Illustrations.

1

[(1.) A swears that certain goods are of a certain value.

1A is entirely ignorant upon the subject. A is guilty of perjury whether the goods are of that value or not.

The goods are not of that value, and A knows it. A has committed perjury.

** The goods are of that value, but A believes that they are not. A has committed perjury.

The goods are not of that value, but A believes that they are. A has not committed perjury.

(2.) A proceeding before a local marine board sitting under the Merchant Shipping Act, 1854, and having power to suspend or cancel the certificates of the masters and mates of ships, is a judicial proceeding.

4

(3.) An inquiry before a sheriff as to the amount of damages is a judicial proceeding.

(4.) 5 An inquiry before a justice of the peace as to making a man find sureties for the peace is a judicial proceeding.

6

(5.) A swears that he thinks that certain words are in his handwriting. The jury find that he did not think so. A commits perjury.

(6.) A, a witness under cross-examination, denies an imputation which goes to his credit only. B is improperly permitted to contradict A. B swears falsely. B commits perjury on a material fact.

8

(7.) A falsely swears that he has examined a paper, alleged to be a copy, with an original will, in order to make the copy admissible. The paper is not put in evidence, and it would not have been admissible if it had been tendered. A commits perjury on a material fact.

9 ARTICLE 176.

SUBORNATION OF PERJURY.

10 Subornation of perjury is procuring a person to commit a perjury, which he actually commits in consequence of such procurement.]

1 [R. v. Mawbey, 6 T. R. 637.

2 Gurneis Case, 3 Inst. 166.

3 R. v. Tomlinson, L. R. 1 C. C. R. 49.

41 Hawk. P. C. 430.

5 Ibid.] See also R. v. Walker, 21 U. C. Q. B. 34; R. v. Mason, 29 U. C. Q. B. 431.

6 [R. v. Schlesinger, 10 Q. B. 670.

7 R. v. Gibbon, L. & C. 109. In the later case of R. v. Tyson, L. R. 1 C. C. R. 107, R. v. Gibbon was followed, but the facts are not so strong. See, too, R. v. Mullany, L. & C. 593. Philpott's Case, 2 Den. C. C. 302, 309.]

S. D. Art. 136.

10 [If the perjury is not committed, the crime is incitement; see Article 50. See also 1 Hawk. P. C. 435. c. 27, s. 10. Draft Code, s. 119.]

1 ARTICLE 177.

PUNISHMENT OF PERJURY AND SUBORNATION.

2 Perjury and subornation of perjury are misdemeanors, and every one who commits either is liable to a fine in the discretion of the court and to fourteen years' imprisonment.3

5

4 ARTICLE 178.

FALSE SWEARING.

[Every one commits a misdemeanor who swears falsely before any person authorized to administer an oath upon a matter of public concern, under such circumstances that the false swearing if committed in a judicial proceeding would have amounted to perjury.

Illustrations.

(1.) A takes a false oath before a surrogate in order to obtain a marriage license. A commits a misdemeanor.

7

(2.) A takes a false oath before commissioners appointed by the king to inquire into cases in which a royal grant was required to confirm title to lands. A commits a misdemeanor.

8

(3.) * A swears a false affidavit under the Bills of Sale Act (17 & 18 Vict. c. 36). A commits a misdemeanor.]

ARTICLE 179.

FALSE STATEMENTS-WILFUL OMISSIONS IN AFFIDAVITS, &C.

Every one is guilty of perjury who

(a.) having taken any oath, affirmation, declaration or

1 S. D. Art. 137.

2 R. S. C. c. 154, s. 1.

[The punishment at common law was whipping, imprisonment, fine, and pillory.]

4 S. D. Art. 138. As to forging instruments admissible in evidence and tendering them in proof, &c., see Art. 505.

5 [See Cases in Illustrations. Draft Code, s. 122.

Chapman's Case, 1 Den. C. C. 432.

Hobart, 62. This case is given by Hawkins, 1 P. C. 430, as an instance of perjury in & proceeding not judicial; but this, I think, is a misconception.

8 R. v. Hodgkiss, L. R. 1 C. C. R. 212.]

9R. S. C. c. 151, s. 2.

affidavit in any case in which by any Act or law in force in Canada, or in any Province of Canada, it is required or authorized that facts, matters or things be verified, or otherwise assured or ascertained, by or upon the oath, affirmation, declaration or affidavit of any person, wilfully and corruptly, upon such oath, affirmation, declaration or affidavit, deposes, swears to or makes any false statement as to any such fact, matter or thing; or

(b.) knowingly, wilfully and corruptly, upon oath or affirmation, affirms, declares, or deposes to the truth of any statement for so verifying, assuring or ascertaining any such fact, matter or thing, or purporting so to do, or knowingly, wilfully and corruptly takes, makes, signs or subscribes any such affirmation, declaration or affidavit, as to any such fact, matter or thing,—such statement, affidavit, affirmation or declaration being untrue, in the whole or any part thereof; or,

(c.) knowingly, wilfully and corruptly omits from any such affidavit, affirmation or declaration, sworn or made under the provisions of any law, any matter which, by the provisions of such law, is required to be stated in such affidavit, affirmation or declaration.

