1826. The KING V. CALLANAN. wilfully, and corruptly did then and there, before the said F. J. Chell, as such commissioner as aforesaid, depose, swear, and make affidavit in writing, amongst other things, in substance and the effect following, that is to say, &c. The indictment then set out various matters deposed to. In one part it stated, that the defendant, in his affidavit, speaking of a mortgage and warrant of attorney, deposed that they were for "securing the sum of 2501.;" and, in another part of it, set out a particular fact as simply deposed to by the defendant in his affidavit, contradicting the fact, and assigning perjury thereon. At the trial, before Abbott, C. J., at the London adjourned sittings, after last Easter term, it was proved that Mr. Chell, before whom the affidavit was sworn, was a commissioner duly appointed for taking affidavits in the Court of King's Bench; but, upon producing the affidavit, it appeared that the defendant had deposed, that the mortgage and warrant of attorney were "for securing the repayment of the sum of 2501.;” and that he had not simply deposed to the particular fact stated in the indictment, but had added certain reasons accounting for that fact. It was thereupon objected, first, that the indictment was bad for not sufficiently describing the official character and authority of the person before whom the affidavit was stated to have been sworn; and second, that there was a fatal variance between the indictment and the affidavit, in two particulars above pointed out. The Lord Chief Justice overruled both objections, and the defendant was found guilty. The defendant being now brought up for judg ment, Scarlett moved for a rule in the alternative, either for a new trial or to arrest the judgment. First, the indictment is bad, for not shewing that the person by whom the oath was administered was an officer duly authorised to administer it. It states, that the defendant made the affidavit "before the said F. J. Chell, as such commissioner as aforesaid;" but it contains no previous averment that Mr. Chell was a commissioner authorised to take affidavits in this Court. Now, though the statute 23 Geo. 2, c. 11, removes the necessity of setting out the commission of the officer before whom the affidavit is made, it still leaves it incumbent to shew the nature of his office, and to aver, affirmatively and not inferentially, that he is a person duly authorised to administer an oath. Secondly, there were two fatal variances between the affidavit produced in evidence and that set out upon the record. The omission, in the indictment, of the words" the repayment of" in the affidavit was material; for the "securing the sum of 2507.," and the " securing the repayment of the sum of 2501.," are two very distinct things. The omission in the indictment of the reasons detailed in the affidavit for the deposing to a particular fact, was material also, because the fact itself might assume an extremely different character, as stated, with or without certain reasons explaining it. If the whole of the affidavit was not set out, at least it ought to have been stated that " in one part thereof the defendant deposed, so and so, and in another part thereof, so and so." Such omissions as these would clearly be fatal either in a declaration or an indictment for a libel; Tabbart v. Tipper (a); and in an indictment for perjury, which is a yet more serious offence, at least equal precision ought to be required. ABBOTT, C. J.-I am of opinion that there is no ground for granting a rule either for arresting the judgment, or for a new trial, in this case. The statute 23 (a) 1 Camp. 350. 1826. The KING v. CALLANAN. 1826. The KING V. CALLANAN. Geo. 2, c. 11, provides that in every indictment for perjury it shall be sufficient to set forth the substance of the offence charged, and by what Court, or before whom, the oath was taken, averring such Court or person to have a competent authority to administer the same, together with the proper averment to falsify the matter wherein the perjury is assigned, without setting forth the bill, &c., or any part of any proceeding other than as aforesaid, and without setting forth the commission or authority of the Court or person before whom the perjury was committed. Now, if the indictment in this case has set forth all that is required by that statute, that is an answer to both these objections; and, I am of opinion that it has; for it sets forth the substance of the affidavit, and the person before whom the affidavit was sworn, and it avers that that person had competent authority to administer the oath. The object of the statute was, to remove the difficulties which had previously arisen out of the averments and matters usually set forth in indictments for perjury; therefore, we ought not to extend the operation of its language, so as to require more than we see it was the intention of the legislature to require. The averment that the person who administered the oath had competent authority to do so, is sufficient, for this reason, that at the trial the prosecutor cannot support that averment without proving the situation of the person administering the oath, and the nature of his authority. It seems to me, that it is sufficient if the indictment contains the name of the person, or the title of the Court, before whom the defendant was sworn, and, therefore, that there is nothing in the first objection. As to the second, it has been decided that in indictments for perjury it is sufficient to state the substance and effect of the false oath, which is stated here; though in declarations and indictments for libel more precision is necessary. Rex v. Solomon (a), is a case in point, and very much resembling the present. There the perjury was alleged to have been committed by the defendant as a witness in a civil action, and it appeared that the evidence given on that trial by the defendant, contained all the matter charged as perjury, but other statements, not varying the sense, intervened between the matters set: but in the indictment the evidence appeared to have been given continuously. I was of opinion that there was no fatal variance there, and I see no reason for being of a different opinion now. The other Judges concurred. 1826. The KING บ. CALLANAN. (a) 1 Ry. & M. 252. Rule refused. The KING v. The JUSTICES of SUFFOLK. Two justices had made an order for stopping up an unnecessary footway in the county of Suffolk. The notices described the footway as situate within the parish of Nowton, and within an extra parochial place in the hundred of Thingoe, both in the county of Suffolk, and as commonly know by the name of Hencote Lane. They were signed by the chief constables of the hundred of Thingoe, but they were served upon the justices by one of the clerks to the acting magistrates of that hundred. The order was not appealed against, but the sessions being of opinion that the notices ought to have been served as well as signed by the chief constables, or Where no tices of holding a special sessions for stopping up a footway, were signed by the chief constables, and served by a under their person acting authority upon the justices :Held, that the notices were given by the chief constables, within the meaning of the 13 G. 3, c. 78, s. 62, and regular. 1826. The KING V. The JUSTICES of SUFFOLK. one of them, refused to enrol the order. A rule nisi having been obtained for a mandamus commanding the sessions to enrol the order: Biggs Andrews now shewed cause, and contended that the service of the notices was irregular. The statute 13 Geo. 3, c. 78, s. 62, required that the notices of holding a special sessions for the purpose of stopping up a highway, should be given to the justices by the high constable, or other proper officer; and Rer v. The Justices of Surrey (a), was an express authority to shew that where such notices were served upon the justices by the magistrates' clerk, and not by the high constable, the proceeding was irregular. The word given in the statute must be taken to mean served, and as the notices here were served by the magistrates' clerk, and not by the high constable, they were clearly irregular. Alderson, contrà. The provision in the act of parliament, that the notices shall be given by the high constable, must have reference to the party who signs and issues the notices, and not to the party who is the mere hand to serve or deliver them. Here, the notices were signed and issued by the proper officer, and it was perfectly immaterial by whom they were served. Having been signed by the high constable, and served upon the justices by some persons, no matter whom, under his authority, they have been duly given within the meaning of the statute. HOLROYD, J.-It seems to me that the notices having been signed by the chief constables, and served, by a person acting under their authority, upon the magistrates, have been given by them, within the meaning of (a) Ante, vol. i. 64. |