judgment is given on such verdict it shall be reversed; and it was argued, on the part of the plaintiffs in error, that the meaning was that the judgment should be reversed, and nothing more done. It is perfectly clear that such could not be Lord Holt's meaning, for he is speaking of civil cases, and as to those there is no doubt that where the verdict is defective, a venire de novo issues after judgment reversed as well as before. Lord Holt meant, no doubt, not that the judgment should be reversed merely, but that it should be reversed and a venire issue also. It is clear, that in a misdemeanour there may be a venire de novo after judgment-The King v. Trafford. And in a felony also it was done in Gray v. the Queen. We think, therefore, that this objection cannot prevail. Nor do we think that the direction to the Court of Quarter Sessions to award a venire de novo is void.

It has been held that a venire de novo will not lie to an inferior court of record in a civil action, in Trevor v. Wall, confirmed by Bishop v. Kaye; we suppose by analogy to the rule which prevents a Judge of an inferior court from granting a new trial on the merits. This rule does not extend to a new trial for irregularity; and a venire facias de novo might possibly issue even to an inferior court where the objection to the verdict was irregularity in the constitution of the jury. Whether this be so or not, we think the answer to the objection is, that a court of oyer and terminer (as the Court of Quarter Sessions is, though not usually so called) is not an inferior court in the sense of that term, where it is said that a venire facias de novo cannot go to an inferior court. Lord Tenterden, in The King v. Smith (9), expressly says that the Court of Quarter Sessions is not a court of inferior jurisdiction, when the question was, whether its minutes were receivable in evidence. It was also argued, that if a venire facias de novo could issue to another court, it could not to the Court of Quarter Sessions, because it was not a continuing court. There are two answers to this objection: first, that this is the recorder's court, in which there is not a succession of commissioners, the recorder alone presiding; and secondly, that the ordinary Court of Quarter

(9) 8 B. & C. 312; s. c. 6 Law J. Rep. M.C. 99.

An indictment for perjury contained four counts, stating that the defendant had retained U, an attorney, who had delivered his bill under 6 & 7 Vict. c. 73, and that after the expiration of one month from such delivery, U. had taken out a summons before a Judge to get the bill taxed; that the defendant, before shewing cause against the summons, made an affidavit denying that he had retained U, and perjury was assigned on this statement, the indictment alleging that it became and was material in shewing cause against the summons to ascertain whether the defendant did retain U.” Each of the counts concluded, “and so the jurors, &c. did say that the said defendant, &c. did commit wilful perjury," &c.

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Held, that the word "month" was to be construed with reference to the 6 & 7 Vict. c. 73, and meant calendar month.

Held, also, that it was sufficiently shewn that the Judge had jurisdiction to issue a summons on the application of the attorney, without negativing a prior application within the month by the party chargeable.

Held, also, that the fact of the retainer of U. by the defendant was a material ingredient in the inquiry.

Held, also, that the conclusion of the counts might be rejected as surplusage. The record stated the venire to be to try

(10) See the following case.,

Error to reverse a judgment given upon an indictment for perjury, tried at the Spring Assizes for the county of York, 1846.

The transcript of the record was as follows: "Yorkshire, to wit.-Be it remembered, that at the special session of gaol delivery and oyer and terminer, holden at York, &c., on Saturday the 6th day of December, in the ninth year of Queen Victoria, &c., by the oath of, &c., it is presented, that one W. Unwin, after the passing of a certain act of parliament &c. (6 & 7 Vict. c. 73.), and before and at the time of the committing of the offence hereinafter mentioned, was an attorney practising in England, and was duly admitted and practising as such attorney in her Majesty's Court of Exchequer at Westminster, and had done and transacted business as such attorney in her said Court of Exchequer, for and on behalf of J. N. Ryalls, late of, &c., and of J. Ironsides, and on the retainer and at the request of the said J. N. Ryalls; and the said J. N. Ryalls and the said J. Ironsides then and there became and were indebted in a large sum of money to the said W. Unwin for fees, charges, and disbursements for the business so done and transacted for the said J. N. Ryalls and the said J. Ironsides by the said W. Unwin as aforesaid, and the said W. Unwin afterwards and before the committing of the said offence hereinafter mentioned, to wit, on &c., so being such attorney as aforesaid, did deliver to the said J. N. Ryalls and the said J. Ironsides (they, the said J. N. Ryalls and J. Ironsides, then and there being the parties to be charged therewith) a bill for the fees, charges, and disbursements for the said business so done and transacted by the said W. Unwin, as such attorney as aforesaid, which said bill was then and there subscribed with the proper handwriting of him, the said W. Unwin, so being such

