The false oath amounts to perjury if it has any tendency to prove or disprove the matter in issue, although but circumstantially (n) (1).

PART

IV.

If a fact be alleged which is material, with reference to Variance. the knowledge of the defendant, it must be proved, and a variance from it will be fatal (o).

It is a general rule, that the testimony of a single wit- Falsity. ness is insufficient to warrant a conviction on a charge of perjury. This is an arbitrary and peremptory rule, found ed upon the general apprehension that it would be unsafe to convict in a case where there is merely the oath of one man to be weighed against that of another (p).

Nevertheless it very frequently happens, in particular cases, that the testimony of a single witness preponderates against the united testimony of many.

Although the testimony of more than one witness be necessary, yet it does not appear to have been held in any case that more than one witness is required in direct falsification of the defendant's oath; it seems to be suf

(n) R. v. Griepe, 12 Mod. 142. As if he wilfully mis-state the colour of a man's coat, or speak to the credit of another witness. And see R. v. Muscot, 10 Mod. 195.

(0) R. v. Hucks, 1 Starkie's C. 521. There the indictment alleged that at the time of effecting a policy of insurance, purporting to have been underwritten by A., B., and others, on the 13th, &c. the defendant well knew a particular fact; on the production of the policy, it purported to have been underwritten by A. B. on the 15th, &c.

(p) Per Parker, C. J. R. v. Muscot, 10 Mod. 195. 2 Haw. c. 46, s. 10. 4 Bl. Comm. 150. But it is sufficient to prove the taking of the oath by means of one witness. Ibid.

(1) [Perjury may be committed in answering a question that has no relation to the issue, if asked with a design to impair the credit of the witness as to those parts of the case which are material and important to the issue-particularly if the witness be cautioned as to his answer. The State v. Strat, 1 Murphey, 124. To constitute perjury, it is not necessary that the particular fact sworn to should be immediately material to the issue; but it must have such a direct and immediate connexion with a material fact, as to give weight to the testimony on that point. The State v. Hathaway, 2 Nott & M'Cord, 118. But where a particular fact was material in the case, and the witness swore to the fact, and said he was present when it took place and, on being asked where he lived at the time, answered that it was near the party-and it was proved that he did not live in the State at the time; it was held that this was not swearing to such a material fact as would constitute perjury, though false. ibid. See Commonwealth v. Knight, 12 Mass. Rep. 274. The State v. Hayward, 1 Nott & M'Cord, 547. The State v. Dodd, 2 Murphey, 226. as to the manner of alleging in the indictment that the false swearing was in a point material to the issue.]

PART
IV.

ficient if one or more other witnesses prove circumstances which tend to the proof of perjury; although it would, consistently with the general rule, be insuffi* 1145 cient * for the same witness who gave direct evidence of the perjury, to prove those circumstances, for then the whole would still rest upon his sole testimony (1).

Corrupt intent.

Subornation.

If any one distinct assignment of perjury be proved, the defendant ought to be convicted (g).

Evidence is essential, not merely to show that the de fendant swore falsely in fact, but also, as far as circumstances tend to such proof, to show that he did so corruptly and wilfully against his better knowledge. For it has been justly and humanely said, that a Jury ought not to convict where it is probable that the fact was owing rather to the weakness than the perverseness of the party; as where it was occasioned by surprize or inadvertency, or by a mistake of the true state of the question (r) (2).

On an indictment of subornation of perjury, it is said to have been held in Reilly's case, that the record of the conviction of Macdaniel, the person alleged to have been suborned, was not in itself sufficient evidence against the defendant to prove that Macdaniel had in fact committed perjury (s).

(q) R. v. Rhodes, 2 Ld. Raym. 886, 7. 2 Bl. Rep. 790.

