of swearing witnesses, but merely allowed the witnesses to be sworn before a commissioner duly authorized, which meant, authorized by some other means.

GASELEE, J. By the statute 29 Charles II., the courts are empowered to appoint commissioners for taking affidavits; and if this order had empowered a commissioner for taking affidavits to administer this oath, I would have reserved this point, because, whether the Court of King's Bench has any power to authorize their commissioners to take any thing but affidavits, is a question I should have left them to decide. However, on this order, that question does not arise for the order only allows the witnesses to be sworn before a commissioner duly authorized; now as Mr. Dudley was never authorized to administer an oath for a viva voce examination, I am of opinion that the defendant must be acquitted.

Verdict, not guilty.

So where a submission to arbitrators has not been made as required by statute, a false oath taken before them is not perjury.2

Assessor.

§ 124. Where an assessor was bound by law to make his assessment between the first days of August and January in each year, an oath administered by him after the date can not sustain a change of perjury,

§ 125. Commissioners of Bankruptcy. — In R. v. Errington, it was held that perjury could not be committed, in evidence given before commissioners of bankruptcy when there was no good petitioning creditor's debt to support it. It appeared in evidence that Ambroise Prichard, a builder at Leamington, being insolvent applied to the defendant who was an attorney residing in the same place, for his advice. He disclosed the state of his affairs to the defendant, and informed him that he was insolvent, that he was indebted to his brother James in the sum of £30 or £40; and that he had leasehold property which was mortgaged, but not to its full value. The defendant suggested to him the granting a mortgage to his brother James on this property for £200; that he should become a bankrupt, and that this would furnish the means of working the commission.

The deeds were prepared by the defendant and the stamps purchased, by his direction, of a person of the name of Rousham, in the early part of the month of September. The deeds were executed on or about the 4th of that month, but they were antedated to the 3d and 4th of July. This was necessary to effect the fraud because the fiat was to be issued, and was in fact issued, in the month of October. It appeared further, upon the cross-examination of the bankrupt that the debt due the petitioning creditor, Bartlam, was much less than £100. It further appeared that there were two other creditors, to each of which he owed more than £100; therefore under the eighth section of the statute," the Lord Chancellor might, on application, have directed the substitution of a good petitioning creditor's debt, for Bartlam's; but this had not been done.

The counsel for the defendant contended that the defendant was entitled to an acquittal upon the first count, inasmuch as the averment that Bartlam was a creditor for £100 was not only not proved but disproved. Upon the second

1 ch. 5.

2 People v. Townshend, 5 How. Pr. 315 (1851).

3 State v. Cannon, 79 Mo. 343 (1883); State

v. Phippen, 62 Iowa, 54 (1883).

42 Moody, 287 (1841).

56 Geo. IV., ch. 16.

count they made several objections: first, upon the evidence that this disproof of the debt of the petitioning creditor rendered all the proceedings null; next, upon the defect of averments, — that it was not averred that there was any petitioning creditor's debt; that it was not averred that any act of bankruptcy had been committed; that it was not averred to be material that the date of the execution of the deeds should have been truly stated by the defendant; and that, inasmuch as the whole transaction with James Prichard was concocted in fraud, the deeds would not have been more operative if dated the 4th of July than as they were dated the 4th of September. And lastly, that there was not a substantive averment that any such deeds were in existence. The jury found the defendant guilty, and the learned judge reserved all the points for the consideration of the judges. The following cases were referred to in the course of the argument: Rex v. Punshon, Rex v. Rapael,2 Rex v. Jones,3 Rex v. Walton.

This case was argued in Michaelmas term, 1841, before all the judges, except BOSANQUET, J., ALDERSON, B., and PATTESON, J.

M. D. Hill, for the prisoner. Upon the first objection the prisoner is entitled to an acquittal. The fact was proved that there was no good petitioning creditor's debt. The commission was therefore bad, and the commissioner had no authority to administer the oath. It is true that, by 6 George IV.,5 this commission might have been established by an order of the Lord Chancellor substituting a good petitioning creditor; but no such order has been made, and the commission must be deemed void as to the adjudication, and all acts subsequent to it.

LORD ABINGER. You say the adjudication was all wrong, therefore all subsequent proceedings are bad. The power to substitute a good petitioning creditor's debt shows that the Legislature intended it void without such an order.

Hill then cited Muskett v. Drummond, when he was stopped by Lord DENMAN, C. J., and the conviction was held bad.

§ 126. Grand Jury Without Jurisdiction.

