
    Lamden vs. The State.
    1. The forms of judicial proceedings both in civil and criminal cases are established by the courts of justice, and must from time to time be so modified, changed and applied, as to subserve the ends of justice, and the safety of the citizen,
    
      2. A bill of indictment for perjury, framed upon a false oath taken in proceedings in Chancery, need not set forth at large the bill in Chancery and other proceedings connected therewith. It is only necessary to set forth by description and averment so much of the proceedings as will make manifest the materiality of the oath taken.
    3. 3STo peijury can be assigned on an extra judicial oath; and, therefore, where a Cleric and Master, directed to take an account of the indebtedness of an insolvent estate, summoned at the instance of complainant a creditor, and such creditor swore falsely, that no money had been paid on a note held by him again the estate, it is held, that no perjury was committed.
    4. An oath that certain notes were due and unpaid, and that deponent had received nothing in payment thereof, does not negative the existence and justice of a set-off.
    The grand jury at the September term, 1843, of the Circuit Court for Claiborne county, indicted John Lamden for peijury. The indictment charges, that “one Allen Hurst, as the administrator upon the estate of one Isaac B. Butcher, deceased, on the 18th day of September, 1841, exhibited his bill of complaint in writing, in the Court of Chancery, sitting at Tazewell, ior the Chancery District composed of the counties of Grainger, Claiborne and Campbell, in the State of Tennessee, against John Sharp, Peter Sharp, William Sharp, John Lamden, Elizabeth Butcher and others, creditors of said I. B. Butcher, deceased, directed to the Chancellor for'the Eastern Division, sitting in Equity for the district composed of the counties of Claiborne, Grainger and Campbell, praying, among other things, that an account might be taken of the assets of the estate of said I. B. Butcher, and of the debts due therefrom, and that said assets might be applied to the payment of said debts in an equal and just .proportion, as in and by the said bill of complainant remaining filed of record, in the said Court of Chancery at Tazewell, amongst other things, more fully appears, and after certain pleadings and proceedings had been bad in said Court of Chancery at Tazewell, in order that the - assets of said Isaac B. Butcher might be applied to the payment of the debts due from the estate of said Isaac B. Butcher in an equal and just proportion^ it was ordered, adjudged and decreed by the Honorable Thomas L. Williams, Chancellor presiding, in said Court of Chancery, at Tazewell, that the Clerk and Master of said Chancery Court, at Tazewell, should thereafter take an account in said cause, and state amongst other things, the amount justly and bona fide due from said estate, (meaning the estate 'of said Isaac B. Butcher,) and for which said estate was legally liable; and afterwards, to wit, on the 18th day of October, 1842, at Tazewell, in the 'county of Claiborne, in order that an account in said cause might be taken by the Clerk and Master of said Court, of Chancery, at Tazewell, and that he might state the amount of the debts justly due from the estate of said I. B. Butcher, deceased, and for which said estate was justly liable, L. H. Garrett, Clerk and Master in said Court of Chancery, at Tazewell, in obedience to the order of T. L. Williams, Chancellor in said Court of Chancery, at Tazewell, proceeded, at the office of said Clerk and Master in said court, to take an account in said cause, when and where, according to the course and practice in said court, witnesses were produced, sworn and examined in said cause upon the taking said account; and the jurors aforesaid, on their oaths aforesaid, do further present and say, that it became and was a material question then arid there upon taking said account in said cause by the said Clerk and Master in said court at Tazewell, to be deposed to by said witnesses, whether the amounts of two obligations, which had before that time been executed to one John Lamden by the said Isaac B. Butcher, and by Peter Sharp, John Sharp and William Sharp, under the style and by the name of Peter Sharp & Co., 'and which said obligations are in the words and figures following, to wit, “On or before the 10£h of May next, we will pay John Lam-den two hundred dollars, for value received of him. Witness our hands and seals, May 19th, 18S3.
    I. B. Butcher, [Seal.] Peter Sharp & Co.”
    “On or before the 10th day of May next, we will pay John Lamden, two hundred dollars, for value received of him. Witness our hands and seals, May 19th, 1833.
    I. B. Butcher, [Seal.] Peter Sharp & Co.” were then due and unpaid, and also whether he (meaning the said John Lamden) had received any thing in paymentjof said writings obligatory; and the jurors aforesaid, on their oaths aforesaid, do further present and say, that John Lamden of said county, laborer, then and there, in his own proper person, appeared as a witness upon the taking of said account, in said cause,-by the said L. A. Garrett, Clerk and Master in said Court of Chancery at Tazewell, before the said Clerk and Master, and was then and there duly sworn and took his corporal oath upon the holy gospel of God before the said L. A. Garrett, Clerk and Master in said Court of Chancery at Taze-well, that the evidence he should' give, &c. &c., touching the matters then in question, should be the truth, whole truth, &c. &c, the said Clerk and Master, &c. then there, having lawful and competent authority to administer an oath to said John Lamden, in that behalf, and the said John Lamden having been so sworn, &c., and intending, &c. &c., falsely, corruptly and wilfully swore before • the said Clerk and Master, &c. &c. amongst other things, in substance and to the effect following, to wit, that the amounts of two obligations in writing, executed by the said Isaac B. Butcher, by the style of I. B. Butcher, and by Peter Sharp, John Sharp and William Sharp, by the style of Peter Sharp & Co., and which said obligations were as follows, to wit, &c. &c., were then due and unpaid, and that he the said John Lamden, had not received anything in payment of said obligations.
    Whereas, in truth and fact the amounts of said obligations were not then and there due and unpaid; and, whereas, also he, the said John Lamden, had received something, to wit, the sum of one hundred dollars in part payment of said two obligations, and so the jurors aforesaid say,” &c.
    The defendant pleaded not guilty, and the case was sub--mitted to a jury at the January term, 1844, Judge R. M. Anderson presiding.
    The facts of the case are fully stated in the opinion of the court.-
    The counsel for the defendant requested the Judge to charge the jury'-, that there was no sufficient assignment of perjury in the indictment, and that the indictment was insufficient, because it did not set forth and recite the record of the proceedings in Chancery, therein referred to, and that the evidence was all, therefore, inadmissible. This the court refused to charge, but stated that the indictment was good.
    The defendant was found guilty by the jury, who fixed his term of imprisonment in the penitentiary at three years. The defendant moved the court to grant him a new trial. This motion, as well as a motion in arrest of judgment, having been overruled, the defendant appealed.
    
