the schedule may be taken. Making false declaration a misdemeanor. Persons making false declaration deemed guilty of a misde meanor. Construction of the 5 Eliz. c. 9. ments or allegations, or proof of debts, or of the execution of deeds or other matters,' enacts that 'it shall and may be lawful for any justice of the peace, notary public, or other officer now by law authorized to administer an oath, to take and receive the declaration of any person voluntarily making the same before him in the form in the schedule to this Act annexed; and if any declaration so made shall be false or untrue in any material particular, the person wilfully making such false declaration shall be deemed guilty of a misdemeanor.' (u) Sec. 21. In any case where a declaration is substituted for an oath under the authority of this Act, or by virtue of any power or authority hereby given, or is directed and authorized to be made and subscribed under the authority of this Act, or by virtue of any power hereby given, any person who shall wilfully and corruptly make and subscribe any such declaration, knowing the same to be untrue in any material particular, shall be deemed guilty of a misdemeanor.' (v) With respect to the first of the statutes above set forth, namely, the 5 Eliz. c. 9, as it is but little resorted to at the present time, on account of prosecutions upon it being more difficult than at the common law, and as it did not alter the nature of the offence, but merely enlarged the punishment, (w) a brief statement of some of the principal points decided upon its construction will probably be deemed sufficient. In many instances an indictment will lie at common law, when it will not lie upon this statute. Thus where a witness for the King swears falsely, he cannot be indicted on the statute. (x) It has been adjudged that a man cannot be guilty of perjury within this statute, in any case wherein he may not possibly be guilty of subornation of perjury within it; on the ground that it is reasonable to give the whole statute the same construction ; and that it cannot well be intended that the makers of it meant to extend its purview farther as to perjury, which they appear to have considered as the less crime, than to subornation of perjury, which they seem to have esteemed the greater: and, therefore, since the clause concerning subornation of perjury, mentioning only matters depending by writ, bill, plaint, or information, concerning hereditaments, goods, debts, or damages, &c., does not extend to perjury on an indictment or criminal information, the clause concerning perjury, though penned in more general words, has been adjudged to come under the like restriction. (y) And it ishment. The number of statutes, which contain clauses making persons giving false evidence, making false affidavits, &c., either liable to the punishment of perjury or guilty of a misdemeanor, is so large that it is conceived they would occupy more space than the infrequency of the occasions, on which it may be necessary to consult them, warrants devoting to their insertion; all of them, therefore, have not been inserted. C. S. G. (w) Buxton v. Gouch, 3 Salk. 269. (x) Id. ibid. (y) Bac. Ab. tit. Perjury (B). 1 Hawk. P. C. c. 69, s. 19. has also been resolved, that as the clause concerning subornation of perjury relates only to perjury by witnesses, that concerning perjury extends to no other perjury than that of a witness; and, therefore, not to perjury in an answer in chancery; or in swearing the peace against a man; or in a presentiment by a homager in a court baron, or in a wager of law, or in swearing before commissioners of the King's title to lands. (2) And by the opinions of some, a false affidavit against a man, in a court of justice, is not within the statute. (a) But it is observed that if such affidavit be by a third person, and relate to a cause depending in suit, before the Court, and either of the parties in variance be grieved, hindered, or molested, in respect of such cause, by reason of the perjury, it may be strongly argued that it is within the purview of the statute. (b) It seems to be the better opinion that a false oath before the sheriff on a writ of inquiry of damages is within the statute. (c) It has been collected from the clause giving an action to the party grieved, that no false oath is within the statute, which does not give some person a just cause of complaint; and, therefore, that if the thing sworn be true, though it be not known by him that swears it to be so, the oath is not within the statute, because it gives no good ground of complaint to the other party, who would take advantage of another's want of sufficient evidence to make out the justice of the cause. (d) And upon the same ground no false oath can be within the statute, unless the party against whom it was sworn suffered some disadvantage by it: therefore, in every prosecution on the statute, it is necessary to set forth the record wherein the perjury is supposed to have been committed, and to prove at the trial that there is such a record, either by actually producing it, or by an attested copy; and it is necessary not only to set forth in the pleadings the point wherein the false oath was taken, but to show also how it conduced to the proof or disproof of the matter in question. (e) And if an action on the statute be brought by more than one, it is necessary to show how the perjury was prejudicial to each of the