PERFORMANCE. CROSS-REFERENCES. As to Pleading Performance of Conditions Precedent, see the articles CONDITIONS PRECEDENT, vol. 4, p. 626; ASSUMP SIT, vol. 2, p. 999; NEGOTIABLE INSTRUMENTS, vol. 14, P. 529. Pleading Performance of Conditions of Insurance Policy, see the article INSURANCE, vol. 7, p. 413. Pleading Performance of Covenant, see the article COVENANT, vol. 5, p. 380. Pleading Performance in Defense to Actions on Bonds, see the Pleading Performance in Defense to an Action of Debt on an Averment of Performance in Suit to Enforce Mechanic's Lien, see Alleging Performance in Declaring on Contracts, see the article Proving Nonperformance by the Plaintiff under the General Departure in Pleading Performance, see the article DEPART- Necessity for Alleging Request for Performance in Action for Performance of Decree Before Filing Bill of Review, see the Payment into Court, see the article FUNDS AND DEPOSITS Payment, see the article PAYMENT, ante, p. 164. Proof of Performance under General Issue. It being usually proper to introduce, under the general issue, anything which will show that the plaintiff's claim is not well founded in fact, it follows that in actions on contracts the defense of performance of the contract is not ordinarily set up specially.1 1. In Assumpsit, not only such defenses as deny the truth of the declaration, but almost all matters in avoidance may be introduced under the general issue. See the article ASSUMPSIT, vol. 2, p. 987. In Debt, any matter may ordinarily be given in evidence under the general issue, which shows that nothing is due. See the article DEBT, vol. 5, p. 894. In Covenant, however, there being no plea of the general issue, performance General Averment of Performance Not Sufficient. It is held that an averment of a breach of contract is not met by a general plea of performance; such plea should state the manner of performance.1 Conclusion. It seems that a plea of performance properly concludes with a verification.2 must be specially pleaded. See the article COVENANT, vol. 5, p. 342. In Code Pleading the defendant may introduce, under the general denial, any evidence which goes to controvert the facts which the plaintiff is bound to establish in order to sustain his action. See the article ANSWERS IN CODE PLEADING, vol. 1. p. 817. A Special Plea Amounting to the General Issue is bad on demurrer. See the article GENERAL ISSUE, vol. 9, p. 883. Plea Not Amounting to General Issue. Where, in assumpsit for breach of a contract to receive certain lumber, the defendant pleaded that under the terms of the contract he was still in the performance of the same, according to a stipulation that, upon the plaintiff's neglect, the defendant might do the work, and that the plaintiff was barred from maintaining any action until the completion of such performance, it was held that this was not a plea amounting to the general issue. Yellow Poplar Lumber Co. v. Chapman, 74 Fed. Rep. 444. Ples Setting Out Condition. Where, to a contract on which he is sued, the defendant sets up a condition avoiding his liability if kept and performed, his plea should allege the performance of such condition. Smith v. Riddell, 87 Ill. 165. Setting Up Both Illegality and Performance. In Lee v. Dodd, 20 Mo. App. 271, it was held that where the defendant claimed no rights as against the plaintiff under the contract sued on, he could set up both the illegality of the contract and its performance. 1. Conrad v. Western Union Tel. Co., 162 Pa. St. 204; Hogencamp v. Ackerman, 24 N. J. L. 133; Tinney v. Ashley, 15 Pick. (Mass.) 546, 26 Am. Dec. 620. In Sayre v. Minns, 2 Cowp. 575, Lord Mansfield said: "I take this to be a rule in pleading, that you cannot go to issue on a general averment of performance; and the reason is this, that the question may be brought to some degree of certainty and notice given of what is to be agitated at the trial. When a particular breach is as signed, there is an affirmative offered on one side, upon which the other may take issue.' When Plea Must Specially Set Out Manner of Performance. In general, a plea of performance of a condition must show specially the manner of the performance. The exception is, where the matter is of so intricate and complicated a nature, or embraces such a variety of minute circumstances, that a particular statement would cause great prolixity; which the law does not countenance. I Chit. Pl. (5th Eng. ed.) 567. Thus, where the condition