So where a grand jury had

no power to inquire whether an officer had been guilty of taking illegal fees, a false oath taken in the cause of such inquiry was not perjury."

§ 127. Court must have Jurisdiction — Extra-Judicial Trial by Reason of death of Party. — In R. v. Cohen, a co-plaintiff had died after issue joined and her death had not been suggested. The trial went on and C. swore falsely to a material allegation. It was held that the trial being extra-judicial, C. could not be guilty of perjury.

§ 128. Perjury-Authority to Administer Oath.- Where an order of court authorizes clerks to administer oaths to residents of their respective counties, a conviction for perjury can not be sustained where the affidavit was made before the clerk of a county other than the one in which the accused resided. A false oath made before the clerk of the Circuit Court by a witness,

WATSON, B. The question of materiality is for me, and I am of opinion that the evidence was not material. Its being calculated to influence the magistrates would not be sufficient. It would be merely bad stance, inducing a probability of bad conduct in another. embezzlement it would have been material evidence.

conduct in one inOn the charge for

Not guilty.

In R. v. Murray,1 the prisoner, Thomas Murray, was a witness in behalf of Michael Brennan, who was charged before the justices at Rochdale Petty Sessions with having violently garroted and robbed one Richard Wainwright in a railway carriage at Walsden, on the 11th February last.

After the prosecutor had given his evidence in support of the charge, Brennan proceeded to cross-examine him as to whether he had not been in company with himself and Murray in Manchester on the previous day, and he called the prisoner, Murray, who swore that Wainwright had accosted him while in company with Brennan at a beer-shop, on the evening of the 10th of February, and after telling him that he was in distressed circumstances, said he had a job for him, and proposed that he should assist him (Wainwright) to break into his uncle's house at Todmerton, where they would find £200 to £300, easily accessible to them. Brennan was found guilty and convicted at the assizes of the above charge and Murray was now indicted for perjury.

John Cross, for the prosecution, insisted that the evidence of the prisoner Murray became material at the inquiry before the justices, though on a collateral fact, inasmuch as it most seriously affected the testimony of the prosecutor Wainwright. It might not relate to the actual charge, but it tended very materially to throw discredit upon the credibility of Wainwright, upon whose evi dence the case mainly rested. He cited Quéen v. Lavey and Reg. v. Phillpots. The learned judge doubted whether a charge of perjury could be founded upon any false statements which were not relevant to the case in which those statements were made, or that would not have been received in evidence if true. In this case the prisoner's statement appeared to be totally irrelevant, and consequently not material in order to support the present charge of perjury.

His Lordship, having consulted Mr. Justice BYLES, said that his learned brother concurred with him in the view he had taken, that the offense did not amount in law to "perjury;" that the false swearing was in a matter immaterial to the inquiry before the justices, and what the prisoner had said had nothing to do with the assault and robbery. No doubt, it was as clear a case of moral perjury as any man could possibly commit.

The prisoner was then discharged.

In R. v. Holden," the prisoner was indicted for perjury committed by him at the hearing of a summons before the justices at petty sessions, taken out by him against the prosecutor for using language calculated to incite him to commit a breach of the peace.

Hawthorne, was for the prosecution.

The prisoner was not defended.

The prisoner, in the month of December last, took out a summons against the prosecutor before the justices at petty sessions at Colne, in the county of Lancaster, for using language calculated to incite him to commit a breach of the peace.

11 F. & F. 8 (1858).

2 12 Cox, 166 (1872).

From the evidence, it appeared that on the 24th of December, 1871, the prisoner, who lived at Colne, and who was a saddler by trade, was removing his goods from his shop, and had hired a horse and cart for that purpose; as he was standing on the top of the cart, arranging the goods, the horse moved slightly, which so enraged him that he jumped off the cart and kicked the horse and struck it about the head. The prosecutor, whose shop was just opposite, was standing at his door, and seeing the prisoner act thus, he shouted out to him, "That is nice conduct for a religious man!" "If there was a society for the prevention of cruelty to animals, I would summon you." Whereupon the prisoner replied: "If you don't go into your own house, I will do the same to you." The prosecutor then retorted in these words: "Thou can't; thou art a squinting lying devil." Next day the prisoner laid an information against the prosecutor for using language calculated to incite him to commit a breach of the peace; the justices heard the case and eventually dismissed the charge against the prosecutor. During the case, several witnesses were called, who proved that they saw the prisoner kick and strike the horse, but the prisoner in cross-examination distinctly swore he had not done anything of the kind; the magistrates thereupon committed the prisoner to the assizes, for having committed willful and corrupt perjury, inasmuch as he had distinctly sworn he had never kicked or struck the horse, whereas several witnesses had conclusively proved that he had.

