ingredients necessary to constitute perjury," said the judge, is that the tribunal or body before whom the false swearing is alleged to have been committed must have legal authority and power to inquire into the cause or matter investigated."

It does not matter at all whether the party takes the oath voluntarily or under compulsion. But it matters a great deal that the oath should be one required by law. In an Ohio case it appeared that no affidavit of the truth of an answer in chancery was required unless the bill called for such an answer. A bill being filed against one Silver he swore to an answer an answer too containing more poetry than truth. Luckily for him, the bill had not called for an answer under oath, and his affidavit not being required by law he escaped. Silver v. State, 17 Ohio, 365. Oaths like this one and the one taken by Captain Travers are called "voluntary" or "extra judicial" oaths and if false are not the subject of an indictment for perjury. So it is no perjury where, though an oath is required, an unauthorized person takes upon himself to administer it.

It is an extra judicial oath also where the tribunal administering it had no jurisdiction over the inquiry in which it was made. See Pankey v. People, ante, p 92.

"COURSE OF JUDICIAL PROCEEDING.”

STATE v. KEENAN.

[8 Rich. (L.) 456.]

Samuel Kilpatrick had been convicted of an assault and battery on Stephen Keenan. Brought up for sentence Samuel asked permission to be allowed to show how much provocation he had suffered in the matter, and the judge permitted him to examine Keenan. Keenan being put in the witness-box swore to several lies.

Keenan being afterwards prosecuted for perjury objected on the ground that the matters he swore to were not in the course of the judicial proceeding. But his argument did not prevail and he had to go to jail. "It is necessary," said Harper, J., "that the falsehood alleged should be material to an inquiry in the course of a judicial proceeding, though not relating strictly to the principal issue. Certainly the inquiry into the defendant's guilt, as indicated by the circumstances of mitigation or aggravation, was properly an inquiry in the course of a judicial proceeding.'

The principle of this case is that a "proceeding in the course of justice" is not confined to the main branch of judicial proceeding or case in court- -as for instance the trial - but includes all in

cidental or subsidiary proceedings. Thus swearing to an affidavit to commence a proceeding, or to obtain a continuance, or to remove the case to another court, or for a new trial,- have all been held to be within this phrase.

PERJURY-STATEMENT MUST BE MATERIAL.

STATE v. HATHAWAY.

[2 N. & Mc. 118; 10 Am. Dec. 580.]

From the small acorn the sturdy oak doth grow,
And from one quarrel many lawsuits flow.

Shackelford and Furious had a dispute about the ownership of a cow, and Furious had Shackelford indicted for stealing it. Shackelford was tried, and acquitted. Lawsuit No. 1. Shackelford turned round and brought an action for malicious prosecution against Furious. On the trial Hathaway swore that Shackelford had bought the cow from a man named Carter. "Where did you live at the time?" "Within a hundred yards of Carter's," answered Hathaway. This was lawsuit No. 2. Hathaway lied about his residence; he did not live within a hundred miles of Carter. So he was indicted for perjury. This was lawsuit No. 3.

Hathaway, however, did not go to jail, for the court held that his place of residence not being at all material to the issue, he could not be guilty of perjury in testifying falsely concerning it. "There is no offense," said Nott, J., "the general character of which

is better understood than that of perjury, and no point better settled, perhaps, than that the oath must relate to some fact material to the issue. When I say it must relate to some fact material to the issue I do not mean that the particular fact sworn to must be immediately material to the issue, but it must have such a direct and immediate connection with a material fact as to give weight to the testimony to that point. As where it became material to identify a flock of sheep, and a witness was asked how he knew the sheep in question to belong to a particular individual, he said because they were in his mark. Now, although they were not in his mark, and although the mark was immaterial, yet, as that was the medium through which the witness arrived at his knowledge of the important question, it had a direct tendency to strengthen his testimony, and was, therefore, material. So in the present case, if the defendant's situation had given him a better opportunity of becoming acquainted with the material point in the case, testimony to that fact might have been considered material. Thus, if the question had been whether Carter had made a good crop that year, or whether his overseer had done his duty, his testimony to those points might have been strengthened by the fact of having lived near him; because it furnished him with the means of knowing with more certainty the truth of those facts. But it is not so with the case now under consideration. The material fact was, whether Carter actually sold the cow to Shackelford. If the defendant lived a hundred miles off and was present at the sale, he was a competent witness to prove it. If he lived within fifty