is to return all writs, or to account for all moneys received, etc., a general performance may be well pleaded. Story Pl. (1st ed.) 154. But if the condition be to perform a specific act, as in the present case, a special performance must be pleaded. Tinney v. Ashley, 15 Pick. (Mass.) 546, 26 Am. Dec. 620. Failure of Telegraph Company to Deliver Message. In an action against a telegraph company for failure to deliver a message, the defendant alleged that it transmitted the message promptly and correctly over its own line to the terminus thereof, and delivered it for transmission to another company, naming but not further describing this. company, and that the error, if any, occurred beyond its own line. It was held that such affidavit of defense was insufficient for not giving the facts as to the defendant's own handling of the message, the time at which and place to which it was sent, etc. Conrad v. Western Union Tel. Co., 162 Pa. St. 204. 2. Hogencamp v. Ackerman, 24 N. J. L. 133. In Sherwin v. Bliss, 4 Vt. 96, it was held that a plea of general performance, or one alleged in terms not contradicting the specific allegations of the breach in the declaration, or bringing new matter into controversy, properly concludes with a verification. But where a plea of performance consists in nothing but an averment of performance of all things specifically alleged in the declaration not to have been performed, it ought to conclude to the country. PERJURY. BY CHARLES H. STREET. I. JURISDICTION OF THE OFFENSE, 315. 1. At Common Law and by Statute, 31 . 4. Innuendo, 318. 5. Subornation of Perjury, 318. III. PROCEEDING IN WHICH OFFENSE WAS COMMITTED, 319. 1. In General, 319. 2. Name of Action, 321. 3. Names of Parties, 322. 4. That an Action Was Pending, 323. 5. Extra-judicial Oaths, 323. IV. JURISDICTION AND AUTHORITY TO ADMINISTER OATHS, 325. I. At Common Law and under English Statutes, 325. 2. In the United States, 325. 3. Name of Court, 327. 4. Name of Officer, 327. 5. Fustices of the Peace, 328. 6. Various Quasi-judicial Bodies, 328. V. THE OATH, 329. 1. In General, 329. 2. By Whom Administered, 332. VI. SETTING FORTH THE TESTIMONY, 333. 1. According to Substance and Effect, 333. 2. Perjury Assigned upon Written Instrument, 334. VII. THE INTENT, 335. 1. In General, 335. VIII. ASSIGNMENT OF PERJURY, 338. 1. In General, 338. 2. Setting Forth the Truth, 340. IX. MATERIALITY OF THE TESTIMONY, 342. 1. In General, 342. 2. Two Methods of Averring Materiality, 343 3. Immateriality Apparent on Face of Indictment, 344. 4. Materiality of Affidavits, 345. 5. In Ex Parte Proceedings, 345. 6. An Essential Element of the Crime, 345. X. TIME AND PLACE, 346. 1. In General, 346. 2. Time of Administration of Oath, 347. 3. Variance Between Pleading and Proof, 348. XI. INSTRUCTIONS, 349. XIIL THE VERDICT, 350. CROSS-REFERENCES. As to Bills to Impeach Decrees for Perjury, see article BILLS TO IMPEACH DECREES AND JUDGMENTS, vol. 3, p. 630. Instructions on Maxim "Falsus in Uno, Falsus in Omnibus," see Equitable Relief Against Judgments for Perjury, see article New Trial for Surprise by False Swearing, see article NEW an L JURISDICTION OF THE OFFENSE. In ordinary cases indictment for perjury should be found in the county in which the false oath was made.1 But where the offense is committed in a judicial proceeding which is authorized by an Act of Congress it must be prosecuted in the federal courts, even though the crime was committed in a state court.2 1. State v. Hopper, 133 Ind. 460; State v. Bunker, 38 Kan. 737; Guston v. People, 61 Barb. (N. Y.) 35. 2. In United States Courts. State v. Kirkpatrick, 32 Ark. 117; People v. Kelly, 38 Cal. 145; Ross v. State, 55 Ga. 192; State v. Adams, 4 Blackf. (Ind.) 146; State v. Pike, 15 N. H. 83; U. S. v. Cornell, 2 Mason (U. S.) 60; Ex p. Dock Bridges, 2 Woods (U. S.) 428; In re Loney, 134 U. S. 372. Sale of Public Land.