CHAPTER THE FIFTY-FOURTH. OF WILFUL OR MALICIOUS DAMAGE TO REAL OR PERSONAL mage to any property, in any case not previously provided for, may be compelled by a justice to pay compensation not exceeding five pounds, 66 Persons com- THE statute 7. and 8. Geo. 4. c. 30. s. 24. enacts "that if any mitting daperson shall willfully or maliciously commit any damage, injury, or spoil to or upon any real or personal property whatsoever, "either of a public or private nature, for which no remedy or "punishment is hereinbefore provided, every such person, being "convicted thereof before a justice of the peace, shall forfeit and pay such sum of money as shall appear to the justice to be a "reasonable compensation for the damage, injury, or spoil so com"mitted, not exceeding the sum of five pounds; which sum of money shall, in the case of private property, be paid to the "party aggrieved, except where such party shall have been exa"amined in proof of the offence; and in such case, or in the "case of property of a public nature, or wherein any public Application of "right is concerned, the money shall be applied in such manner the money awarded. Proviso. any term "as every penalty imposed by a justice of the peace under this BOOK THE FIFTH. OF OFFENCES WHICH MAY AFFECT THE PERSONS OF CHAPTER THE FIRST. OF PERJURY AND SUBORNATION OF PERJURY. PERJURY, by the common law, appears to be a wilful false oath Perjury by the by one who, being lawfully required to depose the truth in any common law. proceeding in a court of justice, swears absolutely in a matter of some consequence to the point in question, whether he be believed or not. (a) Subornation of perjury by the common law is an offence in procuring a man to take a false oath amounting to perjury, who actually takes such oath. But it seems clear that if the person, incited to take such an oath, do not actually take it, the person by whom he was so incited is not guilty of subornation of perjury; yet it is certain that he is liable to be punished, not only by fine, but also by infamous corporal punishment. (b) Inciting a witness to give particular evidence, where the inciter does not know whether it is true or false, is a high misdemeanor ; especially, if the inciter being attorney on one side gets himself employed for that purpose by the other side: at least, if the evidence is given accordingly. The indictment charged that the defendant, an attorney, being retained to defend Wood against a charge of picking Lewis's pocket, deceitfully procured himself to be employed by Lewis, and persuaded Lewis to swear before the grand jury that he did not know who picked his pocket, which he did, and no bill was returned. An objection was made that Lewis's evidence was not stated to have been false; but, upon a case reserved, the Judges thought it unnecessary; as the defend (a) 1 Hawk. P. C. c. 69. s. 1. 3 Inst. 164. Com. Dig. Tit. Just. of Peace, B. 102. 5 Bac. Abr. Perjury. (b) 1 Hawk. P. C. c. 69. s. 10. 5 Bac. Ab. Perjury, and the authorities there cited. Subornation of perjury by the common law. The false oath must be wilful, some degree of and taken with deliberation. A man may be indicted for perjury in swearing that he believes a fact to be true. The oath must be false. The oath must be taken in a judicial proceeding. ant's crime was the same, unless he knew it to be true, and that he should have proved. (c) The false oath must be wilful, and taken with some degree of deliberation; for if upon the whole circumstances of the case it shall appear probable, that it was owing rather to the weakness than perverseness of the party, as where it was occasioned by surprize, or inadvertency, or a mistake of the true' state of the question, it cannot but be hard to make it amount to voluntary and corrupt perjury, which is of all crimes whatsoever the most infamous and detestable. (d) It has been said that no oath will amount to perjury, unless it be sworn absolutely and directly, and, therefore, that he who swears a thing according as he thinks, remembers, or believes, cannot, in respect of such an oath, be found guilty of perjury. (e) But De Grey, Ld. C. J., appears to have laid down a different doctrine. (f) And Lord Mansfield, C. J., is stated to have said, "It is certainly true that a man may be indicted for perjury in "swearing that he believes a fact to be true which he must know "to be false." (g) It is further said that, upon this question being agitated in the Court of Common Pleas, all the Judges were unanimous that belief was to be considered as an absolute terms, and that an indictment might be supported upon such a statement.(/) But it has been holden that perjury cannot be assigned upon an assertion the correctness of which depends upon the construction of a deed. (i) The important requisites in a case of perjury appear to be these; the false oath must be taken in a judicial proceeding, before a competent jurisdiction, and it must be material to the question depending.(k) With respect to the falsity of the oath it should be observed, that it has been considered not to be material whether the fact, which is sworn, be in itself true or false; for, howsoever the thing sworn may happen to prove agreeable to the truth, yet, if it were not known to be so by him who swears to it, his offence is altogether as great as if it had been false, inasmuch as he wilfully swears that he knows a thing to be true which at the same time he knows nothing of, and impudently endeavours to induce those before whom he swears to proceed upon the credit of a deposition which any stranger might take as well as he.(7) The oath must be taken either in a judicial proceeding, or in some other public proceeding of the like nature, wherein the King's honour or interest are concerned; as, before commissioners appointed by the King to inquire of the forfeitures of his tenants, or (c) Rex v. Edwards, East. T. 1764. (d) i Hawk. P. C. c. 69. s. 2. (f) Miller's case, 3 Wils. 427. 2 (g) Pedley's case, 1 Leach 327. (h) Anon. C. P. Mich. T. 1780. 1 Hawk. P. C. c. 69. s. 7. note (a), p. 88. (ed. 1795.) (i) Rex v. Crespigny, cor. Kenyon, C. J. 1 Esp. 280. (k) By Lord Mansfield, C. J., in Rex v. Aylett, 1 T. R. 69. (7) 1 Hawk. P. C. c. 69. s. 6. Rex r. Edwards, cor. Adams, B., Shrewsbury Lent Ass. 1764; and subsequently considered of by the Judges, MS. And see per Lawrence, J., in Rex v. Mawbey and Others, 6 T. R. 619. 