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missioners appointed by the king to inquire into defective titles. Hawk P. C.b. 1, c. 69, s. 3. A false oath in any court, whether of record or not, is indictable for perjury. 5 Mod. 348. And perjury may be assigned upon the oath against siniony, taken by clergymen at the time of their institution. Lewis's case, 1 Str. 70.

A man may be indicted for perjury in an oath taken by him in his own cause, as in an answer in Chancery, or to interrogatories concerning a contempt, or in an affidavit, &c., as well as by an oath taken by him as a witness in the cause of another person. Hawk. P. C. b. 1, c. 69, s. 5 (1).

Perjury cannot be assigned upon a false verdict, for jurors are not sworn to depose the truth, but only to judge truly of the depositions of others. Id.

Where the prisoner was indicted for taking a false oath before a surrogate to procure a marriage licence, being convicted, the judges, on a case reserved, were of opinion that perjury could not be charged upon an oath taken before a surrogate. They were also of opinion that as the indictment in this case did not charge that the defendant took the oath to procure a licence, or that he did procure one, no punishment could be inflicted. Foster's case, Russ. and Ry. 459 (a); and see Alexander's case, 1 Leach, 63 ; see also 1 Vent. 370, and Deacon's Observations, 2 Dig. C. L. 1001.

Perjury cannot be assigned upon an affidavit sworn in the Insolvent Debtors' Court by an insolvent respecting the state of his property and his expenditure, for the purpose of obtaining an extended time to petition under the 10th section of the 7 Geo. 4, c. 57, without proving that the court by its practice requires such an affidavit. And such proof is not given by an officer of the court producing printed rules, purporting to be rules of the court, which he has obtained from the clerk of the rules, and is in the habit of delivering out as rules of the court, but which are not otherwise shown to be rules of the court, the officer professing to have no knowledge of the practice, except from such printed rules. Koops's case, 6 Ad. and E. 198 (b). ( *759 ] *Lord Tenterden, C.J., held that an indictment for perjury would not lie under the 71st section of the 7 Geo. 4, c. 57, against an insolvent debtor for omissions of property in his schedule, such offence being made liable to punishment under the 70th section as a substantive misdemeanor. Mudie's case, 1 Moo. and R. 128.

The object with which the oath was taken need not be carried into effect, for the perjury is complete at the moment when the oath is taken, whatever be the subsequent proceedings. Thus where the defendant was indicted for perjury in an affidavit which could not, from certain defects in the jurat, be received in the court for which it was sworn ; Littledale, J., was of opinion that nevertheless perjury might be assigned upon it. Hailey's case, Ry, and Moo. N. P. C. 94 (c). So it was ruled by Lord Tenterden that a party filing a bill for an injunction, and making an affidavit of matters material to it, is indictable for perjury committed in that affidavit, though no motion is ever made for an injunction. White's case, Moody and Malkin, 271 (d).

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(1) Resp. o. Newell, 3 Yeates, 414. (a) 1 Eng. C. C. 459. (6) Eng. Com. L. Rep. xxxiii. 51. (c) ld. xi. 383. (d) Id. xxii. 304.

Proof of the taking of the oath.] It is sufficient in the indictment to state that the defendant duly took the oath (1). M'Arther's case, Peake, N. P. C. 155. But where it was a verred that he was sworn on the Gospels, and it appeared that he had been sworn according to the custom of bis own country, without kissing the book, it was held a fatal variance, though the averment was afterwards proved by its appearing that he was previously sworn in the ordinary manner. Id.

The mode of proving that the defendant was sworn, in an indictment for perjury in an answer in chancery, is by producing the original answer signed by him, and proving his handwriting, and that of the Master in Chancery to the jurat, together with proof of the identity of the defendant. Morris's case, 1 Leach, 50; 2 Burr. 1189; Benson's case, 2 Campb. 508. The making of an affidavit is proved in the same manner by production and proof of the handwriting. Ante, p. 189.

Where the affidavit upon which the perjury was assigned, was signed only with the mark of the defendant, and the jurat did not state that the affidavit was read over to the party, Littledale, J., said, “ As the defendant is illiterate, it must be shown that she understood the affidavit. Wherc the affidavit is made by a person who can write, the supposition is that such person is acquainted with its contents, but in the case of a marksman it is not so. If in such a case a master by the jurat authenticates the fact of its having been read over, we give him credit, but if not, he ought to be called upon to prove it. I should have difficulty in allowing the parol evidence of any other person.” Hailey's case, 1 Č. and P. 258 (a).

It is incumbent upon the prosecutor to give precise and positive proof that the defendant was the person who took the oath. Brady's case, 1 Leach, 330; but this rule must not be taken to exclude circumstantial evidence. Price's case, 6 East, 323; Stark. Ev. 624, 2d ed.