(r) 1 Haw. c. 69. R. v. Melling, 5 Mod. 349. 10 Mod. 195. (s) 1 Leach, 454. Russel, 1796. Macdaniel had been convicted of feloniously taking a false oath to obtain administration to the effects of a seaman, and the defendant was indicted for feloniously procuring Macdaniel to take the oath; the record of Macdaniel's conviction was produced and read; but it is stated that the Recorder obliged the counsel for the prosecution to go through the whole case to prove the guilt of Macdaniel. But although it would clearly be competent to the prisoner in such a case to controvert the guilt of the person suborned, notwithstanding the record, qu. whether the record be not prima facie evidence of the fact. If the prisoner, instead of being indicted as a principal in procuring, &c. had been indicted as an accessory before the fact, in procuring, &c. the record would clearly have been good prima facie evidence of the guilt of the principal. Supra, tit. Accessory.

(1) [On an indictment for perjury, two witnesses are not necessary to disprove the fact sworn to by the defendant; but where there is but one witness, some other evidence must be adduced in addition to his testimony. The State v. Hayward, 1 Nott & M'Cord, 547.]

(2) [It is perjury if one swears wilfully, absolutely and falsely to a matter which he believes, if he has no probable cause for believing: An oath is wilful, when taken with deliberation, and not through surprise or inadvertency, or a mistake of the true state of the question. Commonwealth v. Cornish, 6 Binney, 249.]

The defendant, although perjury be assigned on his *answer, affidavit, or deposition in writing, may prove that an explanation was afterwards given, qualifying or limiting the first answer.

PART

IV.

* 1146

Where perjury was assigned on the answer of the de- Defence. fendant, in which she swore that she had received no money, in her defence she proved a second answer, in which she stated that she had received no money before such a day, the Court, on a trial at bar, held, that the second answer explained the first, and that perjury could not be assigned upon the first (t).

It is no objection to the competency of a witness that he has sworn to the same fact which he is called to prove (u); and if several be indicted for perjury as to the same fact, each is a competent witness for the rest previous to his conviction (x).

It was formerly held, that a person prejudiced by the perjury was not a competent witness to prove it (y); the rule, it has been seen, is now exploded (z).

It is said to have been held, upon a trial for perjury, alleged to have been committed on the trial of an ejectment, that what a witness then swore who is since dead, is admissible in evidence (a); this however seems to be utterly inconsistent with the principles now established (b).

PEW, see tit. Prescription.

*POLICY OF INSURANCE.

* 1147

THE proofs relate to, 1st, the effecting of the policy (c); Particulars of 2ndly, the interest in the ship or goods (d); 3rdly, the in- proof. ception of the risk, compliance with warranties, &c. (e); 4thly, the legality of the voyage, &c. (f): 5thly, the loss, adjustment, &c. (g): 6thly, the recovery of premiums (h);

(t) R. v. Carr, on a trial at bar. Sid. 418. 2 Keb. 576. (u) R. v. Pepys, Peake's C. 138.

(x) Bath v. Montague, cited Fortesc. 247. 2 Hale, 280. R. v. Bray, Sel. N. P. 1046. Supra, 762, 3.

(a) Taylor v. Brown, T. Ray. 170, by two Justices against the opinion of Kelyng, C. J.

(b) Supra, Part II. sec. cl.

(c) Infra, 1147.

(e) 1160.

(g) 1164

(d) 1149.

(f) 1163.

(h) 1173.

of.

PART

IV.

7thly, of matters in defence of the action, fraud (i), breach of warranty (k): lastly, the competency of witnesses (1).

1st. The Policy.-The policy must be produced, and Policy, proof proved, either by evidence of the defendant's signature, or that of his agent; and in the latter case the authority of the agent must also be proved (m), either by the direct evidence of the agent who is a competent witness for the purpose, or by proof of his hand-writing, and evidence that he is the general agent of the defendant for those purposes, or that he has been specially authorized in the particular instance. If a written authority has been given, it should be produced and proved (n). Proof of authority may also consist in showing that the defendant has, in other instances, recognized the authority of the agent to subscribe policies for him (0), by payment of losses due upon * 1148*such policies, or that he has admitted the making of the policy in the particular instance, as by paying money into Court generally. Proof of subscription by an authorized agent will satisfy an allegation of signature by the defendant (p).

