court who might otherwise claim or demand the same; and the clerk of assize, or his associate or prothonotary, or other proper officer of the court, (who shall be attending when such prosecution is directed), shall and is hereby required without any fee or reward, to give the party injured, or other person undertaking such prosecution, a certificate of the same being directed, together with the names of the counsel assigned him, by the court; which certificate shall in all cases be deemed sufficient proof of such prosecution having been directed as aforesaid; provided that no such direction or certificate shall be given in evidence upon any trial to be had against any person upon a prosecution so directed as aforesaid.

Indictment for Perjury in an Affidavit to hold to Bail.

London, to wit:-The jurors of our lady the Queen upon their oath present, that J. S., late of London, grocer, wickedly and maliciously contriving and intending unjustly to aggrieve one J. N., and to put him the said J. N. to great expense, and also unjustly and maliciously to cause him the said J. N. to be arrested for the sum of fifty pounds, by virtue of a certain writ of our lady the Queen, called a capias, to be sued out and prosecuted at the suit of him the said J. S., on the third day of August, in the ninth year of the reign of our sovereign lady Victoria, at London aforesaid, at the parish of Saint Dunstan in the West, in the ward of Faringdon Without, came in his proper person before Sir J. P., knight, then being one of the justices of the court of our lady the Queen before the Queen herself, and then and there produced a certain affidavit in writing of him the said J. S., and then and there before the said Sir J. P., knight, in due form of law was sworn, and took his corporal oath upon the Holy Gospel of God concerning the truth of the matters contained in the said affidavit, (he the said Sir J. P. knight, then and there having a lawful and competent power and authority to administer the said oath to the said J. S. in that behalf); and that the said J. S., being so sworn as afore. said, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, then and there, upon his oath aforesaid, before the said Sir J. P., knight, (the said Sir J. P., knight, then and there having a lawful and competent power and authority to adminis

ter the said oath to the said J. S. in that behalf), falsely, [ *567] corruptly, knowingly, wilfully, and maliciously, *in and by his said affidavit in writing, did depose and swear (amongst other things) in substance and to the effect following, that is to say, that J. N. (meaning the said J. N. above mentioned) was then justly and truly indebted unto him the said J. S. in the sum of fifty pounds, for goods sold and delivered by the said J. S. to the said J. N.,

and at his (meaning the said J. N.'s) request; as in and by the said affidavit of the said J. S. affiled in the said court of our said lady the Queen before the Queen herself, more fully and at large appears: Whereas in truth and in fact, the said J. N., at the time the said J. S. took his said oath and made his affidavit aforesaid, was not indebted to him the said J. S. in the sum of fifty pounds for goods sold and delivered by the said J. S. to the said J. N.; and whereas, in truth and in fact, the said J. N. was not then indebted to the said J. S. in the sum of fifty pounds on any account whatsoever; and whereas, in truth and in fact, the said J. N. was not then indebted to the said J. S. in any sum whatsoever, on any account whatsoever: And so the jurors aforesaid, upon their oath aforesaid, do say, that the said J. S., on the third day of August in the year last aforesaid, at London aforesaid, in the parish and ward aforesaid, before the said Sir J. P., knight, (he the said Sir J. P., knight, then and there having such power and authority as aforesaid), by his own act and consent, and of his own most wicked and corrupt mind, in manner and form aforesaid, falsely, wickedly, wilfully, and corruptly did commit wilful and corrupt perjury; to the great displeasure of Almighty God, in contempt of our lady the Queen and her laws, to the evil and pernicious example of all others in the like case offending, and against the peace of our lady the Queen, her crown and dignity. See the precedents, 4 Went. 230, 249, 271; Cro. Cir. Com. 339, 340, 356. It is not necessary to set out the jurat of the affidavit R. v. Embden, 9 East, 437; nor is it necessary to state or prove that the affidavit was affiled in or exhibited to the court, or in any manner used by the defendant or others. R. v. Crossley, 7 T. R. 315. But the indictinent inust shew a proceeding pending, in order to give jurisdiction to the person administering the oath. Reg. v. Pearson, 8 C. & P. 119. See R. v. Koops, 6 A. & Ell. 198: Reg v. Gardiner, 2 Mood. C. C. 95; 8 C. & P. 737. Where the perjury was charged to have been committed in an affidavit sworn on an interpleader rule, and the indictment set forth the circumstances of the previous trial, the verdict, judgment, and execution, the notice by the defendant to the sheriff not to sell the goods, and his affidavit that they were his property, but omitted to state that a rule had been obtained under the Interpleader Act, it was held bad, as not shewing that the affidavit was made in a judicial proceeding. Reg. v. Bishop, C. Mar. 302. And where the indictment stated that certain persons were commissioners acting in the execution of certain acts of parliament relating to the duties of assessed taxes; and that at a meeting held by them for the purpose of hearing and determining appeals against the certificate of supplementary charges made by J. L., crown surveyor, in pursuance of the said acts, a certain appeal of one W. H. came on in due form of law to be heard; and that the defendant appeared before the said commissioners as a witness for W. H. on the hearing of the said appeal, and took his corporal

