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1814.

WEALTH

υ. CORNISH.

proved by the case cited by the defendant's counsel from 3 Inst. 166, where a man was adjudged guilty of perjury COMMONfor swearing to the value of goods which he never saw or knew, although his valuation was not incorrect. There is corruption in undertaking to swear positively to a thing of which you have little knowledge, and which you may know if you will take the trouble to enquire; and when there is this kind of corruption, the law implies malice. Cornish must have known that it was difficult to distinguish a man's person in a crowd in the night, and he ought to have made some enquiry before he took the oath. If he had acted with reasonable caution, he would have discovered the truth. It is objected that it may be of dangerous consequence, if witnesses are convicted for swearing to what they believe to be true. On the other hand, it will be more dangerous if they are to escape punishment, who rashly and obstinately persist in a false oath, in a matter of which they will not take the pains to inform themselves. It is said by Blackstone, 4 Black. 137, that there is perjury where one swears wilfully, absolutely and falsely. That the oath of Cornish was absolute and false is not denied. It was wilful also, according to the legal import of that word, by which it is only understood that the oath is taken with some degree of deliberation, and "not merely through surprise or inadvertency, CL or a mistake of the true state of the question;" (3 Bac. 814, A.) Now here was great deliberation, or at least room for deliberation, for there was an interval of two days between the first and second oath, and the first was taken two days after the affray in which the defendant was shot. In cases where the oath is clearly false, I know no rule more reasonable, than to leave it to the jury to decide, whether there was any probable ground for mistake. I am therefore of opinion that a new trial should not be granted.

BRACKENRIDGE J. The question resolves itself into this, can one be guilty of perjury who believes what he says to be the truth? Probable cause, or reasonable ground of belief, in a prosecution in a course of justice, will exempt from damages. The want of probable cause or reasonable ground, pari ratione will subject to the conviction of perjury; for the mala mens, malitia, or malice, is an inference of law from

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1814.

COMMON-
WEALTH

V.

CORNISH.

the want of probable cause or reasonable ground. I am not to be at the mercy of the weakness of a man, and the law will protect against the weakness, as well as against the actual wickedness of him, who attacks my reputation by an oath in a court of justice. It is the same thing to me, whether it was his weakness or actual malice and wickedness, that led him to take the oath. It interests the public, that rash and unadvised swearing a crime upon another, should be restrained; and how can this be done, if the only enquiry shall be, whether the weak man really thought that which he

swore was true.

In the present case, it cannot be doubted, but that an action of slander could have been supported on words spoken to the effect of what was sworn, even though believed by him publishing. The being spoken in a course of justice will protect against this. The being sworn in a course of justice, will not protect on the ground of a probable cause There was no probable cause in this case, no reasonable ground. The charge was rashly made, and wantonly persisted in, without throwing himself open to conviction of his mistake, or using due means to inform himself of it, though he would seem to have had abundant opportunity of making enquiry, and informing himself as to the ground of his misconception. The not having done this, shews a carelessness; as to what he swore; and even when in court he persisted in his first belief.

We are between Scylla and Charybdis in this case. On the one hand, there is the risk of discouraging: testimony given for the Commonwealth; on the other hand, there is the risk of individuals from rash and unadvised swearing. There can be no doubt but that an action for a malicious prosecution would lie in this case; but what satisfaction would it be to recover damages against a defendant of no property? It ought to be at a man's risk to undertake to swear positively, under circumstances where he ought to have mistrusted his vision, and could not have been certain, as to what he undertook to say positively that he saw. This was the case here.

New trial refused.

END OF DECEMBER TERM, 1813.

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THE plaintiff obtained a judgment by arbitration on the

1814.

Philadelphia,
Wednesday,
March 30.

To entitle a de

March 1806, he

der the act of 21st

fendant to plead 22d of last month, for about 1100 dollars; and the de- his freehold unfendant by an entry on the docquet suggested his freehold, to obtain a stay of execution under the act of 21st March must have a free1806, sec. 7.

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hold worth the amount of the

judgment, and upon which there is

It is not sufficient

Binney obtained a rule upon the defendant, returnable no incumbrance. this morning, to shew cause why this suggestion or plea that the freehold should not be struck off the record, upon the ground that may be thought equal to the judgthe defendant had not such a freehold as was intended by ment, after paying all incumthe law. The law enacts that the writ of execution shall be brances. staid on the judgment, "if exceeding four hundred dollars, "twelve months, counting from the first day of the term to "which the original process issued is returnable, if the "defendant in the opinion of the Court is possessed of a "freehold estate, worth the amount of such judgment, clear "of all incumbrances."

