shall recover damages against the party who did procure the said judgment so reversed to be first given." In the construction of this statute it has been laid down, that no one can be guilty of perjury within its meaning, who might not be guilty of subornation of perjury under its provisions; because it punishes the latter offence with greater severity than the former, and, therefore, could not intend to enlarge the purview as to what it treats as the smaller offence, beyond its scope with respect to the latter. And, therefore, as under this act, subornation can only be committed in "matters depending in suit by writ, action, bill, plaint, or information, in any wise concerning lands, tenements, or hereditaments, or goods, chattels, debts, damages, &c. the commission of perjury itself comes under the same restriction, 5 Co. 99. a. And, on this ground, it is easy to account for the decision in Price's case, Cro. Jac. 120. where it is said generally, that no indictment will lie against a witness for the crown for any thing he may depose, because the king cannot prosecute his own witness; for that was the case of an information on the statute for some thing sworn on an indictment, and the position in its broadest sense, can never for a moment be supported, Hawk. b. 1. c. 69. s. 19. And as the clause in the statute respecting perjury committed by persons in their examinations ad perpetuam rei memoriam, or in their depositions in some of the courts there mentioned, is taken to relate only to the oath of a witness; and, therefore, no one can be indicted under this statute for perjury committed in an answer in chancery, in exhibiting articles of peace, in a presentment made as a homager of a court baron, or in waging law, or making oath before commissioners appointed to investigate title, 3 Inst. 166. 2 Rol. Abr. 77. Hawk. b. 1. c. 69. s. 20. It seems also questionable whether any affidavit in a court of justice, or deposition before the sheriff on a wiit of enquiry, can be made the subject of prosecution under this statute, Hawk. b. 1. c. 69. s. 21. There is also this distinction between perjury at common law and upon this act, that the former may be brought though the perjury is at once detected and does not succeed in injuring any individual, but no indictment can be sustained for the latter, unless some one was actually aggrieved by the offence, 3 Inst. 166, 167. It is, therefore, much easier and more certain to proceed at common law, and proceedings on this act have become very unusual.

The Indictment on the statute, 5 Eliz. c. 9. must exactly pursue Indictment for the language of the act. And, therefore, if it allege that the de- perjury, on 5 Eliz. c. 9. fendant swore to the matter in question falsely and deceitfully, or falsely and corruptly, or falsely and wilfully, without saying wilfully and corruptly, it will be invalid, though it conclude that "

Evidence.

The punishment.

the defendant did commit wilful and corrupt perjury contrary to the form, &c." Cro. Eliz. 147. 1 Leach, 71. And it is necessary to state expressly that he was sworn, and the averment that “tacto per se sacro evangelio deposuit," will not supply its place, Cro. Eliz. 105. But there is no occasion to show whether he took the false oath by his own act or by the subornation of another, though the words of the statute are, "If persons by subornation, &c. or by their own act," &c. shall commit perjury; for as there is no possible motive for the crime which does not range itself under one or the other of these provisions, they are merely superfluous and have no influence on the technicality of the proceedings, 3 Bulst. 147. In indictments on this statute the precedents show how the affidavit, &c. was used, 7 T. R. 319. Skin. 403. Holt, 534. Like other indictments upon statutes, the indictment should conclude contra formam, though if this be omitted it will be good as at common law, and the defendant may be punished with the penalties which would be inflicted if the act had not been referred to, but cannot be sentenced to the additional punishment prescribed in the statute, 2 Hale, 191, 192. Cro. C. C. 8th Ed. 40.

Evidence. In support of an indictment on the statute, the evidence should show that the affidavit, &c. was used conformably to the indictment, 7 T. R. 319.

The Punishment is prescribed in the statute as recited above. To this the 2 Geo. II. c. 25. adds the option of transportation for a term not exceeding seven years, or imprisonment for not more than three at the discretion of the judges. And in the case of perjury at elections, the 18 Geo. II. c. 18. unites both penalties on the statute of Elizabeth and 2 Geo. II.; so that in Price's case, 6 East, 327. the court vacated their former judgment and sentenced the defendants to forfeit 201. each, be imprisoned six months, their oath not to be received, and after the expiration of their confinement to be transported for six years. Costs.-The prosecutor unless he is also a witness, and his name appears as such on the back of the bill, cannot claim costs as a party grieved if the indictment is at common law, but only when it is framed on the statute, 1 Esp. R. 126.

Offence, &c.

III-PERJURIES MADE FELONY.

Offence, &c.-It is enacted by 31 Geo. II. c. 10. s. 24. That whosoever shall willingly and knowingly take a false oath, or procure any person to take a false oath to obtain the probate of any

will or wills, or to obtain letters of administration in order to receive the payment of any wages, pay, or other allowances of money, or prize money due or that were supposed to be due, to any officer, seaman, or other person entitled or supposed to be entitled to wages, pay, or other allowances of money or prize money for service due on board of any ship or vessel of his majesty, &c. or the executor, administrator, wife, relation, or creditor of any such officer or seaman, or other person who has really served or was supposed to have served on board of auy ship or vessel of his majesty, &c. shall be deemed guilty of felony without benefit of clergy. And by 28 Geo. II. c. 13. s. 14. for the relief of insolvent debtors, any prisoner perjuring himself intending to take the benefit of that act is made equally criminal. In the proof of an offence under the first of these statutes, it must be shown that the prisoner took the oath by positive evidence, and mere circumstantial testimony will not suffice, 1 Leach, 327.

