SYLLABUS.

FRANK R. CARSWELL vs. RICHARD PATZOWSKI, Owner or reputed owner.

Mechanic's Lien-Scire Facias; Service of-Sheriff's ReturnStatute; Construction of-Practice.

Under the statute (Rez. Code, 820) providing for the service of a scire facias upon a mechanic's lien, service must be made upon the defendant, also copy left with some person residing in the building if occupied as a place of residence; and if not so occupied it shall be affixed upon the door or other front part of such building.

(September 18, 1902.)

LORE, C. J. and SPRUANCE and BOYCE, J. J., sitting.

Herbert H. Ward for plaintiff.

Robert H. Richards and William S. Hilles for defendant.

(Special appearance for the purpose of making a motion).

Superior Court, New Castle County, September Term, 1902.

SCIRE FACIAS UPON A MECHANIC'S LIEN (No. 9, September Term, 1902).

Motion to quash and set aside the service and return of the scire facias issued in the above stated cause.

The sheriff's return was as follows:

"Made known personally to Richard Patzowski, owner or reputed owner, July 1st, 1902. So answers Samuel A. McDaniel, Sheriff."

Mr. Hilles :-This is a scire facias upon a mechanic's lien. The statute (Rev. Code, 820) providing for service of this writ, says: The said writ shall be served in the same manner as other writs of scire facias, upon the defendant therein named, if he can

ARGUMENT-OPINION.

be found within the county; and a copy thereof shall be left with some person residing in the building, if occupied as a place of residence; but if not so occupied, it shall be the duty of the sheriff to affix a copy of such writ upon the door or other front part of such building.

The statute having provided for the mode of service, and it being a proceeding in rem, with a possibility of the copy being served upon some one else other than the defendant named in the case, there is a strong reason why the statute should be construed strictly.

50 Md., 226 (232).

LORE, C. J.:-The statute requires two things to be done; the return of service shows that but one thing was done, viz., service on the defendant. We make the order to vacate the return of the sheriff.

STATE US. PATRICK FAHEY.

Criminal Law-Perjury; Subornation of- What Necessary to Prove-Two Witnesses not Necessary-Accomplice-Credit Given to His Testimony in Cases of Felony-Corroboration of-Testimony of Suborned Witness-Reasonable Doubt.

1. At common law, perjury is committed when a lawful oath is administered in some judicial proceeding or due course of justice to a person who swears wiflully, absolutely and falsely in a matter material to the issue or point in question. Where the crime is committed at the instigation or procurement of another, it is termed subordination of perjury.

SYLLABUS.

2. In order to convict of this crime the jury should be satisfied from the evidence (1), that the testimony of the witness claimed to have been suborned was false; (2), that it was given by him wilfully and corruptly, knowing it to be false; (3), that the defendant knew or believed that such testimony would be false; (4) and that the defendant also knew or believed that the witness claimed to have been suborned would wilfully and corruptly so testify; (5), that the defendant induced or procured the said witness to give such false testimony.

3. In proof of the crime of perjury it was formerly held that two witnesses were necessary, because otherwise there would be nothing more than the oath of one man against another, upon which the jury could not safely convict. But this strictness has long since been relaxed; the true principle of the rule being merely this, that the evidence must be something more than sufficient to counterbalance the oath of the prisoner, and the legal presumption of his innocence.

4. The degree of credit which ought to be given to the testimony of an accomplice is a matter exclusively within the province of the jury. It has sometimes been said that they ought not to believe him unless his testimony is corroborated by other evidence; and without doubt, great caution in weighing such testimony is dictated by prudence and good reason. But there is no such rule of law; it being expressly con ceded that the jury may, if they please, act upon the evidence of the accomplice without any confirmation of his statement. But on the other hand, judges in their discretion will advise a jury not to convict of felony upon the testimony of an accomplice alone and without corroboration, and it is now so generally the practice to give such advice, that its omission would be regarded as an omission of duty on the part of the Judge. It may be now regarded as the settled course of practice not to convict a prisoner in any case of felony upon the sole and uncorroborated testimony of an accomplice.

