, and of whom one, as his heir-atlaw, was entitled to his real estate, filed their bill against the administratrix, charging that she had entered, as natural guardian of the infant heir, into possession of the real estate, and praying that she might account for both the real and the personal estate of the intestate: Held, that the bill was multifarious. Dunn v. Dunn, 6 Law J. Chanc. 175.

A testatrix, after charging all her estates with a sum of 1,000l. in favour of A, devises Blackacre specifically, and gives the rest of her real estates to trustees in trust for A: a bill for the execution of the trusts of the will is filed by A; but, in the prosecution of the suit, no order is asked or made with respect to the devised estates: and the decree on further directions relates merely to costs, and to the raising of the pecuniary charge out of all the estates of the testatrix: afterwards A files a bill of revivor and supplement against both the real and the personal representatives of a deceased defendant, who had been in possession of Blackacre, charging that he and they had received the rents and profits of a tenement as being part of Blackacre, though in truth it was part of the premises devised to A: Held, that the character of the suit was not changed by the limited decree which the plaintiff took, and that such a bill of revivor and supplement cannot be demurred to as being multifarious, in relation to the matters affected by the previous proceedings. Traherne v. Pinkney, 2 Law J. Chauc. 47. A party is entitled to the benefit of any point which can be suggested by the bill, though it be not expressly insisted upon by the pleadings. Knowles v. Clayton, 2 Law J. Chanc. 181.

(B) ANSWER.

An answer disclaiming is liable to exceptions for insufficiency. Glassington v. Thwaites, 3 Law J. Chanc. 112.