Page:The English Reports v1 1900.pdf/1492

1st, That by a certain original caption, which had remained, as was alleged, unaltered and unamended during the whole of the term in which it was removed and returned, it appeared that the original indictment had been taken before justices of the peace, who had no jurisdiction or cognizance of indictments for perjury at common law; and that the court of King's Bench had [520] no jurisdiction to hear and determine indictments so taken, nor any authority to amend the record of such caption, in the manner it was in that assignment of error stated to have been amended; all the subsequent proceedings in the court of King's Bench were therefore null and void in law, and not founded in competent jurisdiction and authority. 2d, That the writ of certiorari, whereby the indictment was removed into the court of King's Bench, was not returned by the justices of oyer and terminer, "under their seals, or the seals of any one or more of them," as the said writ required. 3d, That the precept of the sheriff of Middlesex for summoning the grand jury who found this bill of indictment, was issued by three only of the justices of oyer and terminer named in his majesty's letters patent, and not by four or more of them, as required by the said letters patent. 4th, That there was no writ of venire facias in this case filed of record in the court of King's Bench. 5th, That there was no writ of distringas corpora juratorum in this case filed of record in the court of King's Bench. 6th, That judgment had been given for the conviction of the defendant, instead of judgment for his acquittal. 7th, That the indictment and verdict were too uncertainly, doubtfully, and generally laid and found, to support the judgment against the defendant. 8th, That by the said indictment, the said Christopher Atkinson was supposed to have perjured himself, in swearing that he never did, at any time during his transactions with the said commissioners, charge more than the usual commission of sixpence per quarter, beyond the price he actually paid for any malt or grain purchased by him for the said commissioners as their cornfactor; yet that the assignments made in the said indictment, whereon the said Christopher Atkinson was convicted, only alleged that the said Christopher Atkinson did charge more than sixpence per quarter for and in respect of such malt or grain so purchased. 9th, That as Christopher Atkinson was found guilty of the facts contained in the 2d, 3d, 4th, 5th, 7th, and 9th assignments of perjury, merely, and not to be guilty of the residue of the said indictment, he was acquitted of making a false affidavit, and of all other facts and circumstances and criminal intentions and motives necessary to constitute the crime of wilful and corrupt perjury. 10th and last, That the judgment appointed no day for the said Christopher Atkinson to stand in and upon the pillory.

The plaintiff in error, for the verification of the several errors assigned by him, prayed the following writs of certiorari: 1st, A writ of certiorari, to be directed to the chief justice of the court of King's Bench, commanding him to certify the writ of certiorari, by which the indictment was removed into the court of King's Bench, with the return thereof, and the original record of the caption, as removed and returned with the indictment into the court of King's Bench. 2dly, A writ of certiorari, to be directed to the same chief justice, commanding him to certify the rule of the court of King's Bench, whereby the original record was amended, together with the amendments themselves. 3dly, A writ of cer-[526]-tiorari, to be directed to the same chief justice, commanding him to certify if any writs of venire facias and distringas corpora juratorum were affiled of record in the court of King's Bench. 4th, A writ of certiorari, to be directed to his majesty's justices of oyer and terminer for the county of Middlesex, commanding them to certify the letters patent above-mentioned, and the precept directed to the sheriff of Middlesex for returning the jury who presented the bill against the said Christopher Atkinson, and the names of the justices who issued such precept.

Of these several writs of certiorari their lordships were pleased to allow the plaintiff in error only those firstly and thirdly prayed by him, viz. that which required the chief justice of the King's Bench to certify the writ of certiorari by which the indictment was removed into the court of King's Bench, with the return thereof, and that which required him to certify whether any writs of venire facias and distringas corpora juratorum were affiled of record in the court of King's Bench, and to refuse the rest.

The two writs of certiorari so allowed being returned, it was argued in support of the errors so assigned that the law requires (E. Beareroft, G. Wood, R. Dallas), and the ancient and invariable form of the writ of certiorari commands the indictment to be sent into the court of King's Bench, under seal, without which solemnity the return is void; and consequently, in the present case, the return not being under seal, the court