It must appear that the oath was taken in the county where the venue *is laid ; and the recital in the jurat of the place where the oath [ *760 ] is administered, is sufficient evidence that it was administered at the place named. Spencer's case, Ry. and Moo. N. P. C. 93 (6). But though the jurat state the oath to be taken in one county, the prosecutor may show that it was in fact taken in another. Emden's case, 9 East, 437. A variance as to the place of taking in the same county, will not be material; thus, if it be alleged to be taken at Serjeants’ Inn, in London, and it appear to have been taken in Cheapside, this is not material. Taylor's case, Skinner, 403.

The making of a false affirmation by a Quaker or Moravian, must be proved in the same manner as the taking of a false oath. By the 22 Geo. 2, c. 46, s. 36, if any Quaker making the declaration or affirmation therein mentioned, shall be lawfully convicted of having wilfully, falsely, and corruptly affirmed and declared any matter or thing, which, if the same had been deposed in the usual form, would have amounted to wilful and corrupt perjury, every person so offending shall incur and suffer the pains, penalties, &c., inflicted on persons convicted of wilful and corrupt perjury. The 9 Geo. 4, c. 32, 3 & 4 Wm. 4, c. 49,3 & 4 Wm. 4, c. 82, and 1 & 2 Vict. c. 77, which admit the evidence of Quakers, Moravians, and Separatists, in all cases whatsoever, criminal or civil, contain similar clauses.

(1) Resp. d. Newell, 3 Yeates, 414.
(a) Eng. Com. L. Rep. xi. 383. (6) Id. xi. 384.

See ante, p. 121; and there are various other statutes by which false affirmations are subjected to the penalties inflicted on perjury.

Although the taking of a false oath required by statute is a misdemeanor, it is not perjury, unless made so by the statute. Mudie's case, ante, p. 759; and see De Beauvoir's case, 7 C. and P. 20 (a); and see also Harris's case, Id. 253 (b), and Dodsworth's case, 8 C. and P. 218 (c); as to giving false answers at an election. . By the 5 & 6 Wm. 4, c. 62, abolishing unnecessary oaths and substituting declarations in lieu thereof (but which, by s. 9, does not extend to proceedings in courts of justice, or before justices of the peace), persons making false declarations shall (s. 21) be guilty of a misdemeanor.

Proof of the substance of the oath.] In proving the substance of the oath, or the matter sworn to by the defendant, it was long a question how far it was incumbent on the prosecutor to prove the whole of the defendant's statement relative to the same subject matter, as where he has been both examined and cross-examined ; or whether it was sufficient for him merely to prove so much of the substance of the oath as was set out on the record, leaving it to the defendant to prove any other part of the evidence given by him, which qualified or explained the part set out. Thus Lord Kenyon ruled, that the whole of the defendant's evidence on the former trial should be proved, for if in one part of his evidence he corrected any mistake he had made in another part, it would not be perjury. Jones's case, Peake, N. P: C.33; see also R. v. Dowlin, Id. 170; 2 Chitty, C. L. 312, 2d ed.; Anon. cor. Lord Gifford, cited Ry. and Moo. N. P. C. 300 (d), vide post, 763. { *761] *It was formerly thought that an oath did not amount to perjury unless sworn in absolute and direct terms, and that if a man swore according as he thought, remembered, or believed only, he could not be convicted of perjury. 3 Inst. 166. But the modern doctrine is otherwise. It is said by Lord Mansfield to be certainly true, that a man may be indicted for perjury in swearing that he believes a fact to be true, which he knows to be false. Pedley's case, 1 Leach, 327. De Grey, C. J., also, in Miller's case, 3 Wils. 427; 2 Bl. 881, observed, that it was a mistake mankind had fallen into, that a person cannot be convicted of perjury who swears that he thinks or believes a fact to be true, for that he certainly may, and it only renders the proof of it more difficult. The same question was agitated in the Common Pleas, when Lord Loughborough and the other judges were of opinion, that belief was to be considered as an absolute term, and that an indictment might be supported on it. Anon. ; Hawk. P. C. b. I, c. 69, s. 7, (n) (1).

So perjury may be committed by swearing to a statement which in one sense is true, but which, in the sense intended to be impressed by the party swearing, is false, as in a case mentioned by Lord Mansfield. The witness swore that he left the party whose health was in question, in such a way that were he to go on as he then was, he would not live two hours. lt afterwards turned out that the man was very well, but had got a bottle of gin to his mouth, and true it was, in a sense of equivocation,

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(1) Commonwealth v. Cornish, 6 Binn. 249. (a) Eng. Com. L. Rep. xxxii. 422. (b) Id. 253. (c) Id. xxxiv. 360. (d) Id. xxi. 445.

that had he continued to pour the liquor down, he would in much less time than two hours have been a dead man. Loft's Gilb. Ev. 662.

No case appears to have occurred in our law of an indictment for perjury for mere matter of opinion. The following observations on this subject are from the pages of an eminent writer on the criminal law of Scotland.

