1876. must be under the Common Seal, but which has been made by BROGDEN parol only.

v.

BROTHERS If executory, the Corporation cannot sue on such a conTHE QUEEN. tract; but if executed by them, they can recover. This is the utmost that could be held against the present contract; while, on the other hand, it might be fairly contended that section 4 is directory only, and not mandatory, and that the contract would be good in its present shape, even though executory.

I think, therefore, that the demurrer to this plea should be overruled.

The third plea is the ordinary plea of set-off in respect of the promissory notes. It appears doubtful whether the Statutes of Set-off apply to these proceedings. If they do apply, clearly the Crown could plead them, though the suppliants might be unable to do so.

It appears by the Attorney-General v. Allgood, in Parker's Reports, that the Statute 7 and 8 Will. III. c. 32, for a venire de novo, does not extend to the Crown, because it speaks of plaintiffs and demandants, and it is contended that the Statutes 8 Geo. II. c. 22 and 24, under which set-off is pleaded, as they speak of plaintiffs and defendants, do not apply to the Crown. "The Crown Redress Act, 1871," provides that the proceedings on a petition shall be conducted in the same manner, and subject as nearly as may be to the same rules of practice, as an ordinary action; but it may be contended that the right to plead a set-off is more than a rule of practice.

The English Act, 23 and 24 Vict. c. 34, regulating the procedure under petitions of right, provides expressly that set-off shall extend to these petitions.

The matter is somewhat doubtful, but on the whole I am inclined to think that the statute by which the right of set-off is given extends only to plaintiffs and defendants; and as the right to plead a set-off may be considered something more than a rule of practice, the third plea is bad.

Judgment for the Crown, with costs.

REGINA v. MCNICOL.

Indictment-Perjury-Jurisdiction-Competency to administer oath-Form of oath
-Resident Magistrate-Extended jurisdiction-Abandoning excess.

An indictment for perjury does not, since the 14 and 15 Vict. c. 100, s. 20, require any averment that the Court or Judge had competent authority to administer the oath.

An indictment which averred that a certain suit pending before G. L. M., a Resident Magistrate, for the recovery of £100, came on to be heard by G. L. M. as Resident Magistrate, and upon the hearing M. appeared as a witness, and was sworn before the said G. L. M. as being such Resident Magistrate, the said G. L. M. having due and competent authority, &c.; was held not to be bad for not averring that the Magistrate had the extended jurisdiction up to £100.

The form of oath set out in the indictment was not proved in its precise terms, two witnesses giving evidence of forms slightly differing; but as they were substantially to the same effect as the oath alleged, the variance was held immaterial.

It appeared that the suit in the Resident Magistrate's Court was for £100 on a plaint founded on a promissory note payable with interest, and alleging £117 to be due, but admitting a payment, .and abandoning the residue of £17, and claiming £100; but it was contended that it appeared on the face of the plaint that a larger sum was due for interest than was calculated, and therefore that there was not a sufficient abandonment to give the Resident Magistrate jurisdiction under "The Resident Magistrates Act, 1867," s. 23.

Held, That the abandonment was sufficient.

THIS was a Crown case reserved by Johnston, J.

CASE.

At the sitting of the Circuit Court of the Supreme Court at Christchurch in January, 1876, Charles McNicol was tried before me for perjury committed at the hearing of a civil suit in the Resident Magistrate's Court at Christchurch. The indictment commenced as follows:

"The jurors for our Lady the Queen, upon their oath, present that heretofore, to wit, at the Resident Magistrate's Court holden at Christchurch aforesaid, in the District of Christchurch, in the Colony of New Zealand, on the first day of December, in the year of our Lord one thousand eight hundred and seventy-five, before George Lilly Mellish, Esquire, then and yet being Resident Magistrate for the District of Christchurch aforesaid, and one of the Justices of our said Lady the Queen assigned to keep the peace of our said Lady the Queen in and for the said colony, and also to hear and determine divers actions and suits in the said District of Christchurch, a certain suit then pending in the said Court, in which Mary Ann Raphael, executrix of the estate of the late Alfred Isaac Raphael, late of Christchurch aforesaid, commission agent, deceased, was plaintiff, and one

1876.

May 23.

1876.

REGINA

v.

MCNICOL.

Charles McNicol was defendant, for the recovery of the sum of £100, came on to be heard and determined in due form of law, and was then and there heard by the said George Lilly Mellish as such Resident Magistrate and Justice of the Peace as aforesaid, and upon which said hearing of the said suit the said Charles McNicol appeared as a witness for and on his own behalf, and was then duly sworn, and took his corporal oath upon the Holy Gospel of God before the said George Lilly Mellish as being such Resident Magistrate and Justice of the Peace as aforesaid, the said George Lilly Mellish, as such Resident Magistrate and Justice of the Peace as aforesaid, then and there having due and competent authority to administer the said oath, that the evidence which he the said Charles McNicol should give to the Court there touching the matter then in question between the said parties should be the truth, the whole truth, and nothing but the truth," &c. &c.