attorney as aforesaid. [And that no application was made to the said Court of Exchequer, so being the Court in which the said business was so done and transacted as aforesaid, or to any Judge thereof, or to any Court or Judge whatever, by the said J. N. Ryalls and J. Ironsides, so being the parties charged by the said bill, or by either of them, within one month after the said delivery of the said bill; nor did the Court of Exchequer, or any Judge thereof, or any other Court or Judge, within one month next after the said delivery of the said bill, refer the said bill, and the demand of the said W. Unwin as such attorney as aforesaid, thereupon to be taxed by the proper or any officer of the said Court of Exchequer, or of any other Court.] And by the jurors aforesaid, upon their oath aforesaid, it is further presented, that afterwards and after the expiration of one month after the delivery of the said bill as aforesaid, and before the committing of the said offence hereinafter mentioned, to wit, on &c., at &c.,the said W. Unwin, so being such attorney as aforesaid, (the said bill then and there remaining due, unpaid, and unsatisfied to him, the said W. Unwin,) did make application to Sir R. M. Rolfe, Knt., then and there being one of the Judges of the said Court of Exchequer, in which the said business was so done and transacted by the said W. Unwin as aforesaid, in the matter of him, the said W. Unwin, to refer the said bill so delivered as aforesaid, and the demand of him, the said W. Unwin, thereupon to be taxed and settled by the proper officer of the said Court of Exchequer. And thereupon afterwards, to wit, on &c., at &c., the said Sir R. M. Rolfe, so being such Judge of the said Court of Exchequer as aforesaid, issued a summons in the matter of the said W. Unwin, requiring the said J. Ironsides and J. N. Ryalls, or their attorney or agent, to attend the said Sir R. M. Rolfe, at his chambers in Rolls Garden, on &c., to shew cause why (amongst other things) the said W. Unwin's bill of costs in the causes and matters delivered to the said J. Ironsides and J. N. Ryalls should not be referred to the Master of the said Court of Exchequer to be taxed (the said bill of costs in the said summons mentioned then and there being the said bill for the fees, charges, and disbursements for the said business so done

and transacted by the said W. Unwin as such attorney as aforesaid, and so delivered by the said W. Unwin as aforesaid). And by the jurors aforesaid, upon their oath aforesaid, it is further presented that the said J. N. Ryalls afterwards and before the time appointed for shewing cause, and before shewing cause against the said application and the said matters mentioned in the said summons, to wit, on &c., at &c., came before H. W, then and there being a commissioner duly authorized and appointed to take and receive affidavits touching and concerning matters depending in the said Court of Exchequer, and touching and concerning the said matter of the said W. Unwin, in the said summons mentioned, and it then and there became and was material in shewing cause why the said bill of costs, in the said summons mentioned, should not be referred to the said Master to be taxed as in the said summons mentioned, to ascertain whether the said J. N. Ryalls did retain or employ, or otherwise authorize the said W. Unwin to act as attorney for him, the said J. N. Ryalls, and the said J. Ironsides, or for either of them, in or about the business mentioned in the said bill of costs of the said W. Unwin, in the said summons mentioned, or in or about any part of such business, and whether the said J. N. Ryalls had ever retained or employed the said W. Unwin to act as attorney or agent for him, the said J. N. Ryalls. And the said J. N. Ryalls so having come and being before the said H. W, so being such commissioner so authorized and appointed as aforesaid, then and there produced a certain affidavit in writing of him, the said J. N. Ryalls, in the said matter of the said W. Unwin, in the said Court of Exchequer, and then and there before the said H. W. in due form of law was sworn and took his corporal oath upon the Holy Gospel of God concerning the truth of the matters contained in the said affidavit (he, the said H. W., then and there having a lawful and competent power and authority to administer the said oath to the said J. N. Ryalls in that behalf); and that the said J. N. Ryalls, not having the fear of God before his eyes, but intending to cheat and defraud the said W. Unwin of the said fees, charges, and disbursements, then and there upon his oath aforesaid, before the said