plaintiffs. (ƒ) But it seems that a perjury, which tends only to aggravate or extenuate the damages, is as much within the statute as a perjury that goes directly to the point in issue; and that perjury committed in a cause wherein an erroneous judgment is given, is a good ground of a prosecution upon the statute till the judgment be reversed. (g) It has been holden that every indictment or action upon this Indictment on statute must exactly pursue the words of it; and, therefore, if it the 5 Eliz. allege that the defendant deposed such a matter falso et deceptivè, or fulso et corruptè, or falso et voluntariè, without saying volun c. 9. Any Court, judge, justice, of perjury in and commit the party, unless he enter into recognizance to appear and take his trial, and bind persons to give evidence ; and give cer tificate of pro secution being directed, which shall be sufficient evidence of the same. tariè et corruptè, it is not good, though it conclude that sic voluntarium et corruptum commisit perjurium contra formam statuti, &c. Also it is said to be necessary expressly to show that the defendant was sworn; and that it is not sufficient to say that tacto per se sacro evangelio deposuit. But there is no need to show whether the party took the false oath through the subornation of another, or of his own act, though the words of the statute are, 'If persons by subornation, &c., or their own act, &c., shall commit wilful perjury;' for there being no medium between the branches of this distinction, they seem to be put in ex abundanti, and to express no more than the law would have implied, and, therefore, operate nothing. (h) It seems that if perjury be committed that is within this statute, but the indictment concludes not contra formam statuti, yet it is a good indictment at common law, but not to bring the offender within the corporal punishment of the statute. (i) By 14 & 15 Vict. c. 100, sec. 19 'it shall and may be lawful for the judges or judge of any of the superior Courts of common law or equity, or for any of Her Majesty's justices or commissioners of assize, nisi prius, oyer and terminer, or gaol delivery, or for any justices of the peace, recorder, or deputy recorder, chairman, or other judge holding any general or quarter sessions of the peace, or for any commissioner of bankruptcy or insolvency, or for any judge or deputy judge of any county court, or any court of record, or for any justices of the peace in special or petty sessions, or for any sheriff or his lawful deputy before whom any writ of inquiry or writ of trial from any of the superior courts shall be executed, in case it shall appear to him or them that any person has been guilty of wilful and corrupt perjury in any evidence given, or in any affidavit, deposition, examination, answer, or other proceeding made or taken before him or them, to direct such person to be prosecuted for such perjury, in case there shall appear to him or them a reasonable cause for such prosecution, and to commit such person so directed to be prosecuted until the next session of oyer and terminer or gaol delivery for the county or other district within which such perjury was committed, unless such person shall enter into a recognizance, with one or more sufficient surety or sureties, conditioned for the appearance of such person at such next session of oyer and terminer or gaol delivery, and that he will then surrender and take his trial, and not depart the Court without leave, and to require any person he or they may think fit to enter into a recognizance, conditioned to prosecute or give evidence against such person so directed to be prosecuted as aforesaid, and to give to the party so bound to prosecute a certificate of the same being directed, which certificate shall be given without any fee or charge, and shall be deemed sufficient proof of such prosecution having been directed as aforesaid; and upon the production thereof the costs of such prosecution shall and are hereby required to be allowed by the Court before which any person shall be prosecuted or tried in pursuance of such direction as aforesaid, unless such last-mentioned Court shall specially otherwise direct; and when (h) 1 Hawk. P. C. c. 69, ss. 17, 18. Bac. Abr. tit. Perjury (B), and the authorities there cited, (i) 2 Hale, 191, 192. See the cases cited, vol. 1, p. 841; and see vol. 1, p. 35. allowed by any such Court in Ireland such sum as shall be so allowed shall be ordered by the said Court to be paid to the prosecutor by the treasurer of the county in which such offence shall be alleged to have been committed, and the same shall be presented for, raised, and levied in the same manner as the expenses of prosecutions for felonies are now presented for, raised, and levied in Ireland: provided always, 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.' s. 1, (k) to Extending the 23 Geo. 2, c. 11, other offences, and simplifying indict ments for Sec. 20. In every indictment for perjury, or for unlawfully, wilfully, falsely, fraudulently, deceitfully, maliciously, or corruptly taking, making, signing, or subscribing any oath, affirmation, declaration, affidavit, deposition, bill, answer, notice, certificate, or other writing, it shall be sufficient to set forth the substance of the offence charged upon the defendant, and by what Court or before whom the oath, affirmation, declaration, affidavit, deposition, bill, other like answer, notice, certificate, or