therefore in a state to render it more probable that he should have lost his way. It was material for the coroner to ascertain, not alone the actual cause of death, as murder, felo de se, or otherwise, but also all the circumstances attending it, and therefore it was a necessary part of his duty to ascertain the way in which the deceased spent the evening before his death. (c) An indictment for perjury alleged that the prisoner falsely Evidence of swore at a petty sessions that D. Rees was the father of her ille- mother on an gitimate child, and that her master, who was the uncle of D. Rees, application in bastardy. had promised to raise her wages if she would swear the child to a man other than the said D. Rees, and if she would do so he would permit her to lie in at his house. Martin, B., expressed a strong opinion that this evidence as to the promises made to her by her master was not sufficiently material to the issue before the justices so as to amount to the crime of perjury; but he left the case to the jury. (d) money to the The prisoner was indicted for perjury alleged to have been Materiality of committed by him on the hearing of an application of M. payment of Humphreys, the mother of a bastard child, for an order in bas- mother of a tardy to be made upon the prisoner. Upon the hearing M. Hum- bastard. phreys swore that on the day after the birth of the child the prisoner paid her 17. 78. 6d., and that he paid her a weekly sum for several weeks after; in answer thereto the prisoner swore that he never paid M. Humphreys any money at all upon any account whatsoever, and on this statement perjury was assigned; it was objected that this assignment of perjury was upon a matter immaterial on the hearing; but, upon a case reserved, it was held that it was clearly material; for it was necessary to prove at the hearing the payment of the money; and further, the payment of the money for the maintenance of the child was corroborative evidence of the paternity. (e) not to have Brennan being charged before justices of the peace with a rob- Evidence bery in a railway carriage, cross-examined the prosecutor after he which ought had given his evidence in support of the charge, as to whether he been admitted had been in company with himself and the prisoner at Manchester held to be imon the previous day, and then called the prisoner, who swore that material. the prosecutor had accosted him, whilst in company with Brennan, and proposed that he should assist him to break into his uncle's house; and it was held that this evidence was in a matter immaterial to the inquiry before the justices. (f) Justices have no right to inquire into the truth of a charge of libel preferred before them, or to hear any other justification. If publication is proved, they are bound to commit. Where, therefore, an indictment was preferred for perjury alleged to have been committed in the course of the cross-examination of a witness for the defendant on a charge of libel before magistrates, the object of which was to prove the truth of the libel, such cross-examination If a witness to a matter on not being upon matter material to the issue, the Court directed an acquittal. (g) The prisoner was indicted for falsely swearing on the hearing of an application in bastardy, that he had connection with the mother of the child. The mother in support of the application had made a deposition before the magistrates, and she was then cross-examined as to whether she had not had connection with the prisoner in the September previous to the birth of the child, which was on the 29th of March, and she denied it. The prisoner was called for the alleged father, and swore that he had had connection with her as imputed by the question put to her. It was objected that the evidence given by the prisoner was not material to the issue raised on the application for the affiliation order, as the question put to the mother as to her having had connection with the prisoner merely went to affect her credit, and her answer to it ought to have been regarded as conclusive, and the evidence given by the prisoner was inadmissible. But, on a case reserved, it was held that the prisoner was liable to be convicted. 'It is now clearly established that a cross-examination going to a witness's credit is material, and that perjury may be assigned upon it.' (h) Here, therefore, the mother might have been indicted if she had sworn falsely on cross-examination upon this matter. 'Although it did not refer to the main issue, which was the paternity of the child, it had a bearing upon what was indirectly in issue; namely, how far the complainant was deserving of credit.' () Then, as the question only affected her credit, as soon as she had answered it, all should have been bound by her answer. This is an established rule of our law. Notwithstanding that, the magistrates admitted the evidence of the prisoner, which legally was inadmissible. Then, although not legally admissible, yet, being admitted, it had a reference to what was indirectly in issuethe credibility of the complainant. The evidence having been admitted, although wrongly, Reg. v. Phillpotts (j) is an authority directly in point that perjury may be assigned upon it. Although the evidence was open to objection, yet it does not lie in the witness's mouth to say that it was not a question on which he was bound to speak the truth. (k) (g) R. v. Townsend, 10 Cox, C. C. (h) Per Crompton, J. (k) Reg. v. Gibbon, L. & C. 109, by tinction