Hopkins, who shewed cause for the defendant, admitted that his only freehold in the county was a house and lot, for which he had given four thousand dollars on the 25th May 1807, and on which there were two mortgages, one of the 16th July 1807, for one thousand dollars, and another of the 16th July 1811, for three thousand dollars; but he offered to prove by a witness in court, that the property was worth

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1814..

GIRARD

V.

HEYL.

more than six thousand dollars, and that an offer for it to that amount had been refused. The counsel then argued, that security to the plaintiff was the only object of the law; and that according to its spirit, the defendant had a freehold equal to the judgment, clear of all incumbrances, or in other words, after all incumbrances should be cleared or paid off. Such had been its interpretation in other courts; and upon any other construction, an incumbrance of ten pounds would take away the privilege from a freehold of ten thousand.

Binney in reply said, that no argument could make the .act plainer. The defendant claims a privilege, and it is no hardship upon him to be asked to bring his case within the fair and natural import of the law. He must have a freehold clear of all incumbrances, not above, or more than, but clear. Any incumbrance destroys the privilege. If the defendant obtains a stay, what certainty is there that the whole property may not be swept away to-morrow, by an execution upon one of the mortgages. The law intended that the plaintiff should have a security indefeasible by the act of any one.

PER CURIAM. The act is too clear for a doubt. The defendant says he can prove the estate is worth six thousand dollars. How can he prove that if a levari facias should issue, and it should be sold by the sheriff, it would bring half the money? Both the words of the law and its spirit are against the privilege in this case; the words, because the defendant has no freehold clear of incumbrances; the spirit, because it did not intend that the plaintiff's judgment should be exposed to defeat by sale under a prior incumbrance.*

Rule absolutę.

Philadelphia,
Thursday,

March 31.

If the late shcriff has executed a deed, and ac

knowledged it defectively, his suc

cessor cannot un

IN

ADAMS and another against THOMAS.

N this case, the lands of the defendant had been sold by fabez Hyde, late sheriff of Luzerne county, under a der the act of 23d testatum venditioni, issued out of this Court returnable to March 1764, ex- December Term 1813. The purchase money having been. but the late she- paid, the sheriff made a deed for the lands, to Henry Drinriff may acknowledge it again, though out of office.

ecute a new deed;

* The freehold in question was afterwards sold under a fi. fa, in this case, and did not produce the amount of the mortgages and interest.

ker the purchaser; and acknowledged the same on the 29th of October 1813, at the Wilksbarre Court of Common Pleas.

1814.

ADAMS

et al.

V.

Hyde being out of office, the purchaser now petitioned the Court under the act of the 23d of March 1764, to direct THOMAS. the present sheriff of Luzerne county, to execute a sufficient deed.

Drinker on behalf of the petitioner, contended that the acknowledgment was an essential part of a sheriff's deed; and that the former sheriff having acknowledged the deed before the return day of the writ, the whole was a nullity. Glancy's Lessee v. Jones (a). That the petitioner's case, was within the equity, if not within the words, of the act of 1764; that the acknowledgment of a deed, was an act to be done by the sheriff, as sheriff; and that the former sheriff could now do no such act, 1 Dyer 41. 136 b., Moore 364. 186. 431., Cro. Eliz., 512, though he might make return of whatsoever he had done, whilst sheriff. 2 Ld. Ray. 1072.

PER CURIAM. The case of the petitioner is not within the act of 1764. That act provides for the case where a sheriff has made no deed; but the late sheriff has executed a deed to the petitioner, which it is said has not been acknowledged in due form of law. The acknowledgment is no part of the deed; it is only the sanction of the Court to the act of the sheriff. The practice has been for sheriffs, after their term of office has expired, to acknowledge deeds for lands sold by them, and executed whilst they were in office; and the Court is of opinion that such acknowledgments are sufficient.

The Commonwealth against CALLAN.

THIS

Philadelphia,
Thursday,
March 31.

A mother is a
within the

parent,

HIS was a habeas corpus to Lieutenant Callan of the cavalry, to bring up the body of R. L. Caustin a minor act of Congress of of 19 years of age; and the return was, that he held him as 1813, for the en

a soldier in the army of the United States, under an enlistment of the 20th of September 1813.

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20th January

listment of minors; and if the minor has neither father, master nor

consent is neces

The facts were, that the minor at the time of his enlist- guardian, her ment had neither father, master, nor guardian, but a mother; say to his enand he had enlisted without her consent.

(a) 1 Smith's Laws 65,

listment.

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