Phelps v. Stearns

70 Mass. 105

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1855
• Status: Published

Opinion

Metcalf, J.

Not only is no precedent shown for the maintenance of this action, but there are numerous authorities, ancient and modern, that such an action cannot be maintained at common law. Jerom & Knights case, 1 Leon. 107. Damport v. Sympson, Cro. Eliz. 520, Owen, 158, and 2 Anderson, 47. Eyres v. Sedgewicke, Cro. Jac. 601, and 2 Rol. R. 197. Harding v. Bodman, Hut. 11. Dawling v. Wenman, 2 Show. 446. Bostwick v. Lewis, 2 Day, 447. Smith v. Lewis, 3 Johns. 157. Cunningham v. Brown, 18 Verm. 123. Dunlap v. Glidden, 31 Maine, 439. On these authorities, this demurrer must be sustained ; there being no statute provision for the action.

The only case, in which our statutes have authorized an action against a person for false swearing, is that of one who is summoned as trustee in the process of foreign attachment. Rev. St« c. 109, § 78. And the only statute provisions, in a case like that set forth in the declaration now demurred to, are, that the debtor'may be convicted of perjury, and that, after such conviction, he shall have no benefit from the discharge which the justices granted him from his imprisonment. Rev. Sts. c. 98, §§ 14, 15.

By the English Sts. of 5 & 28 Eliz., a party grieved by a judgment obtained by the perjury of witnesses might, after the reversal of the judgment, “ recover his damages against every such person as did procure such judgment against him, by action on the case.” 1 Gabbett Crim. Law, 806. 2 Russell on Crimes, (7th Amer. ed.) 604. A similar provision was made by our provincial St. 4 W. & M., in case of perjury in depositions given in a court of record. Anc. Chart. 241, 242. Neither of these statutes, even if now in force, would sustain the present action.

Demurrer sustained.