IV. SUBORNATION OF PERJURY.

Subornation of Perjury, at common law, is the procuring ano- The offence. ther to commit legal perjury, who, in consequence of the persuasion, takes the oath, to which he has been incited, Hawk. b. 1. c. 69. s. 10. By 5 Eliz. c. 9. the operation of which as to perjury itself we have already considered, it is enacted that whoever shall unlawfully and corruptly procure any witness or witnesses by letters, rewards, promises, or by any other sinister and unlawful labour or means whatsoever, to commit any wilful and corrupt perjury, in any matter or cause whatsoever depending in suit and variance, by any writ, action, bill, complaint or information, in any wise concerning any lands, tenements or hereditaments, goods, chattels, debts or damages in any of the king's courts, &c. (as enumerated ante, 314.) or shall unlawfully and corruptly procure or suborn any witness or witnesses who shall be sworn to testify in perpetuam rei memoriam shall forfeit 40l. and if he has not that sum or property to its amount, he shall be imprisoned one year and stand in the pillory one hour in the town next adjoining the place where the perjury was committed. To render the offence of subornation of perjury · complete, either at common law or on the statute, the false oath must be actually taken and no abortive attempt to solicit will bring the offender within its penalties, S Mod. 122. 1 Leach, 455. in notes. But the criminal solicitation to commit perjury, though un

Indictment.

The evidence.

Punishment.

successful, is a misdemeanour at common law, punishable not only by fine and imprisonment but by corporal and infamous punishment, 2 East Rep. 17. Hawk. b. 1. c. 69. s. 10. 6 East, 464.

Indictment. In the indictment for this offence, it does not seem to be necessary to set forth the means used by the defendant to effect his design, but it is sufficient to state that he "by sinister and unlawful labours and means" procured the commission of the perjury, 2 Ld. Raym. 886. 2 Leach, 796. And although it must appear on the face of the proceedings that the intention of the defendant was consummated, the word "procured" or "persuaded" will sufficiently convey this idea, 2 Ld. Raym. 889. Though the older precedents generally state a promise of money, the modern ones commonly state merely an endeavour to suborn, 2 Leach, 796.

The Evidence. In support of an indictment for subornation, the record of the witness's conviction for perjury is no evidence against the suborners but the offence of the perjured witness, must be again regularly proved, 1 Leach, 455.

Punishment. As prescribed in the statute. By the 2 Geo. II. c. 25. transportation for seven years, or imprisonment for three, or for any shorter term in either case, may be inflicted on a party convicted of this offenee. And it has been said that subornation of perjury should be visited with a heavier punishment than the perjury itself, for plus peccat author quam actor, 5 Co. Rep. 99. S Inst. 167.

For perjury in

held to bail in

INDICTMENTS FOR PERJURY IN CIVIL PRO-
CEEDINGS BEFORE TRIAL.

London. That S. B. late of the parish of Saint Mary le Bow, an affidavit to in the ward of Cheap, in London aforesaid, yeoman, wickedly and C. P. sworn maliciously devising and intending unlawfully and unjustly to agbefore deputy. filazer in Lon- grieve and oppress one P. K. and also to subject him without any don, in falsely just cause to divers costs and charges, and also to cause and pronegativing tender in Bank cure the sum of forty-one pounds six shillings and six pence, to be indorsed upon a process of the court of our said lord the king of the bench at Westminster, by virtue whereof the said P. K. might be arrested to answer in the same court, at the suit of W. T. R.

notes. (b)

(b) This was the indictment against Samuel Bradford, A. D. 1804. on which he was convicted,

see notes as to the offence, process, indictment, evidence, and punishment, ante 302 to 314.

B. and M. T. with an intent that the said P. K. should be compelled to find bail for the said sum of pounds; according to the form of the statute in such case made and provided, (c) or in default thereof should suffer imprisonment, on, &c. at the parish aforesaid, in the ward aforesaid, in London aforesaid,(d) came in his proper person before F. G. gentleman, then being deputy of T. H. gentleman, then filazer of the said court of our said lord the king of the bench of and for the county of Surrey, and then and there in due form of law was sworn and did take his corporal oath upon the Holy Gospel of God, before the said F. G. (he the said F. G. then and there having a competent authority to administer the said oath to the said S. B.) and that the said S. B. being so sworn as aforesaid, 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, falsely, maliciously, wickedly, wilfully and corruptly did say, depose, swear and make affidavit in writing in substance and to the effect following, (e) (that is to say) that the said P. K. at the time of making the said affidavit was justly and truly indebted to the said W. T. R. B., and M. T. in the sum of pounds for goods sold and delivered by the said W. T. R. B. and M. T. to the said P. K. and at his request and that no offer had been made to pay the said sum of pounds or any part thereof in any note or notes of the governor and company of the Bank of England, expressed to be payable on demand; as by the said affidavit affiled in the said court of our said lord the king of the bench at Westminster aforesaid, in the said county of Middlesex, (amongst other things) more fully appears, (f) whereas in truth and in fact an offer had been made to the said S. B. as clerk to the said W. T. R. B. and M. B. and on their account before the deposing and making of the said affidavit of the said S. B., to wit, on the said, &c. aforesaid, to wit, at, &c. aforesaid, to pay a part of the said sum of pounds, to wit, the sum of thirty-nine pounds in notes of the governor and company of the Bank of England, expressed to be payable on demand, and whereas in truth and in fact an offer had been made to the said W. T., R. B. and M. T. before the deposing, swearing and making the said affidavit of the said S.

(c) 12 Geo. I. c. 29. s. 2.

(d) As to local description, 2 Leach, 800. and Holt, 534. ante 307, 308. In most precedents the real parish is here stated, see precedents post.

(e) This mode of introducing the matter sworn, or the words "in

manner following is proper," see ante 309. or it may be stated, that the defendant made affidavit in writing that, &c. as in 4 Wentw 249, 231.

(f) This allegation is unnecessary, ante 311.