oath, &c. it was held bad, as not sufficiently shewing that the oath was taken in a judicial proceeding. Overton v. Reg., 4 Q. B. 83; 3 G. & D. 133. See also Reg. v. Bartlett, 1 Dowl. & L. 95. The indictment must allege that the defendant swore wilfully and corruptly. R. v.

Stevens, 5 B. & C. 246. Where a true bill for perjury was [ *568] found, and the judge at the assises *having refused to try it on account of manifest imperfections in the record, a new bill was preferred, whereupon the defendant was four.d guilty; but a new trial was granted; and then the prosecutor, instead of taking down the old record again, preferred a new indictment, (for the same offence), and removed it into the Court of King's Bench by certiorari, the court refused to stay proceedings upon that indictment until the prosecutor paid the costs of the former proceedings. R. v. Tremearne, 5 B. & C. 761; 7 Dowl. & Ry. 684.

It is the practice of the Central Criminal Court not to try an indictment for perjury arising out of a civil action, until the action is determined, unless the civil action be postponed by the court, that the indictment may be tried first. R. v. Ashburn, 8 C. & P. 50.

Perjury is punishable at common law with fine and imprisonment (to hard labour, 3 G. 4, c. 114, at the discretion of the court; and by stat. 2 G. 2, c. 25, s. 2, the judge may order the party to be transported, or to be imprisoned and kept to hard labour in the house of correction, for any term not exceeding seven years. The false affirmation of a Quaker, Moravian, and Separatist, or of a person who shall have been a Quaker, or a Moravian, is punishable in the same manner. 22 G. 2, c. 46, s. 36; 9 G. 4, c. 32, s. 1; 3 & 4 W. 4, c. 49; 3 & 4 W. 4, c. 82; 1 & 2 Vict. c. 77. See 5 & 6 W. 4, c. 62, as to false declarations in lieu of oaths; 8 & 9 Vict. c. 48, as to declarations in lieu of oaths, before commissioners in bankruptcy; and 1 & 2 Vict. c. 105, as to the form of administering oaths: (ante, p. 155).

The offences of perjury and subornation of perjury, &c. are not triable at any quarter sessions. See 5 & 6 Vict. c. 38, s. 1, (ante, p. 69). Nor, as it seems, have justices of the peace cognizance of the offence of perjury at common law, so as to apprehend or commit a person charged with it. See Reg. v. Bartlett, 1 Dowl. & L. 95; 2 Hawk. c. 8, s. 64; 1 Brod. & B. 548; 3 G. & D. 210.

An oath or affirmation, to amount to perjury, must be taken in a judicial proceeding, before a competent jurisdiction: it must also be material to the question depending, and false. R. v. Aylett, 1 T. R. 69.

1. It must be taken in a judicial proceeding.-As if the defendant swear falsely, when examined as a witness at a trial; or in an answer to a bill in equity; 5 Mod. 348; 3 Inst. 166; or in depositions in a court of equity; 5 Mod. 348; or in an affidavit in the court of Queen's Bench, Common Pleas, Chancery, &c.; 5 Mod. 348; 1 Show. 335, 397; 1 Ro.

Rep. 79, per Coke, C. J.; or upon a commission for the examination of wituesses; Cro. Car. 99; see 1 Bos. & P. 240; or in justifying bail in any of the courts; or upon an examination before a magistrate; or in a judicial proceeding in a court baron, 5 Mod. 348; 1 Mod. 55, per Twisden, J. or ecclesiastical court, 5 Mod. 348, or any other court whether of record or not. See 1 Hawk. c. 69, s. 3. It was doubted whether purjury could be assigned upon the oath made for the purpose of obtaining a marriage licence; R. v. Alexander, 1 Leach, 63; but see 1 Vent. 370; and in R. v. Foster, R. & R. 459, a false oath taken before a surrogate, to, procure a marriage license was holden not sufficient to support a prosecution for perjury. In such a case it has been usual to indict as for a mere misdemeanor at common law. If, in such case, the indictment only charges the taking the false oath, without stating that it was for the purpose of procuring a license, or that a license was thereby procured, the party cannot be punished thereon as for a misdemeanor; but if the purpose is to obtain a licence, and the license is obtained, [ *569 ] and the marriage had, the party may be indicted as for a misdemeanor. R. v. Foster, R. & R. 459. But see now stats. 3 G. 4, c. 75, s. 10, and 6 & 7 Will. 4, c. 35, s. 38, which subject a false oath or declaration made for this purpose to the penalties of perjury. Perjury may be assigned upon the oath against simony, taken by clergymen at the time of their institution. R. v. Lewis, 1 Str. 70.

