The King against Robert Roper
| Jurisdiction | England & Wales |
| Judgment Date | 19 May 1817 |
| Date | 19 May 1817 |
| Court | Court of the King's Bench |
English Reports Citation: 105 E.R. 1265
IN THE COURT OF KING'S BENCH.
[327] the king against robert roper. Monday, May 19th, 1817. After verdict of "guilty" on an indictment for perjury in an answer exhibited to a bill filed in the Court of Exchequer, the Court refused to arrest the judgment, on the ground that the answer was intituled as an answer to a bill of the plaintiffs, but varying the Christian name of one of them. The defendant was convicted at the last London sittings of perjury, in an answer to a bill filed in the Court of Exchequer. The indictment set forth the exhibiting of the bill in the said Court against the defendant by thirteen complainants, then all underwriters of the City of London (naming them, and among them Francis Cavendish Aberdein); and shewed the matters contained in the said bill () as in and by the said bill of complaint of the said complainants (naming them as before), remaining filed as of record in the said Court of Exchequer at Westminster, (among other things) more fully appears. It then averred, that the defendant exhibited and produced his answer to the said bill of the said complainants (naming them as before), intituled "The answer of Robert Roper, the defendant to the bill of complaint of (naming the several complainants, but instead of Francis Cavendish Aberdein, naming him J. C. Aberdein)." The indictment then went on to aver, in the usual form, the deposing by the defendant, before a Baron of the Exchequer, to the contents of the answer, and to assign the perjuries thereon. On a former day in this term, it was moved in arrest of judgment, by reason of the incongruity apparent on the indictment, which alleged an answer, intituled an answer to a bill filed by J. C. Aberdein to be an answer to a bill filed by Francis Cavendish Aberdein; and it was [328] urged, that this answer, like an affidavit wrongly intituled, or a plea filed in a wrong name, ought to be treated as a nullity: and, therefore, was incapable of sustaining an assignment of perjury. If the fact were so, it might and ought to have been alleged in the indictment, that Francis Cavendish Aberdein exhibited his bill by the name of J. C. Aberdein, which would have explained the apparent incongruity; but an answer to a bill of J. C. Aberdein can never, while unexplained, be taken to be an answer to a bill filed by F. C. Aberdein. If a variance in the intituling of an answer were allowable in one particular, it might be in a hundred; but this would lead to great uncertainty, and, perhaps, to fraud. And the reason (a) See abstract of indictment in note at the end of this case. 1266 THE KING -V. ROPEK 6M.AS. 329. given why an affidavit defectively intituled cannot be read, is, because perjury cannot be assigned upon it; and, therefore, riot only the surnames of the parties, but the Christian names also must be truly inserted, otherwise the affidavit is inadmissible (a)1. So, a rule of Court for discharging B. out of custody, intituled, by mistake, in an action A. against B., where the action is against B. and C., is nugatory, although the defendant be only charged in custody in one cause at the suit of A,(b)1. All which authorities apply with equal force to an answer defectively intituled. Gurney and Andrews shewed cause, and argued, that an inference was not properly to be drawn from the answer being intituled an answer to a bill exhibited by J. C. A., that it was not an answer to a bill exhibited by F. C. A., because F. C. A. might well have exhibited his [329] bill in the name of J. C. A.; and if it had been so averred, such an averment, as it is admitted, would have been unexceptionable. The allegation that F. C. A. exhibited his bill, applied to the person exhibiting it, not to the name in which it was exhibited. The identity of the party is a material allegation, and therefore, it must be presumed, was proved at the trial. And so of the identity of the answer. Whether or not the bill was in his own name or in that of J. C. A., being merely matter of description not affecting the identity, required no proof; for there was nothing inconsistent with its being his bill that it was exhibited in a different Christian name. Although a man cannot lawfully have two Christian names, yet, it often happens, that in practice he varies from his name of baptism. And it would be highly dangerous if a defendant, by misintituling his answer, were allowed to avoid the penal consequences of it, although there should be no doubt of the fact of its being an answer to the particular bill, and it should appear that he has had the full benefit of it as an answer; which appears in this case, by its being averred that the answer still remains as of record. Knowlys and Lawes contra. On the principle which governed the decision of Griffiths v. Wood (a)2, where it was held, that an answer intituled in the name of Edward, the bill being in the name of Edmund, was no answer, and incapable of being treated as a ground of accusation, this rule must be made absolute. On the same principle, where an indictment for forgery alleged that the bill purported to be directed to one [330] J. King by the name of J. Ring, the bill being in fact addressed to J. Ring, judgment was arrested ; and the reason given was, because the indictment was absurd and repugnant in...
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