H. W. (he, the said H. W. then and there having a lawful and competent power and authority to administer the said oath to the said J. N. Ryalls in that behalf) falsely, corruptly, knowingly, wilfully, and maliciously, in and by his said affidavit in writing, in the said matter of the said W. Unwin, in the said Court of Exchequer, did depose and swear (amongst other things) in substance and to the effect following, (that is to say), that he, the said J. N. Ryalls referred to in the summons of the Honourable Baron Rolfe in that matter (meaning the said summons of the said Sir R. M. Rolfe, Knight, in the said matter of W. Unwin above mentioned) did not retain or employ W. Unwin (meaning the said W. Unwin) to act as attorney for him (meaning the said J. N. Ryalls,) and J. Ironsides (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 that 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 manner whatever, as in and by the said affidavit of the said J. M. Ryalls in the said 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 the said 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, 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 most 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 second count was in the same form, except that it stated that the business was done on the retainer of J. N. Ryalls and J. Ironsides.

The third count was the same as the first count, omitting the portion between the brackets.

The fourth count was the same as the second, but omitting the portion between the brackets.]

"Whereupon it is commanded, &c. [entry of venire to the defendant to appear at the next general gaol delivery for the county of York "to answer the premises"], at which next general session, &c., holden at, &c., cometh the said J. N. Ryalls, &c., 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." Joinder by the clerk of the crown.

Venire

to the jurors to try "whether the said J. N. Ryalls be guilty of the perjury and misdemeanour aforesaid, or not guilty." "And the jurors of the said jury, &c. upon their oath say that the said J. N. Ryalls is guilty of the perjury and misdemeanour aforesaid. Whereupon it is considered that the said J. N. Ryalls be committed to the house of correction, at Wakefield, in and for the said county, and there imprisoned and kept to hard labour for ten calendar months."

A writ of error having been brought on this record, it was argued, in Hilary term, 1847 (Jan. 23), by

Pashley, for the plaintiff in error.-First, all the counts are bad for not stating that the application to tax was made after the expiration of a calendar month, as by the

interpretation clause of 6 & 7 Vict. c. 73. the word "month" in the act is to have that meaning. Prima facie "month" means lunar month, except in some mercantile transactions-Com. Dig. tit. Ann.' (B), (1).

[WIGHTMAN, J.-Taking the interpretation clause and the act together, ought we not in a proceeding relating to the taxation of an attorney's bill to take notice that "month" means calendar month?]

The jurisdiction to tax on the application of the attorney depends on a calendar month having expired; and not being strictly averred, it avoids the indictment. In the Marshalsea case (2), it is said, "where the sheriff, who is prescribed by the lord to hold his turn within the month after Michaelmas, &c., holds his turn after the month, and takes an indictment of robbery at the same turn, and the indictment is by certiorari removed into the King's Bench, by the advice of all the Justices the party so indicted was discharged, because the indictment was utterly void and coram non judice, forasmuch as at that time the sheriff had not

authority to hold the court." The King v. Cohen (3) was cited.

[COLERIDGE, J.-Jurisdiction depends on the authority to enter upon the inquiry it may not appear till after that is begun that a calendar month has not elapsed.]

