The opinion of the court was delivered by
Bennett, J.This was an indictment for perjury, in making-oath to an answer to a bill in chancery, and the case comes up upon a motion in arrest, and also upon exceptions, taken on the trial before the traverse jury.
Several objections have been taken to the sufficiency of the indictment, and the most formidable one is, that it does not sufficiently appear that the answer was sworn to in a judicial proceeding.
Though our statute has declared that it shall be sufficient in an *569indictment for perjury, to set forth the substance of the offence charged, yet, I apprehend it is material that it should appear that the oath was had in a judicial proceeding, and that this is matter of substance. It was so held in Rex v. Overton, 43 Eng. Com. Law 87, in reference to the statute of 23 G. 2, and we apprehend our statute should not have a different construction in this particular.
The indictment alleges that Moses Buchanan did exhibit his certain bill of complaint, in writing, against Josiah Chamberlin, and others named, in the court of chancery within and for the County of Orange, then being in session, which said bill was directed to the chancellor of the 2d judicial circuit, and the pleader makes the following reference to the bill: “as in and ly said lili of complaint of the said Moses Buchanan, remaining, filed of record, in the said court of chancery, amongst other things will more fidly appear.”
I at first doubted whether it did sufficiently appear that the alleged perjury was committed in a judicial proceeding, but upon the examination of the precedent given in Chitty’s Crim. Law (2d vol. 386) for an indictment for perjury in an answer sworn before a master in chancery, it appears that this indictment is strictly in accordance with that precedent. The allegation there, is, “ did exhibit his certain English bill of complaint, etc., in the high court of chancery, etc.,” and the bill is referred to the same as in the present indictment.
If that precedent is a good one in this particular, and sufficient to show, that the alleged offence was committed in a judicial proceeding in England, we see no reason why it should not be sufficient here. Our court of chancery is declared by the statute to be always in session, except for the purpose of passing final decrees. It is said by Mr. Chitty in a note, that this precedent was settled by an eminent Crown lawyer, 'in 1805, upon an examination of precedents, and I am not aware that it has ever been questioned in England. Mr. Chitty himself is good authority for a precedent he may adopt, and it is said in the note, that the indictment against Wallis, in 1800, was in the same form.
For the case of Regina v. Bishop, 41 Eng. Com. Law 169, to which we have been referred, the indictment was for perjury, committed in a proceeding under their Interpleader act, and it was not *570alleged that there had been an application for the obtaining of a rule according to the provisions of that act, without which it did not follow that the proceeding was of a judicial character, and because it was not alleged, that a rule had been obtained, and the indictment was held bad. That is not an authority against this indictment, and upon the whole, we think this indictment does sufficiently allege that the answer was made in a judicial proceeding, which is all that is necessary. The parties could not be at issue until after the answer had come in. The objection that it is not stated in the indictment, that the prisoner was called upon to make answer under oath, or that the bill of complaint had been served upon him, is without force. If the. answer was made in a judicial proceeding•, it is not to be taken that the oath was a voluntary one. It is not necessary that the indictment should allege, or show in what manner the prisoner had used the answer, or refer for that purpose to the files of the court. The guilt was complete as soon as the falsehood was sworn to and sanctioned by the prisoner’s oath; 7 Term 315; 2 Chitty’s Crim. Law. Law, 312.
We see no possible objection to the admission of the evidence to show that the answer was in fact sworn to in this county, though upon the face of the magistrate’s certificate, it appeared to have been sworn to in the County of Caledonia; See Rex v. Emden, 9 East. 437; 2 Russell, 660.
No questions of variance are raised on this bill of exceptions. It is the duty of counsel to point out to the court the variances which they rely upon, that the court may know what questions they are called upon to decide.
It can not be expected that the court can, upon a jury trial, fish up matters of variance. That rule of practice is peculiarly important in a ease of this kind, where a long bill and answer in chancery are offered in evidence.
It does not appear that the bill and answer were objected to, even on the general ground of variance in the county court, and we are not prepared to say that any of the special grounds of variance urged on this trial, could, upon the closest scrutiny, have-availed the party, if objected to in due form. The3, at least, seem to be of a most trivial character, and in no way affect the justice of the trial.
*571There can be no doubt that the particulars, in which the falsehood is assigned, were material, and their materiality sufficiently appears in the indictment. When the perjury is assigned on written documents, from the recital of which, as in this case, it is evident the perjury is material, the express allegation of its materiality may be omitted; 2 Chitty’s Crim. Law, 307.
We see no objection to the charge of the court, and it seems to have been as favorable to the prisoner as the nature of the case would allow.
In regard to the instructions given the jury, relative to a corrupt intention, which has been made the ground of comment, there can be no objection. The government, by proving the falsity of the oath, prima facie, make a case of corrupt swearing to what was false. If it was occasioned by surprise, inadvertency, or by mistake, the proof should come from the respondent, as the Judge charged. It is to be taken, prima, facie, that the prisoner understood what facts were stated in the answer; 2 Chitty’s Crim. Law 312.
Judgment that the respondent take nothing by his exceptions, and sentence was passed upon the prisoner.