      Peck and Cocke, for the plaintiff in error.
    
      Attorney General and J. A. McKinney, for the State.
   Reese, J.

delivered the opinion of the court.

In the year 1838, the plaintiff in error sold a tract of land to one I. B. Butcher. In security for the consideration, the said Butcher gave to the plaintiff in error two several bills single of the same date and tenor, each for the sum of two hundred dollars, payable to the said plaintiff in error, in the May of the following year, to each of which, Peter Sharp & Co. affixed their signature, without their seal, as sureties. These instruments were written upon the sanie piece of paper, and delivered to the plaintiff, and by him taken into his possession.

In the course of the following year, 1839, Butcher, who was a “steam doctor,” claimed to have rendered, and did render, to the plaintiff in error himself, and a servant of his, medical services in that line. His claim for these services not having been paid, as he alledged, he brought suit before a Justice of the Peace against the plaintiff in error, to recover their value. On the trial the plaintiff in error alledged that he had paid for them; but this not appearing in proof, the Justice rendered a judgment against the plaintiff in error for the sum of one hundred dollars. It may be remarked, that the whole proceeding was coram non jndice, and merely void; the Justice having no jurisdiction, upon a claim so evidenced, to render a judgment for more than fifty dollars. The plaintiff in error, however, on other grounds, protested at the time against the justice of judgment; yet throwing upon the table, before the Justice, the piece of paper on which were written the two instruments here-inbefore described, he directed the Justice to endorse a credit thereon for one hundred dollars, the amount of the pretended judgment. The Justice did so; and placed the endorsement, locally, upon the blank space between the two instruments. The plaintiff in error, at some subsequent period, separated the two instruments by removing the blank paper between them, in which process the credit endorsed by the direction of the plaintiff in error entirely disappeared. Subsequently I. B. Butcher departed this life, and one Allen Hurst became his administrator, and filed a bill in Chance'ry at Tazewell, to ascertain the extent of indebtedness of the estate, and to marshal the assets in a pro rata payment of the same, and an account was ordered accordingly.

In taking the account before the Clerk and Master, the plaintiff in error although named as a party defendant in the bill presented no vouchers or evidences of claims against the estate, relying, as he said, upon the liability and solvency of Peter Sharp & Co., and, therefore, on motion of the complainant, the Clerk and Master issued a subpcena duces tecum, and the two-bills single were produced, and the Clerk and Master imposed an oath upon the plaintiff in error, and he swore, as the record of the Clerk and Master sets forth, “that the amount of said notes was yet due and unpaid, and that he had not received anything in payment of the said notes, or any part thereof.”