ARTICLE 180.

MAKING FALSE AFFIDAVIT OUT OF PROVINCE IN WHICH IT IS USED.

1 Every person who wilfully and corruptly makes any false affidavit, affirmation or declaration, out of the Province in which it is to be used, but within Canada, before any person authorized to take the same, for the purpose of being used in any Province of Canada, is guilty of perjury in like manner as if such false affidavit, affirmation or declaration were made before a competent authority in the Province in which it is used or intended to be used. 1 R. S. C. c. 151, s. 3; 18 & 19 Vict. c. 42, s. 4.

1

ARTICLE 181.

ADMINISTERING OATHS WITHOUT AUTHORITY.

Every justice of the peace or other person who administers, or causes or allows to be administered, or receives or causes, or allows to be received, any oath, affidavit or solemn affirmation, touching any matter or thing whereof such justice or other person has not jurisdiction or cognizance by some law in force at the time being, or authorized or required by any such law, is guilty of a misdemeanor and liable to a fine not exceeding fifty dollars, or to imprisonment for any term not exceeding three months.

'[Maintenance is the act of assisting the plaintiff in any legal proceeding in which the person giving the assistance has no valuable interest, or in which he acts from any improper motive.

Champerty is maintenance in which the motive of the maintainor is an agreement that if the proceeding in which the maintenance takes place succeeds, the subject matter of the suit shall be divided between the plaintiff and the maintainor.

A common barrator is one who habitually moves,

1 R. S. C. c. 141, s. 1; 5 & 6 Wm. 4, c. 62, s. 13.

2 S. D. Art. 141. See Appendix, Note III.

3 [In the earlier editions of this work I included under this head the offence of selling pretended titles. The whole matter is so indefinite, and partakes so much more of the nature of a civil penalty than of a crime, that I have left it out. The law upon the subject will be found in 32 Hen. 8, c. 9. See Jenkins v. Jones, L. R. 9 Q. B. D. 128, on the effect of 8 & 9 Vict. c. 106 upon 32 IIen. 8, c. 9, and Kennedy v. Lyell, L. R. 15 Q. B. D. 491, on the meaning of a "pretended title."

41 Russ. Cr. (5th ed.) 351-60. As to barratry, 362-3. See also 1 Hawk. P. C. 454-466, and Note III. in Appendix. See also 3 Hist. Cr. Law, 234-40. The old Statute of Conspirators, 33 Edw. 1, and many other ancient statutes (3 Edw. 1 c. 18; 13 Edw. 1 c. 49; 1 Edw. 3, st. 2, c. 14: 20 Edw. 3, c. 4; 1 Ric. 2, c. 4; 7 Ric. 2, c. 15; 32 Hen. 8, c. 9; 4 Edw. 3, c. 11) refer to these offences, but do not throw much light on their nature.]

[excites, or maintains suits or quarrels, either at law or otherwise.

Every one who commits maintenance, or champerty, or is a common barrator, is guilty of a misdemeanor.

1

Every one who sues any person in the name of a fictitious plaintiff, or in the name of a real person but without his authority, commits a misdemeanor, and must, upon conviction thereof, be imprisoned for six months.

2 ARTICLE 183.

CONSPIRACY TO DEFEAT JUSTICE-DISSUADING WITNESSES FROM TESTIFYING.

Every one commits a misdemeanor who

(a.) 3 conspires with any other person to accuse any person falsely of any crime, or to do anything to obstruct, prevent, pervert, or defeat the course of justice; or

(b.) in order to obstruct the due course of justice, dissuades, hinders, or prevents any person lawfully bound to appear and give evidence as a witness from so appearing and giving evidence or endeavors to do so; or

5

(c.) obstructs or in any way interferes with or knowingly prevents the execution of any legal process civil or criminal.]

6

Every one who knowingly and wilfully signs any

1 [18 Eliz. c. 5, s. 4 (redrawn and modernized).]

2 S. D. Art. 142.

Every one convicted of an offence against clause (a.) is liable to seven years' imprisonment; R. S. C. c. 173, s. 26; [Wright on Conspiracies, 30; 14 & 15 Vict. c. 100, s. 29; cf. Draft Code, ss. 126, 7, 8.

41 Hawk. P. C. 64; R. v. Lady Lawley, Strange, 901; and see 5th Rep. C. L. C. Art. 57.] See also R. S. C. c. 106, s. 121, as to tampering with witnesses in any prosecution under The Canada Temperance Act.

6 [Cases collected in 1 Russ. Cr. 558-61.]

R. S. C. c. 181, s. 19.