Where a material alteration has been made in a policy by consent of some of the underwriters, the plaintiff cannot recover against an underwriter who was ignorant of the alteration when it was made, although he afterwards assented to it (q).

(m) Supra, 55. This proof, although essential if required, is in practice seldom called for.

-(n) Supra, 55, note (e). Neale v. Erving, 1 Esp. C. 61.

(0) Supra, 59. The authority to effect a policy may be presumed; as where a foreigner, after purchasing goods from B. at Bristol, directed his agent in London to effect an insurance, and B. not knowing that he had done so, effected an insurance by instructions from his clerk, and it was held, that the Jury did right in presuming that the clerk had authority. Barlow v. Leckie, 4 Moore, 8; Grant v. Hill, 4 Taunt. 380; Bell v. Jutting, 1 Moore, 159.

(p) Nicholson v. Croft, 2 Burr. 1188.

(q) Campbell v. Christie, 2 Starkie's C. 64. See the statute, 35 Geo. III. c. 63, s. 13. A mere extension of the time of sailing does not render a new stamp necessary. (See Kensington v. Inglis, 8 East, 273. Hubbard v. Jackson, 4 Taunt. 169. Ridsdale v. Shedden, 4 Camp. 107.) So a mistake may be rectified without a fresh stamp. (Robinson v. Touray, 1 M. & S. 217. Robinson v. Tobin, 1 Starkie's C. 336.) But if the subject-matter of insurance be altered, a new stamp becomes requisite; as where an insurance on ship and goods is altered into an insurance on ship and outfit. (Hill v. Patten, 8 East, 373. French v. Patton, 9 East, 351. 1 Camp. 72.) otherwise, where the description only is altered, the

PART

IV.

Although, as has been seen, the technical terms of a policy may be interpreted according to their mercantile sense, yet the mere opinion of witnesses who have not had actual experience of the usage to that effect, is not admis- Construction of the policy. sible. Thus, where the terms were "at and from L. to A. with liberty to cruize, six weeks," it was held that wit- * 1149 nesses who had never known a case so circumstanced could not be admitted to state their opinion that the clause warranted a cruising of six weeks, taken at intervals (r).

2dly. The plaintiff's interest in the subject matter insured (s).

The same means of proving a title to a ship which ex- Interest. isted previously to the passing of the Registry Acts still exist; the principal effect of those laws is to render further proof necessary in cases where the party relies on a title by transfer (t).

The actual possession of a ship by the party in whom Ship. the interest is alleged to be, and acts of ownership by him, are in this, as in other cases, presumptive evidence of title (u). Where the captain proved that he was appointed and employed by Robertson and Walker (in whom the interest was alleged to be), the proof was held to be sufficient, although it appeared upon cross-examination that the ownership was derived to those persons under a bill of sale, executed by the witness as the attorney of a former

subject-matter remaining the same. (Sawtell v. Loudon, 5 Taunt. 359. 1 Marsh. 99.) Where the insurance was altered by striking out the words" on ship," and inserting the words "on goods," as interest may appear, the assured having really no interest in the ship. Where a policy was executed in the printed form, without any specific subject of insurance being inserted in writing, and the subject-matter was afterwards added in writing, and subscribed by some of the underwriters only, it was held that the assured could not recover on the altered contract against the underwriters who had not signed the altered policy. Langhorn v. Cologan, 4 Taunt. 330. See Park on Insur. 7th edit. 46. Forshaw v. Chabert, 3 B. & B. 158.

(r) Syers v. Bridge, Doug. 527. Supra, 456; and tit. Parol Evidence, 1034.

(s) See the stat. 19 Geo. II. c. 37, s. 1, which makes insurances on any ships belonging to his Majesty, or any of his subjects, or any goods laden or to be laden on board such ships, interest or no interest, or without further proof of interest than the policy, or by way of gaming or wagering, or without benefit of salvage to the assurer, void. The statute does not apply to foreign ships. Thellusson v. Fletcher, Doug. 315. Nantes v. Thompson, 2 East, 385. Crauford v. Hunter, 8 T. R. 13.

(t) Infra, 1150.

(u) Abbott's Law of Shipping, 72.