In arrest of judgment, Dr. Foster, for the defendant, objected that the allegations of jurisdiction, and of the competency of the Resident Magistrate to administer the oath, were insufficient. He contended that, although a general averment of competency might have been sufficient under the Statute of 23 Geo. II. c. 11, yet as the indictment alleged that the Resident Magistrate had competent authority as a Resident Magistrate and Justice of the Peace, and as it appeared that the action was for £100, and therefore not within the jurisdiction of a Resident Magistrate, unless he had been appointed under the Act of 1867 to exercise such extended jurisdiction—and there was no allegation that he had been so appointed the indictment was insufficient in this respect. The learned Counsel relied upon Regina v. Overton (4 Q. B. 83), and distinguished the case before the Court from Regina v. Lavey (17 Q. B. 496). I said I would reserve the point, if necessary, for the consideration of the Court of Appeal.

The Resident Magistrate, being called as a witness and being asked the form of oath which was administered to the defendant, stated that it was in these words: "The evidence which you shall give to this Court shall be the truth, the whole truth, and nothing but the truth." The bailiff who actually administered the oath was afterwards called as a witness, and he said it was in the following words: "The evidence you shall give in this case shall be the truth, the whole truth, and nothing but the truth;" thus differing from the allegation in the indictment and the

evidence of the Resident Magistrate. I said I thought either of the oaths in evidence would have been sufficient to prove such a general allegation as alone is necessary, that the defendant had been duly sworn on the Gospels; but yet I had some doubt whether, the particular form of oath being set out in the indictment, it was not necessary to prove it as alleged.

At the trial, the plaint in the Resident Magistrate's Court was put in evidence, and was in the words and figures following:

"Resident Magistrate's Court, Christchurch. MARY ANN RAPHAEL, Executrix of Alfred Isaac Raphael, late of Christchurch, Commission Agent, deceased, v. CHARLES MCNICOL, Christchurch, Bootmaker. 1875, Nov. 25th. The plaintiff sues the defendant to recover the sum of one hundred pounds due on a promissory note, of which the following is a copy :-'I promise to pay the sum of fifty-one pounds one week from this date. I further promise to pay the sum of one pound per week for interest on the above loan until paid by me at the office of A. J. R. Christchurch, August 12th, 1874. CHAS. MCNICOL. £51 Os. Od.'""

1876.

REGINA

v.

MCNICOL.

Dr. Foster, for the defendant, contended that it appeared on the face of the plaint that the Resident Magistrate had no jurisdiction, as it appeared there that there was a miscalculation of the amount due on the promissory note for interest, and that the claim for the whole of the residue beyond the £100 had not been abandoned, under section 23 of "The Resident Magistrates Act, 1867;" that if the Court should hold the interest to commence from the date of the instrument, the amount left unabandoned would be (for one week and one day) £1 2s. 101d.; that if the Court should hold the interest to commence from one week after the date of the instrument, the amount left unabandoned would be 2s. 10 d. only; but there being in either case an excess left unabandoned, the Court was not asked to put a construction on the instrument, and the Resident Magistrate, under the provisions

1876.

REGINA

V.

MCNICOL.

of the Act, had no jurisdiction. I intimated that as this objection was not taken before the Resident Magistrate, I thought he had jurisdiction; but I reserved the point.

The jury found the defendant guilty, and bail was taken for his appearance when called upon to receive sentence.

The question for the opinion of the Court is, whether, under the circumstances, the conviction can be supported.

A. J. JOHNSTON.

Dr. Foster, for the defendant.

[The Crown was not represented by Counsel.]

With regard to the first objection to the indictment, it is a wellsettled principle that all the ingredients of the offence must be distinctly set out; and in Regina v. Overton (4 Q. B. 83) it was held that an indictment for perjury, which insufficiently stated that the proceeding at which the oath was taken was a judicial proceeding, was bad for not stating "the substance of the offence," according to the Statute 22 Geo. II. c. 11, s. 1,* although it was passed for the express purpose of removing difficulties in the conviction of persons charged with perjury. It is submitted that either the very words of the statute must be used in the indictment, or the particulars of the jurisdiction must be set out as at common law.

In this case the Court knows that the Resident Magistrate has not jurisdiction to hear and determine claims up to £100, except under circumstances which are not stated in the indictment; that, as a Resident Magistrate or a Justice of the Peace, he has no authority to do so without a special Proclamation. In all cases where the averment of authority to administer the oath has been held sufficient, the very words of the statute have been followed in the indictment. In Lavey v. The Queen (17 Q. B. 496), an indictment for perjury in a County Court, before the Judge of the Court, averred that the witness

*The 22 Geo. II. c. 11, s. 1, provides that in every indictment for wilful and corrupt perjury, "it shall be sufficient to set forth the substance of the offence charged upon the defendant, and by what Court or before whom the oath was taken (averring such Court, or person or persons, to have a competent authority to administer the same), together with the proper averment or averments to falsify the matter or matters wherein the perjury or perjuries is or are assigned, without setting forth the bill, answer, information, indictment, declaration, or any part of any record or proceeding, either in law or equity, other than aforesaid, and without setting forth the commission or authority of the Court, or person or persons, before whom the perjury was committed."