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of King's Bench was never legally possessed of the indictment, and therefore all the proceedings thereon in that court are null and void. In the next place, there were no words to constitute a proper and legal return to the writ of certiorari, to remove the said indictment; but the same was imperfect, the justice of oyer and terminer not having stated therein that by virtue of the writ he had sent the indictment, with all things touching the same, as by the writ he was commanded; but having merely annexed the caption and indictment to the writ of certiorari, and stated that the execution of the writ would thereby appear without any words of return at all, so that upon this ground the indictment was not properly and legally before the court of King's Bench. That the return made to the house by the lord chief justice of the King's Bench, in obedience to the writ of certiorari from the house, was a strong and pointed authority to prove these two positions, because that return was under seal, and was expressed to be so in the return itself, and the return also expressed an obedience to the writ in the terms of the writ That the indictment itself was substantially defective in two things, viz. it supposed a fraud committed by the plaintiff in error upon the commissioners for victualling his majesty's navy; and it did not alledge that the charges in which the fraud was supposed to consist, were charges to or upon the commissioners; nor did it state to or upon whom such charges were made. It did not falsify the affidavit in the terms of the affidavit, or in terms of similar import, but in terms of larger extent and import, and which might be true, and yet the plaintiff in error be guilty of neither [527] fraud or perjury, viz. the affidavit was, that he did not charge beyond a certain sum for the corn or grain he purchased, and the allegation was, that for and in respect of, he did charge beyond the given sum; which words, in respect of, might include lighterage, freight, and many collateral and incidental expences attending the corn or grain jointly with the charge for the corn or grain, and bearing that sense, the plaintiff in error was not guilty either of fraud or perjury. That the verdict had not found sufficient facts to warrant the judgment, having found the plaintiff in error guilty of only a part of that which constituted the crime, and acquitted the plaintiff in error of the residue of the indictment, and in criminal cases the law will make no intendment beyond the words of the finding. And no time was fixed for the pillory, whereas every judgment of punishment ought to be certain and definite, and a defendant ought not to be left to the mercy of the officer intrusted with the execution of the sentence.

On behalf of the crown it was said (R. P. Ardon, A. Macdonald), that as to the 1st error assigned, it would be easy to shew the propriety and legality of every step taken in the course of these proceedings; but as, in the present instance, there did not appear upon the record any thing to verify this assignment, it was needless, and would be impertinent, to enter into the question of the matter thereby suggested. The caption upon record was strictly applicable to the known and usual form of commissions of oyer and terminer, and in stating that commission, and a session holden under it, the caption contained every thing which the law requires to be stated, viz. that the persons before whom this indictment was preferred, had a competent authority to take an indictment for perjury at the common law.

As to the 2d error assigned, it was submitted, that the seals of the justices of oyer and terminer are not essentially necessary, either for the purpose of removing or authenticating the record transmitted to the court of King's Bench. The return of the justices to this certiorari was a mere ministerial act, which the court above required to be authenticated in a particular form; but as it was a form prescribed by no positive law of the land, the court which requires it may receive and adopt any other authentic certificate, that the record transmitted is the genuine record of the court below. The omission of this form could only be objected to by the court itself. But by receiving and acting upon the indictment thus returned, the court fully admitted the authenticity of the indictment removed; nor could this omission, if it could afford matter of objection, be urged as such in the present stage of the business by the party making it, who having obtained a certiorari upon his own prayer, (as appeared by an indorsement on the back of the certiorari as returned to their lordships,) for the purpose of removing this record, might have applied in time to the court of King's Bench to quash the return, if it was defective in any respect, or to have awarded another certiorari for the obtaining one more perfect: but so far from making [528] any objection to the return, the plaintiff in error appeared, and pleaded to this indictment in the court of King's Bench, as to the actual indictment which had been duly found in, and removed by him from the court