
    Commonwealth v. Litton.
    1849. December Term.
    
    On a trial of a warrant for debt, before a justice, founded on an order given by the defendant, he makes oath before the justice that he did not sign his name to the order. Upon an indictment for perjury in taking this oath. Held :
    1. That perjury may be committed in taking such oath.
    2. In such case, the Court should not quash the indictment; but should put the defendant to his demurrer.
    This was an information founded on a presentment of the grand jury, in the Circuit court of Jackson county, at its March term 1849, against David Litton. The first count of the information set out with great particularity, that Matthew B. Armstrong, the administrator of William H. Armstrong, obtained from a justice of Jackson county, a warrant in debt against Litton. That this warrant went into the hands of a constable, and was duly served. That on the return of the warrant, Litton appeared in person, and the case came on to be tried. That Litton denied that he ever gave or signed the order then and there produced on behalf of the plaintiff, which purported to be an order for 1 dollar 50 cents, drawn by the said Litton on William M. Cally, in favour of William H. Armstrong deceased, of whom the plaintiff was the administrator; and which order was the foundation of the suit, and was produced in evidence on the trial. And the said Litton, in support of his said denial that he had ever given or signed the said order, tendered his own oath to the justice who was trying the case. That it was a material question in the cause whether said Litton did give or sign the said order, and in order to obtain the benefit of his denial in said suit, the said Litton was then and there by his own voluntary act and consent, by the said justice duly sworn according to law, and took his corporal oath before the said justice. And that the said Litton being so sworn as aforesaid, with intent to defraud the estate of the plaintiff’s intestate, out of the debt evidenced by the order aforesaid, then and there upon his oath aforesaid, falsely, corruptly, knowingly and wilfully swore that he had not given or signed said order; whereas in truth and in fact, the said Litton had given and signed the said order.
    At a special term of the Court held in January 1849, the defendant appeared and moved the Court to quash the information; and the Court, with the defendant’s consent, adjourned to this Court the following questions, viz:
    1st. Has a justice of the peace any authority to swear a defendant in a cause before him, under the circumstances disclosed by the information in this case ? And if he has such authority, to swear him under such circumstances, is the party guilty of perjury in corruptly taking a false oath ? or is it but false swearing, and a misdemeanor at common law ?
    2d. What judgment ought to be given upon the motion to quash each of the counts in the information filed in this cause ?
   By the Court.

A majority of the Court is of opinion that the offence set forth in the first count of the information, amounts to perjury under the statute. And as to the motion to quash the information, the Judges are unanimously of opinion, that the motion should not be sustained: But the party should be put to his demurrer, if he be so advised. Which is ordered to be certified.  