Then, as to the point raised on the third and fourth counts, which do not negative any application having been made by the party chargeable. Section 37. only gives jurisdiction to tax on the application of the attorney in case the party chargeable has not applied within the month. A special statutory authority must be strictly pursued-Christie v. Unwin (4), Brancker v. Molyneux (5), The Queen v. Smith (6).

[COLERIDGE, J.-This comes to much the same as the first point; for suppose on application by the attorney, a previous application by the party chargeable was alleged and denied, and affidavits used, would not they be the subject of perjury?]

Perhaps that might be so; but it does not determine the present question.

(1) See Simpson v. Margetson, ante, Q.B. 81. (2) 10 Rep. 76, b.

(3) 1 Stark. N.P.C. 511.

(4) 11 Ad. & El. 373; s. c. 9 Law J. Rep. (N.S.) Q.B. 47.

(5) 4 Man. & Gr. 226.

(6) 15 Law J. Rep. (N.s.) M.C. 41.

[WIGHTMAN, J.-Suppose the application by the party failed on account of a defective affidavit, could the attorney still apply?]

That would depend upon whether the first application was abortive or not-The Queen v. the Great Western Railway Company (7), Joynes v. Collinson (8).

[COLERIDGE, J.-If a man is tried at York for a murder, which afterwards turns out to have been committed in Lancashire, surely perjury might be assigned on the evidence.] The indictment must allege all circumstances necessary to give jurisdiction-The King v. Jones (9), The King v. Punshon (10), The Queen v. Ewington (11), The Queen v. Bishop (12), Paine's case (13).

Thirdly, the question of retainer is immaterial under section 37, on which this proceeding was taken. The Judge has only to decide on the amount of the bill; the liability of the party is for a jury.

[PATTESON, J.-I always consider the retainer material to the inquiry, for if it is disputed I allow the attorney to bring his action.

If so, the materiality is not properly averred; it is not stated that the affidavit was either meant to be, or was, in fact, used in shewing cause before the Judge, but only that it then and there, i. e. before the commissioner, became material to ascertain in shewing cause whether the defendant below had retained Unwin.

[COLERIDGE, J.-It might have been more artificially pleaded; but still it is averred, and the jury have found the fact.]

It may be material to ascertain a fact without the fact itself being a material one -The Queen v. Hewins (14). The Queen v. Goodfellow (15) shews that a statement that "it became and was material to ascertain the truth of the matters sworn to" is not a good averment of materiality.

[COLERIDGE, J.-I should think that

decision proceeded on its not being stated what it was material to ascertain.]

Fourthly, the entry of the verdict and judgment are uncertain for not shewing to which of the counts they refer; or, if not uncertain, they will be referred to the last count, which is bad for the reasons before stated. "Misdemeanour" has no definite meaning-The King v. Salomons (16). The King v. Powell (17), which decided that misdemeanour" is nomen collectivum, is overruled by O'Connell v. the Queen (18); and the same view has since been taken in this Court as to the word "felony," in Campbell v. the Queen (19), where it was held that the word might import four different offences, in the four different

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counts.

[PATTESON, J.-I am the only survivor of those who decided The King v. Powell. It turned only on the word "misdemeanour" being nomen collectivum; but it was never argued that both counts were for one offence. That decision is overruled as to one good count supporting the judgment, but is otherwise untouched. Now, if "misdemeanour" is nomen collectivum, then there is here a finding on all the counts; and if the last is bad, the point in O'Connell v. the Queen arises: if it be not nomen collectivum, the judgment must apply to the last count only, and so it comes round again to the same question as to the goodness of that count.]

Even assuming that count to be good, still the finding is uncertain. If two burglaries committed in different parishes were charged in the same indictment, and the jury found the prisoner guilty of "the burglary aforesaid," that finding could not apply to each offence. If the jury expressly found him guilty of one of the offences only, it would be error if there were no entry of an acquittal as to the other.

COLERIDGE, J.-It all depends upon whether this is nomen collectivum or not; if it is, the verdict is good.]

Lastly, the conclusion of the indictment that "the jurors did say" instead of "do say," is erroneous- The King v. Perin (20).