other writing, was taken, made, signed, or subscribed, without setting forth the bill, answer, information, indictment, declaration, or any part of any proceeding, either in law or in equity, and without setting forth the commission or authority of the Court or person before whom such offence was committed.' An indictment for perjury alleged to have been committed on a trial before the Court of Quarter Sessions, averred in substance that a certain indictment for misdemeanor, &c., came on to be tried in due form of law, and was tried by a jury duly sworn, and the prisoner, as a witness on the trial, was duly sworn, and contained the other usual averments and conclusion. It did not state the nature of the misdemeanor, or aver that the Court of Quarter Sessions had authority to try the same or administer an oath on the trial. Held, that the substance of the offence charged against the defendant was sufficiently stated under this enactment, and that the indictment was good on motion in arrest of judgment. () Sec. 21. 'In every indictment for subornation of perjury, or for corrupt bargaining or contracting with any person to commit wilful and corrupt perjury, or for inciting, causing, or procuring any person unlawfully, wilfully, falsely, fraudulently, deceitfully, maliciously, or corruptly to take, make, sign, or subscribe any oath, affirmation, declaration, affidavit, deposition, bill, answer, notice, certificate, or other writing, it shall be sufficient, wherever such perjury or other offence aforesaid shall have been actually com (4) This statute is repealed by 30 & 31 Vict. c. 59. It was lamented by a learned judge, that the party prosecuting for perjury did not more frequently avail himself of the 23 Geo. 2, c. 11, made for the purpose of obviating difficulties in drawing the indictments. In the case in which this remark was made, the commission at the admiralty session had been unnecessarily set forth in the indictment; and it was admitted that where a prosecutor undertakes to set out in the indictment more of the proceedings than he need under this statute, he must set them forth correctly; but it was holden that the commission at the offences. Extending the 23 Geo. 2, c. 11, s. 2, as dictments for subornation of perjury and offences. to form of in other like On trials for perjury and subornation a certificate of indictment on mitted, to allege the offence of the person who actually committed Sec. 22. A certificate containing the substance and effect only (omitting the formal part) of the indictment and trial for any felony or misdemeanor, purporting to be signed by the clerk of the trial of the the Court or other officer having the custody of the records of the Court where such indictment was tried, or by the deputy of such clerk or other officer (for which certificate a fee of six shillings and eightpence and no more shall be demanded or taken), shall upon cient evidence the trial of any indictment for perjury or subornation of perjury be sufficient evidence of the trial of such indictment for felony or misdemeanor, without proof of the signature or official character of the person appearing to have signed the same.' which the perjury was committed suffi of such trial. Several per- It has been holden, on motion in arrest of judgment, that several persons cannot be joined in one indictment for perjury, the crime being in its nature several. (m) But this does not apply to subornation of perjury. (n) With respect to the venue in an indictment for perjury, it may be briefly observed that the parish or place, unless used as giving some specific local description, will not be material, and that it will be sufficient to show the offence committed anywhere within the county. The statement of venue in the margin is now sufficient. (t) In a case where perjury had been committed in the booth-hall within the limits of the city of Gloucester, which is a county of itself, on the trial of a cause before a jury of the county at large, it was holden that the indictment might be found and tried by juries of the county at large. (u) And where perjury had been committed on the trial of an indictment at the Worcester quarter sessions, which were held in the Guildhall at Worcester, which is situate in the county of the city of Worcester, it was held that the indictment, which was found by the grand jury of the county of the city of Worcester, was good, as it was preferred in the county where the oath was actually taken. (x) A sufficient venue (m) Rex v. Philips, 2 Str. 921. (n) Reg. v. Rhodes, 2 Ld. Raym. 886. In Reg. v. Goodfellow, C. & M. 569, one defendant was indicted for perjury, and the other for suborning him to commit the perjury, and no objection taken to both being included in the same indictment; and it should seem none could have been successfully taken on that ground, as it is like the case of principal and accessory before the fact, included in the same indictment. C. S. G. (t) See the 14 & s. 23, vol. 1, p. 24. 15 Viet. c. 100, 2 Leach, 800; Rex v. Woodward, R. & M. C. C. R. 323, vol. 2, p. 924. (u) Rex v. Gough, Dougl. 791. In this case a charter had made Gloucester a county of itself, reserving only the trial of matters arising in the county at large within Gloucester as before. The judges intimated their opinions that the indictment might be in either county, but they were clear it might be in the county at large. (x) Rex v. Jones, 6 C. & P. 137, Tindal, C. J. |