1 of defective titles wanting the supply of the King's patents. But it is not material whether the court, in which a false oath is taken, be a court of record or not, or whether it be a court of common law, or a court of equity, or civil law, &c., or whether the oath be taken in the face of the Court, or out of it before persons authorized to examine a matter depending in it; as, before the sheriff on a writ of enquiry, &c.; or whether it be taken in relation to the merits of a cause, or in a collateral matter; as, where one who offers himself to be bail for another, swears that his substance is greater than it is. (m) But neither a false oath in a mere private matter, as in making a bargain, &c., nor the breach of a promissory oath, whether public or private, are punishable as perjury.(n) In a case where perjury was assigned upon an affidavit of an attorney of the Court of King's Bench, made in answer to a charge exhibited against him in a summary way, for having in his possession blank pieces of paper with affidavit stamps, and the signatures of a master extraordinary in chancery and another person at the bottom of the papers, an objection was taken in arrest of judgment that the indictment did not shew that the affidavit of the defendant was made in any legal proceeding. It was urged that the Court had no right to call on the defendant summarily to answer any complaint against him merely because he was an attorney, unless in a case touching the defendant's office as an attorney, in his conduct towards some of the suitors of the court, or for a breach or contempt of some rule or order of the court, or for some matter touching the proceedings or process of the court, none of which were stated; or, if the paper found in the defendant's custody could have been the object of a summary inquiry, (not having been used or attempted so to be, nor having a proper stamp) it could only have been in the Court of Chancery, where the paper could have been used, if at all, and not in the Court of King's Bench, wherefore all the proceedings respecting it were coram non judice, and could not be the subject of an indictment for perjury. But this objection was afterwards abandoned. (o) It has been doubted, whether a false oath taken in Doctors' Commons, for the purpose of obtaining a marriage licence, amounts to perjury.(p) And the same doubt was entertained in a subsequent case, where the defendant was indicted for perjury in an affidavit in Doctors' Commons, in order to obtain a licence to marry one C. Hill, spinster, to which he swore that he knew no lawful impediment, whereas in truth and in fact he knew she was the wife of another man.(q) And it has been lately decided that a (m) 1 Hawk. P. C. c. 69. s. 3. 5 Bac. Abr. Perjury, (A). (n) Id. ibid. (0) Rex v. Crossley, 7 T. R. 317. (p) Alexander's case, O. B. 1767. 1 Leach 63. The point was submitted to the consideration of the twelve Judges, and several times agitated; but the result was not communicated, as the prisoner died in Newgate. (q) Woodman's case, O. B. 1768. 1 Leach 64 note (a). The point appears to have been submitted also in this case to the consideration of the twelve Judges; but their opinion was not publicly communicated. In 3 Chit. Crim. L. 713. a precedent is given of an information by the Attorney-Ge And it must be taken be fore a compe tion. false oath before a surrogate, taken in order to procure a marriage licence, will not support a prosecution for perjury: and further, that if the indictment only charges the taking the false oath without stating that it was for the purpose of procuring a licence, or that a licence was procured thereby, the party cannot be punished thereupon as for a misdemeanor. The indictment stated that the prisoner, being minded to procure a marriage between himself and A. B., went before a surrogate, and was sworn to an affidavit in writing, that the said A. B. had been residing four weeks in the parish of S., whereas she had not, and so he had committed perjury and the indictment had all apt allegations of an indictment for perjury. But a case being reserved upon the question whether on such an affidavit the party could be prosecuted for perjury, and if not, whether upon this indictment any offence was charged, the Judges were unanimous that upon an oath before a surrogate, perjury could not be assigned; and that as this indictment did not charge that the defendant took the oath to procure a licence, or that he did procure one, no punishment could be inflicted; and he was therefore pardoned. (r) It appears, however, from this case, that if the purpose of such an oath is to obtain a licence, and the licence is obtained, and marriage had, the party may be indicted as for a misdemeanor. The nature of the oath at present required to be taken before the surrogate is described in the statute 4 Geo. 4. c. 76. s. 14., and by section 23, of that statute, when a marriage has been effected between parties under age, contrary to the act, by means of a false oath or fraud, certain proceedings are given by which the guilty party may be made to forfeit all property accruing from the marriage. As a suit will be abated by the death of a co-plaintiff, unless the death be suggested according to the statute 8 & 9 Wm. 3. c. 11. s. 6., it has been ruled that if a co-plaintiff die, after issue joined, a trial without such suggestion on the record would be extrajudicial, and that no perjury could be assigned upon any false evidence given at such trial. (s) The oath must be taken before a competent jurisdiction, that is, before some person or persons lawfully authorized to administer tent jurisdic- it. So that a false oath taken in a court of requests, in a matter concerning lands, has been holden not to be indictable, that court having no jurisdiction in such cases. (t) And it seems clear, that no oath whatsoever taken before persons acting merely in a private capacity, or before those who take upon them to administer oaths of a public nature, without legal authority for their so doing, or before those who are legally authorized to administer some kinds of oaths, but not those which happen to be taken before them, or even before those who take upon them to administer justice by virtue of an authority seemingly colourable, but in truth unwarranted and merely void, can ever amount to perjuries in the eye neral for a misdemeanor in procuring "seems most probable that it might.” And 1 Leach 63. is referred to. (r) Rex v. Forster, East. T. 1821, MS. Bayley, J., and Russ. & Ry. 459. (s) Rex v. Cohen, 1 Stark. R. 511. (1) Baston v. Gouch, 3 Salk. 269. |