If the matter sworn to, be one of opinion only, as a medical opinion, it cannot in the general case be made the foundation of a prosecution for perjury. But though a medical or scientific opinion cannot in general be challenged as perjury, because the uncertainty and division of opinion in the medical profession is proverbial; yet, if it assert a fact, or draw an inference evidently false, as for example, if a medical attendant swear that a person is unfit to travel who is in perfect health, or an architect shall declare a tenement to be ruined, which is in good condition, certainly the gross falsehood of such an assertion shall in neither case be protected by the plea that it is related to a matter of professional investigation. Alison, Princ. Cr. Law of Scotl. 468.

A doubt may arise, whether a witness can be convicted of perjury, in answer to a question which he could not legally be called upon to answer, but which is material to the point in issue. No decision upon this subject appears to have taken place in our courts; but in Scotland it has been held, that a conviction for perjury in such case cannot be maintained. Speaking of the general rule, that where the matter is pertinent to the issue, the party taking a false oath will be guilty of perjury, Mr. Alison says, there is one exception, however, to this rule, where the matter on which the perjury was alleged to *have been committed was [ *762 ] such, as it was not competent to examine the witness upon, however material to the issue; for law cannot lend the terrors of its punishment to protect a party in pursuing an incompetent and illegal train of investigation. On this ground it was, that the decision went, in the case of Patrick M'Curly, 4th of August, 1777, who had been precognosced with a view to a criminal trial, and, afterwards, as often happens, had given a different account of the matter on the trial itself. Towards the close of his deposition, he was asked whether he had ever given a different account of the matter, and he swore he had not. Upon this last falsehood he was indicted for perjury; and after a debate on the relevancy, the prosecutor abandoned the charge; nor, in truth, does it seem possible to maintain an indictment for perjury in such a case, where the question put was clearly incompetent, and the witness would have been entitled to decline answering it. Prin. Crim. Law Scot. 470.

Where on an indictment for perjury, upon the trial of an action, it appeared that the evidence given on that trial by the defendant contained all the matter charged as perjury, but other statements not varying the sense, intervened between the matters set out, Abbott, C. J., held the omission immaterial, since the effect of what was stated was not varied. Soloman's case, Ry. and Moo. N. P. C. 252 (a). So where perjury was assigned upon several parts of an affidavit, it was held that those parts might be set out in the indictment as if continuous, although they were in

(a) Eng. Com. L. Rep. xxi. 430.
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fact separated by the introduction of other matter. Callanan's case,

, 6 B. and C. 102 (a).

It seems that where the indictment sets forth the substance and effect of the matters sworn, it must be proved, that in substance and effect, the defendant swore the whole of what is thus set forth as his evidence, although the count contains several distinct assignments of perjury. Leef's case, 2 Campb. 134; 4 B. and C. 852 (6).

Where the indictment charged that the defendant in substance and effect swore, &c. and it appeared that the deposition was made by him and his wife jointly, he following up the statement of the wife, this was held to be no variance. Grendall's case, 2 C. and P. 563 (c).

An indictment for perjury alleged to have been committed in an affidavit sworn before a commissioner of the Court of Chancery stated that a commission of bankrupt issued against the defendant, under which he was duly declared a bankrupt. It then stated that the defendant preferred his petition to the Lord Chancellor, setting forth various matters, and amongst others, the issuing of the commission, that the petitioner was declared a bankrupt, and that his estate was seized under the commission, and that, at the second meeting, one A. B. was appointed assignee, and an assignment made to him, and that he possessed himself of the estate and effects of the petitioner." It then stated, that at the several meetings before the commission, the petitioner declared openly, and in the presence and hearing of the said assignee, to a certain effect. At the trial the [ *763 ] petition was produced, and it appeared that the allegation *was, that at the several meetings before the commissioners, the petitioner declared to that effect. It was held, that this was no variance, inasmuch as it was sufficient to set out in the indictment the petition in substance and effect, and the word “commission," was one of equivocal meaning, and used to denote either a trust or authority exercised, or the persons by whom the trust or authority was exercised, and that it sufficiently appeared, from the context of the petition set forth in the indictment, that it was used in the latter sense. Dudman's case, 4 B. and C. 850 (d).

Where the indictment professes to set out the substance and effect of the matter sworn to, and in the deposition a word is omitted, which is supplied in the setting forth of the deposition in the indictment, this is a fatal variance; the proper mode in such cases is, to set forth the deposition, as it really is, and to supply the sense by an innuendo.' Taylor's case, 1 Campb. 404.. And where the indictment, in setting out the substance and effect of the bill in equity upon the answer to which the perjury was assigned, stated an agreement between the prosecutor and the defendant respecting houses, and upon the original bill being read, it appeared that the word was house (in the singular number,) Abbott, C. J., said, The indictment professes to describe the substance and effect of this bill; it does not, certainly, profess to set out the tenor, but this I think is a difference in substance, and consequently a fatal variance. Spencer's case, Ry. and Moo. N. P. C. 98 (e).

The omission of a letter, in setting out the affidavit on which perjury is assigned, will not be material, if the sense is not altered thereby, as

(a) Eng. Com. L. Rep. xii. 109.

(6) Id. x. 459. (e) Id. xii. 264. (d) Id. x. 459. (e) Id.

xi. 384.

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