was not denied by any judge. The cases where in an action for seduction such evidence has been held admissible, were distinguished on the ground that such evidence affected the damages. But although Alderson, B., in Verry v. Watkins, 7 C. & P. 308, left such evidence to the jury in mitigation of damages, he first left the question to them whether the defendant was the father of the child, and my recollection of the case (in which I was counsel for the defendant) is that the evidence was given chiefly with a view to that question. And in Grinnell v. Wells, Gloucester Spr. and Sum. Ass. 1843, the mother on the first trial swore to connection with the defendant on one occasion only; and on the second trial before Williams, J., evidence of an alibi was given, and also evidence that the mother had had connection with others at such a time that one of them might on an answer denying a promise absothe statue of lutely void by frauds. Upon an indictment for perjury in an answer to a bill filed Perjury canagainst the defendant in chancery, stating that the defendant not be assigned promised to pay Martin 1,000l. as a marriage portion, when he was about to marry the defendant's niece: the defendant, by his answer, insisted that as there was no promise in writing, he was entitled to the benefit of the Statute of Frauds, but as to the fact, denied that he had ever made any such promise, on which denial perjury was assigned. Lord Kenyon, C. J., said, that he thought this was not such a material fact as would support the indictment. This promise was absolutely void, and, supposing it in fact to have taken place and acknowledged by the defendant, could not be enforced either at law or in equity; that Court had no power to decree a performance of it. It might be a false swearing, but did not amount to what the law denominated perjury. (1) the sale of land. So where upon an indictment for perjury, alleged to have been Perjury cannot committed in an answer to a bill filed in chancery, it appeared be assigned that the bill was filed against the defendant and Robinson, in to a parol order to compel the specific performance of a contract for the pur- contract for chase of a freehold estate, and it was not stated in the bill that the contract was in writing, but it was alleged that the defendants had frequently since the contract was entered into, admitted that the plaintiffs were interested in the purchase; and the defendants in their answer pleaded that the alleged agreement, not being in writing, was within the fourth section of the Statute of Frauds, and could not be enforced, and also denied the agreement as set forth in the bill, and denied that they ever admitted that the plaintiffs were interested in the purchase as stated: and upon these denials perjury was assigned. It was admitted that the agreement was not in writing, and that there was not any memorandum or declaration of trust respecting it. It was objected that the alleged perjury was not material or relevant to the matter in issue in chancery; the agreement not being in writing, the defendant relied on the Statute of Frauds as a good ground of defence. The denial therefore of an agreement which the Court had no power to enforce was immaterial and irrelevant to the investigation of the several matters in the bill. The counsel for the prosecution cited Bartlett v. Pickersgill, (m) where a party was convicted of perjury for the denial of a parol agreement for the purchase of an estate, which parol agreement a court of equity had refused to enforce. Abbot, C. J., 'It does not appear from the short statement of the case which has been cited, and which is not very distinctly reported, whether the Statute of Frauds was there pleaded and relied on. But in the present case the defendants have in their answer pleaded the statute, and insisted that this agreement not being in writing, and relating to the sale of land, is within the fourth section of that statute, and cannot be enforced. As a judge of a court of common law, it is competent for me to form my opinion upon the construction of have been the father of the child; and the mother. C. S. G. (7) Rex v. Benesech, Peake, Add. C. (m) 4 Burr. 2255. 4 East, 577, in notis. But where a set aside a written con tract on the ground of fraud, a party be guilty of perjury in swearing falsely as to terms of the contract not contained in writing. this statute, although I cannot be presumed to know how a court of equity might deal with it. The statute, for the wisest reasons, declares that agreements of this description shall not be enforced unless they are reduced into writing. These defendants, therefore, having insisted upon the statute in their answer, the question is, whether under such circumstances the denial of an agreement, which by the statute is not binding upon the parties, is material; I am of opinion that it was utterly immaterial. It is necessary that the matter sworn to and said to be false should be material and relevant to the matter in issue: the matter here sworn is in my judgment immaterial and irrelevant, and the defendant must be acquitted.' (n) But where an indictment stated that a bill was filed in bill is filed to chancery against the defendant, stating an agreement to purchase certain wheat, to be paid for by draft at three months, which agreement was not reduced into writing, and that afterwards a bought note was delivered to the defendant, which note did not contain fully the terms of the agreement; that the