- Where, in order to obtain a grant of land, the accused has made a false affidavit to the effect that he is a bona fide settler under an Act of Congress relative to the sale of public land, the state court has no jurisdiction. State v. Adams, 4 Blackf. (Ind.) 146; People v. Kelly, 38 Cal. 145. Contested Election of Member of Congress. The same rule was applied where the perjury was committed be. fore a notary public in the course of an examination concerning a contested election to the House of Representatives of the United States. In re Loney, 134 U. S. 372. But Where the Offense Goes to the Integrity of the State Government, as in false swearing in a naturalization proceeding, while it may be an offense against the federal government, it is also cognizable in the state courts, in so far as it is an offense against the government of the state. State v. Whittemore, 50 N. H. 245; Rump v. Com., 30 Pa. St. 475. But for the contrary doctrine see People v. Sweetman, 3 Park. Cr. Rep. (N. Y. Supreme Ct.) 358. State Court Held in Federal Building.The state courts have jurisdiction of the crime of perjury committed upon the trial of a cause in a state court holding its sessions, by express per II. THE INDICTMENT GENERALLY 1. At Common Law and by Statute. On principle it would seem sufficient in an indictment for perjury to allege the essential elements of the offense; to wit, that A. was duly sworn in a judicial proceeding pending before a court of competent jurisdiction, and that he wilfully gave false testimony concerning a matter material to the issue, the testimony being set forth in the indictment. But under the common law the forms of these allegations were so technical and complicated that it became almost impossible to frame an indictment which would withstand attack, and great injustice resulted from the constant overthrow of indictments on merely technical grounds. The statute 23 Geo. II., c. II, which authorized a shorter and simpler form of indictment, was passed to remedy this evil, and remained in force until it was superseded by the statute 14 & 15 Vict., c. 100, § 20, which is the present enactment on this subject in England.3 mission of the federal authorities, in a United States custom house situated within the limits of a county town, and under a state law authorizing the judge to hold the court in the said custom house. Exum v. State, 90 Tenn. 501. In Connecticut the Superior Court has been deprived of any original jurisdiction over the offense of perjury by the Act of 1870 (Gen. Stat. Conn., 1888, $1485), making perjury punishable by imprisonment in the county jail or state prison, and prescribing no minimum term of imprisonment. State v. Davidson, 40 Conn. 281. 1. For the general form of indictments for perjury see 2 Chitty's Crim. Law 318; 2 Archb. Crim. Pr. and Pl. 600. Motion to Quash a Demurrer. — The question whether the indictment contains a charge of perjury should not be entertained on a motion to quash, but the prisoner should be put to his demurrer. Com. v. Litton, 6 Gratt. (Va.) 691. 2. Statute 23 Geo. II., c. 11.—“ In every indictment and information for wilful and corrupt perjury, it shall be sufficient to set forth the substance of the offense charged upon the defendant, and by what court or before whom the oath was taken (averring such court or person or persons to have a competent authority to administer the same), together with the proper averment or averments to falsify the matter or matters wherein the perjury or perThe essentials of an indictment for juries is or are assigned, without setperjury by a juror on his voir dire are ting forth the bill, answer, informadiscussed in Com. v. Stockley, 10 Leigh tion, indictment, declaration, or any (Va.) 712; State v. Howard, 63 Ind. 502. part of any record or proceeding, either Two Distinct False Statements. An in law or equity, other than as aforeindictment for perjury may charge two said, and without setting forth the distinct false statements under oath, if commission or authority of the court or the statements were both given under person or persons before whom the one oath and in one proceeding. perjury was committed." Cover v. Com., (Pa. 1887) 8 Atl. Rep. 196. Several Particulars-One Count. And all the several particulars in which the prisoner swore falsely may be embraced in one count. State v. Bishop, I D. Chip. (Vt.) 120; State v. Bordeaux, 93 N. Car. 560. Separate Counts- Election. - The state cannot be compelled to elect upon which separate count it will proceed. Hanscom v. State, 93 Wis. 273. 3. Statute 14 & 15 Vict., c. 100, § 20."In every indictment for perjury, or for unlawfully, wilfully, falsely, fraudulently, deceitfully, maliciously. or corruptly taking, making, signing, or subscribing any oath, affirmation. declaration, affidavit, deposition, bill. answer, notice, certificate, or other writing, it shall be sufficient to set forth the substance of the offense charged upon the defendant, and by what court, or before whom, the oath, affirma |