After the case for the prosecution had been opened,

MELLOR, J., said he doubted whether perjury could be assigned on the statement made by the prisoner, that he never kicked or struck the horse, as he did not think the words were material to the issue.

Hawthorne, said that as it went to the credit of the witness it was material. MELLOR, J., said that he thought the statement by the prisoner was only collateral to the issue; he would, however, consult Mr. Justice LUSH. This he did, and on his return into court he said: "My brother LUSH and I have considered this case; and we are of opinion that there can be no assignment of perjury; the words used were merely collateral to the issue then before the court. I may also say that we entertain no doubt about it."

Not Guilty.

In R. v. Tate,1 the prisoner was indicted for willful perjury, committed on the hearing of a charge against one Smith for an assault upon his wife, and the assignment of perjury was on a statement by the prisoner, — as a witness for the husband, Smith - that he had seen Smith's wife under such circumstances as to lead to the impression that she was committing adultery, which he had told Smith just before the assault.

Grantham, for the prosecution.

Hall, for the prisoner.

Hall submitted for the prisoner that the assignment of perjury was bad, as being immaterial. It was not material to the charge of assault, as it did not affect the fact of an assault.

COCKBURN, C. J. The statement that the prisoner had seen the wife of Smith committing adultery, though told to Smith, would not be legally material on the charge of assault. It could not affect the fact of the assault, nor the legal liability for it, for it could afford no legal justification. At the utmost it could only suggest a provocation, which might afford some mitigation of punishment;

1 12 Cox, 7 (1871).

WATSON, B. The question of materiality is for me, and I am of opinion that the evidence was not material. Its being calculated to influence the magistrates would not be sufficient. It would be merely bad conduct in one instance, inducing a probability of bad conduct in another. On the charge for embezzlement it would have been material evidence.

Not guilty.

In R. v. Murray,1 the prisoner, Thomas Murray, was a witness in behalf of Michael Brennan, who was charged before the justices at Rochdale Petty Sessions with having violently garroted and robbed one Richard Wainwright in a railway carriage at Walsden, on the 11th February last.

After the prosecutor had given his evidence in support of the charge, Brennan proceeded to cross-examine him as to whether he had not been in company with himself and Murray in Manchester on the previous day, and he called the prisoner, Murray, who swore that Wainwright had accosted him while in company with Brennan at a beer-shop, on the evening of the 10th of February, and after telling him that he was in distressed circumstances, said he had a job for him, and proposed that he should assist him (Wainwright) to break into his uncle's house at Todmerton, where they would find £200 to £300, easily accessible to them. Brennan was found guilty and convicted at the assizes of the above charge and Murray was now indicted for perjury.

John Cross, for the prosecution, insisted that the evidence of the prisoner Murray became material at the inquiry before the justices, though on a collateral fact, inasmuch as it most seriously affected the testimony of the prosecutor Wainwright. It might not relate to the actual charge, but it tended very materially to throw discredit upon the credibility of Wainwright, upon whose evi dence the case mainly rested. He cited Queen v. Lavey and Reg. v. Phillpots. The learned judge doubted whether a charge of perjury could be founded upon any false statements which were not relevant to the case in which those statements were made, or that would not have been received in evidence if true. In this case the prisoner's statement appeared to be totally irrelevant, and consequently not material in order to support the present charge of perjury.

His Lordship, having consulted Mr. Justice BYLES, said that his learned brother concurred with him in the view he had taken, that the offense did not amount in law to "perjury;" that the false swearing was in a matter immaterial to the inquiry before the justices, and what the prisoner had said had nothing to do with the assault and robbery. No doubt, it was as clear a case of moral perjury as any man could possibly commit.

The prisoner was then discharged.

In R. v. Holden,' the prisoner was indicted for perjury committed by him at the hearing of a summons before the justices at petty sessions, taken out by him against the prosecutor for using language calculated to incite him to commit a breach of the peace.

Hawthorne, was for the prosecution.

The prisoner was not defended.

The prisoner, in the month of December last, took out a summons against the prosecutor before the justices at petty sessions at Colne, in the county of Lancaster, for using language calculated to incite him to commit a breach of the peace.

11 F. & F. 8 (1858).

2 12 Cox, 166 (1872).