defendant brought an action and recovered a verdict; and that he was enabled to obtain such verdict by reason of his fraudulently concealing the true terms of the agreement, and the bill prayed that one of the terms of the contract might be declared to be that the purchase money should be paid by a bill of exchange, payable three months after date; and the defendant by his answer denied the parol agreement stated in the bill, and the bill was dismissed, and the denial by the defendant was the subject of the indictment for perjury. It was contended that the indictment could not be sustained. The only legitimate evidence of the contract was the bought and sold notes. The contract by parol was void by the Statute of Frauds, and a false answer to a bill for the discovery of such a contract would not subject a person to the indictment for perjury; and Rex v. Dunston (o) was relied upon. Coleridge, J., In that case the bill in chancery was to enforce the performance of a parol contract, which could not be enforced by reason of the Statute of Frauds: and the case of Rex v. Benesech (p) proceeded on the same ground. Though it is true that a party cannot vary the terms of a written contract, by parol evidence, he may show by such evidence that he was induced to sign the written contract inadvertently and by fraud. In this case the object of setting up the parol terms of the contract is for the purpose of avoiding the contract on the ground of fraud.' 'I think that the principle, that parol evidence is inadmissible to contradict or vary the terms of a written contract, does not apply where the object of that evidence, as in this case, is to impeach the transaction on the ground of fraud. I think that the assignment of perjury on the denial in the answer of the parol terms, which the bill prayed to have established, is material and relevant; and I think therefore that the objection cannot be sustained.' (q) Perjury on the trial of an indictment reversed upon error. Perjury may be committed on the trial of an indictment, which is afterwards held bad upon a writ of error. An indictment charged the defendant with having committed perjury on the trial () Rex v. Dunston, R. & M. N. P. R. 109. (0) Supra, (p) Supra, note (7). of a previous indictment for perjury, upon which a party had been convicted and sentenced, but the judgment reversed on a writ of error on the ground that the assignment of perjury was insufficient; (7) and it was objected that the evidence of the defendant never could have been material, as the former indictment was held bad upon a writ of error; but the objection was overruled, on the ground that, whether a witness had committed wilful and corrupt perjury or not, could not depend on the validity in point of form of the indictment as to which he gave evidence. (s) But it must be observed that any false oath is punishable as perjury which tends to mislead a court in any of their proceedings relating to a matter judicially before them, though it in no way affect the principal judgment which is to be given in the cause; (t) as where a person who offers himself to be bail for another wilfully swears that he is a subsidy man and assessed at four pounds in the subsidy book, when he is not a subsidy man at all. (u) So also perjury may be committed in evidence given to the judge in order that he may decide whether a document is admissible. (v) An indictment for perjury alleged that the defendant, as executrix of her husband, was plaintiff in a cause in the county court, and that she falsely swore that she had never been tried at the Central Criminal Court for any offence, and had never been in custody at the Thames police station; it was proved that she had been in custody at the station, and had been tried at the Central Criminal Court, and acquitted by the direction of the judge; the cause in the county court was an action for goods sold by the testator, and was tried by the judge without a jury; and the verdict was for the plaintiff; and the evidence in question was given by the plaintiff during her cross-examination; it was objected that the evidence given by the defendant was not material. It could not be material on the question whether the testator in his lifetime sold the goods for which the action was brought; and as the trial in the county court was before a judge, and not before a jury, it did not weigh as to the result of that trial whether she had been tried or not; and as giving a true answer that she had been acquitted by the direction of the judge would have equally cleared her character, it could not have been material that she denied. having been taken into custody and tried on that charge. Lord Campbell, C. J., 'I think that there is evidence of materiality,' and (the counsel for the prisoner having addressed the jury) he left that question to the jury, and directed them to consider whether her evidence on the two points in question might not influence the (r) See Reg. v. Burraston, post, p. 60. (s) Reg. v. Meek, 9 C. & P. 513, Williams, J. Mullett v. Hunt, 1 Cr. & M. 752, was cited in support of the objection. See also Davis v. Lovell, 4 M. & W. 678. See 1 Hawk. P. C. c. 69, s. 4. cited, post, p. 33. If judgment be arrested in a civil action for a defect in the declaration, it has never been said that that circumstance would prevent a witness, who had been guilty of false swearing at the previous trial, from being indicted for (t) 1 Hawk. P. C. c. 69, s. 3. R. v. (u) Royson's case, Cro. Car. 146. |