2. It must be taken before a competent jurisdiction.-For, if it appear to have been taken before a person who had no lawful authority to administer it, 3 Inst. 165, 166, or who had no jurisdiction of the cause, 3 Inst. 166; Yelv. 111, the defendant must be acquitted. See R. v. Crossley, 7 T. R. 315; 1 Hawk. c. 69, ss. 3, 4; Bac. Abr. Perjury, (A): R. v. Dunn, 1 D. & R. 10: R. v. Hanks, 5 C. & P. 419. But it is not necessary in the indictment to shew the nature of the authority of the party administering the oath. R. v. Callanan, 6 B. & C. 102. An indictment for perjury upon the hearing of an information for penalties under the Beer Act, 1 W. 4, c. 64, s. 15, did not allege that the magistrates were acting for the division in which the house was situated, and upon that ground was held to be bad. Reg. v. Rawlins, 8 C. & P. 439. Commissioners of bankruptcy acting under a fiat grounded on an insufficient petitioning creditor's debt, have authority to take examinations in order to the adjudication that the party is a bankrupt, but not afterwards; and therefore a person swearing falsely before them, after the adjudication, is not guilty of perjury. Reg. v. Ewington, 2 Mood. C. C. 223; C. & Mar. 319. See the 5 & 6 Vict. c. 122, s. 81. A person is indictable who gives false evidence before a grand jury on a bill of indictment, and the false swearing may be proved by the evidence of other witnesses, examined before them on the same bill. Reg. v. Hughes, 1 C. & K. 519.

3. That part of the oath upon which the perjury is assigned, must be material to the matter then under the consideration of the court, 3 Inst. 167: R. v. Nichol, 1 B. & Ald. 21.-As for instance, if a witness be asked whether goods were paid for on a particular day, and he answer in the affirmative—if the goods were really paid for, though not on that particular day, it will not be perjury, 2 Ro. Rep. 41, 42, unless the day be material. So, if a man swear that J. S. beat another with his sword, and it turn out that he beat him with a stick, this is not perjury; for all that was material was the battery. Hetley, 97. See 1 Hawk. c. 69, s. But perjury may be assigned upon a man's testimony as to the credit of a witness. 2 Salk. 514. So, every question in cross-examination which goes to the witness's credit is material for this purpose. Reg. v. Overton, 2 Mood. C. C. 263; C. & Mar. 655. Or he may be perjured in his answer to a bill in equity, though it be in a matter not charged by the bill. 5 Mod. 348; semb. 1 Sid. 274, 106. See R. v. Dunston, Ry. & M., N. P. C. 109; Reg. v. Yates, C. & Mar. 132.

8.

4. It must be either false in fact; or, if true, the defendant must not have known it to be so. 1 Hawk. c. 69, s. 6: 3 Inst. 166: Palmer, 294.-As, for instance, if a man swear that J. N. revoked his will in his presence-if he really had revoked it, but it were unknown to the witness that he had done so, it is perjury. Hetley, 97. And a man may be indicted for perjury, in swearing that he believes a fact to be true, which he must know to be false. Per Lord MansSee 1 Hawk. c. 69,

[ *570 ] field, *in R. v. Pedley, 1 Leach, 327.

s. 7: 3 Inst. 166: 1 Sid. 419, cont.

5. The false oath must be taken deliberately and intentionally, for, if done from inadvertence or mistake, it cannot amount to voluntary and corrupt perjury. 1 Hawk. c. 69, s. 2. Therefore, where perjury is assigned on an answer in equity, or an affidavit, &c., the part on which the perjury is assigned may be explained by another part, or even by a subsequent answer, &c. I Sid. 419: Com. Dig., Just. of Peace, (B.),

102.

Now, all these things must appear upon the face of the indictment, and be proved as laid. In the introductory part of the indictment, circumstances are stated which shew that the oath was taken in a judicial proceeding, before a competent jurisdiction, and was material to the matter then before the court; the oath is then set out; and the perjury is then assigned upon it, that is, some one or more of the affirmative assertions in it are negatived, or the negative assertions contradicted by the opposite affirmative.

If it appear sufficiently from the oath itself, that it was material to the matter then before the court, it is unncessary to aver that fact: (see 2 Stark. N. P. C. 423, n.): but if it do not appear, then the materiality of that part of the oath upon which perjury is assigned must be averred;