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below. Every writ of inquiry in a civil suit requires that the sheriff should return the inquisition under his own seal, and the seals of those by whom the inquisition is taken, and yet this requisition is in practice entirely disregarded. In the case of the rebel lords in 1745, the certiorari, directed to the commissioners of oyer and terminer, before whom indictments against them were taken, required the return to be under seal, in the same terms that are used in the writ of certiorari now under consideration; but the then two chief justices of England, and chief baron of the Exchequer, whose names appear to the return of that writ, made their return of the indictments against those lords not under seal. (State Trials, vol. 11. page 591.) No objection was ever taken to such return; and, in fact, it is the usual practice in the court of King's Bench to receive them without seals; and the present objection would, if allowed, apply to the greatest part of the judgments given in that court, upon indictments removed into the same.

As to the 3d error assigned, it was sufficient to answer, that, by the refusal of the certiorari prayed for the verification thereof, this ground of error was wholly unconnected with the actual record now under consideration, and, of course, did not require to be obviated in argument.

The 4th and 5th errors assigned were falsified in point of fact, by the return to the writ of certiorari, stating in terms the writs of venire facias & distringas corpora juratorum, and that they now remained filed of record in the court of King's Bench.

The 6th and 7th errors assigned, being general errors, required no specific answer.

The 8th assignment of error was unsupported by fact. There was no assignment of perjury in the indictment, except the 1st, 6th, and 8th, (and of which the plaintiff in error was acquitted,) in which it was not particularly alleged, that the said Christopher Atkinson charged a certain specified sum of money mere than the usual commission of 6d. per quarter, "beyond the price he actually paid," upon the several occasions stated in the assignments.

As to the 9th error assigned, every allegation which is necessary to introduce, explain, and found the criminal charge, both in point of circumstance and motive, as well as to warrant the general conclusions of guilt resulting from the whole, were, in point of law, connected with, and made a part of each several assignment of perjury, and could not be considered as forming a part of the first, more than of any other subsequent assignment of perjury. By finding a defendant guilty of any one assignment of perjury, the jury in effect find all the facts in that indictment, which by necessary reference and intendment are material, in order to substantiate such charge in point of law. An acquittal "of the residue of the indictment" cannot be understood as [529] meaning more than an acquittal of the other assigned acts of perjury, and not as a negative finding in respect to those very facts which are essential in order to constitute the crime of perjury in the very instances in which he is convicted.

As to the 10th error assigned, it is not the ordinary practice of this or any other court of criminal jurisdiction, to make the day upon which execution of any corporal punishment is to be done, a part of the original sentence. The time of inflicting such punishment is usually either left to the discretion of the officer to whom the execution of such sentence belongs, or is appointed by a particular rule for that purpose by the court, awarding such punishment. In the Court of King's Bench the time is usually fixed by a distinct and substantive rule of court, perfectly collateral to the sentence, itself. In capital cases, upon the circuit, unless the judge fixes a day for this purpose, the sheriff usually appoints one at his discretion. In some cases, however, where the judge has appointed no time, the crown interposes and controls this otherwise discretionary power of the ordinary executive officer, by particular appointment of time and place of execution. (So in Dr. Cameron's case, Forster's Reports, p. 110. and Dr. Hensey's case, 1st Burr. p. 650.)

After hearing counsel on this writ of error, the following questions were put to the Judges: "1st, Whether the assignments of error by the plaintiff were duly and sufficiently made? 2d, Whether there was error in any of the respects or instances assigned as errors by the plaintiff in error? 3d, Whether there was any error in the record of the judgment?" When the Lord Chief Baron delivered the unanimous opinion of the Judges present upon the two last questions in the negative, which rendered an answer to the first question unnecessary; whereupon it was ordered and adjudged, that the judgment given in the court of King's Bench should be affirmed, and that the record should be remitted, etc. (M. S. Jour. sub anno 1785. p. 821.)