Upon this statement is the perjury charged in the bill of indictment assigned. The bill of indictment is not so framed as to set forth at large the bill in Chancery, and other judicial proceedings connected therewith and consequent thereon, so as in that way to manifest the import and materiality of the oath of the plaintiff in error, which occurred in the course of, and as a part of those proceedings; but to manifest the import and materiality of such oath, it is framed as indictments for perjury have been framed in England, since the act 23 Geo. 2, and in N. Carolina, since the act of 1791, by virtue of the provisions and purview of those acts; namely, by description and averment of so much of the nature and substance of those proceedings as it was supposed would make distinctly manifest the import and the materiality of the oath which was taken. And this is supposed to be erroneous, and is the first error assigned in argument by the counsel of the plaintiff.

It is insisted, that the first mode is the common law mode in force and use in England until the 23 Geo. 2, and in North Carolina until the act of 1791; that those statutes are not in force here, and that, therefore, the original common law form of framing an indictment for perjury, must continue to be the only legal and proper form with us, until the intervention of the legislature shall produce a statutory change. On the other-hand it is said, that forms of judicial proceedings, whether in civil or criminal cases, have at no time, in point" of fact, arisen, and from their objects and nature could scarcely arise in legislative sanction; but that they were enacted by the courts, and must, by the courts from time to timé, be so changed, modified and applied, as to subserve the safety of the citizen and the ends of public justice, in the convenient and intelligible transaction and despatch of public business; that the intention of the legislature in this very instance, to correct a great evil and furnish a salutary change in the forms of judicial proceedings, resulted from no want of power in the courts to have made the change themselves, but because, in their somewhat unreasonable and too tenacious adherence to ancient forms and precedents, they neglected or refused to do so. It is insisted that, at the very foundation of our State government, our courts, in the exercise of a legislative power inherent in the nature of their functions, adopted and introduced the improved forms in indictments for perjury, which arose from the statutes of Geo. 2, and of N. Carolina, and which have been used, sanctioned and enforced ever since, now nearly fifty years; and that if, originally, the power of our courts, to have adopted these forms without the intervention of the legislature, were questionable, still, at this day, we must adhere to the usages and forms established, and cannot be drawn back to forms, inconvenient, if not impracticable and absurd, and now obsolete in England, and never in use and force here; and of this opinion are the court. But the question is the less material in this case, because of our opinion on other points.

When the instruments in question were produced by the prisoner before the Clerk and Master as evidences of claim against the estate of Butcher, in obedience to the subpoena, duces tecum, he had nothing more to do, on his part, if the genuineness of the instruments were admitted. If that were questioned, he could not establish their execution and validity by his oath; that must have been done by the attesting witness, if such there were, and if not, by proof of the hand writing of the makers according to la)fV. In all this, the oath of the payee or claimant could not be taken, or his testimony be heard. But the vouchers being genuine, the laboring ore was thrown into the hands of the other party; what payments had been made? What set-off existed? If any were alledged, it was for the representative of Butcher to show by the production of receipts and by the proof of payment or of set-off. In all this, the oath of the prisoner was out of the question. If the statute of limitations had appeared to bar the claim, and had been insisted on by the other side, as well might the Clerk and Master, at the instance of the prisoner, have enquired of the representative of Butcher, upon his oath, whether he or his intestate had made no promise or acknowledgement that would take the case out of the statute. This summary inquisition, by means of the oath of the other party, breaks down all the well considered and long settled rules of law, and is, in the utmost degree, perilous tothe consciences of our citizens. The oath in this case was extrajudicial. If the Clerk and Master may be supposed, in taking an account under such circumstances, to be clothed with all the power of the Chancellor, when proceeding by bill of discovery, the casus for the exercise of such a jurisdiction did not exist. For the record shows that the circumstances of the trial before the Magistrate, and the medical services of Butcher, such as they were, were known to many persons, and in this very case, proved by many persons.

Again: if the Clerk and Master had possessed the power, under the circumstances, and for the end in view, to have administered the oath to the prisoner, and to have questioned him on the subject, still he did not so frame his interrogatories as to induce an answer false in the legal or ordinary sense of its terms; the prisoner swore only that the notes were unpaid, and that he had received nothing in payment. This does not negative the existence or the justice of the set-off for medical services, or the fact of the credit as entered by the Justice; that endorsement was not a payment, but the evidence merely of payment. It is true, indeed, that a man, careful of conscience and character when thus interrogated, would not place himself within the narrow and painful limits of mere literal truth, still if this be done, it does not constitute a proper case for the assignment of peijurjn

The opinions by us entertained upon these two last points, go to the foundation of this prosecution, and supersede the necessity of looking into the charge of the court, and considering what portion of that, if any, may have been erroneous, and, also, whether the alledged variance between the record of the Clerk and Master, as to the description of the notes or instruments, and the description of them in the indictment, be material and important.

The judgment of the Circuit Court, upon the whole matter, will be reversed, and the prisoner be discharged.  