5. The same rules are applicable to the case of a witness who has perjured himself in a former trial; and in cases of this character there should not be a conviction of a felony upon the uncorroborated testimony of such a witness.

LORE, C. J., and SPRUANCE and BOYCE, J. J., sitting.

Herbert H. Ward, Attorney-General, and Robert H. Richards, Deputy Attorney-General, for the State.

John Biggs and Samuel S. Adams, Jr., for the defendant.

Court of General Sessions, New Castle County, September Term, 1902.

INDICTMENT.

INDICTMENT FOR SUBORNATION OF PERJURY.

The first count of the indictment was as follows:

"That at the November Term, A. D. 1901 of the Court of General Sessions of the State of Delaware, in and for the County of New Castle, holden at the City of Wilmington, in the County of New Castle and State of Delaware, before the Honorable Charles B. Lore, Chief Justice, and the Honorable William C. Spruance and Ignatius C. Grubb, Associate Judges of the said State, and sitting in said Court, the said Court then and there being in session, and the said Court having then and there authority to hear and determine divers felonies, misdemeanors and other offenses against the laws of the State of Delaware, a certain indictment was presented and returned in due course of law by the Grand Jury for the said County against one John Lynn, the said indictment being No. 49 to the November Term, A. D. 1901, aforesaid, of said Court, and the indictment charging the said John Lynn with obtaining by certain false pretenses in said indictment set forth certain money, to wit, the sum of fifty-six dollars lawful money of the United States of America, from one Horace G. Rettew, the said Horace G. Rettew being then and there the Receiver of Taxes and County Treasurer of the said County of New Castle, and that afterward the said John Lynn was duly and legally arraigned upon said indictment and pleaded to the same that he was not guilty thereof; upon which issue such proceedings were had that afterward, to wit, at the said November Term, A. D. 1901 of the said Court of General Sessions in and for the County aforesaid, so held, as aforesaid, a trial was had and held, before a jury duly drawn and empaneled, between the said State of Delaware and the said John Lynn upon the said indictment, upon which said trial evidence was given on behalf of said State of Delaware against the said John Lynn that the misdemeanor in said indictment specified and charged, to wit, the misdemeanor of obtaining money by false pretenses, was committed by the said John Lynn as in said indictment set forth, and

INDICTMENT.

the jurors first aforesaid upon their oaths and affirmations respectively aforesaid do further present that Patrick Fahey, late of Wilmington Hundred, in the County of New Castle aforesaid, being a person of an evil and wicked mind and disposition and devising and intending as much as in him lay to prevert the due course of law and justice and to cause and procure the said John Lynn to be entirely acquitted of the said misdemeanor charged on him by the said indictment and to escape punishment for the same, did, before the said trial, to wit, on the first day of November in the year of our Lord one thousand nine hundred and one, at Wilmington Hundred aforesaid, then and there unlawfully, corruptly, wickedly, maliciously and feloniously, solicit, suborn, instigate and endeavor to persuade one Frederic Vansant to be and appear as a witness at the trial of the said issue, upon which issue the said State of Delaware was the plaintiff and the said John Lynn was the defendant, for and on behalf of the said John Lynn, the defendant in the said issue as aforesaid, and upon the said trial falsely to swear and give in evidence upon his corporal oath, taken upon the Holy Evangels of Almighty God, to and before the jurors which should be sworn to try the issue aforesaid, certain matters, material and relevant to the said issue and to the matters therein and thereby put in issue in substance and to the effect following, that is to say: That he, the said Frederic Vansant, upon some day in the month of October in the year of our Lord one thousand nine hundred, was at the house of the said John Lynn in Elsmere, in the County aforesaid, and while so at the house of the said John Lynn, on the said last mentioned day that he, the said Frederic Vansant, heard a certain conversation between the said John Lynn and a certain Lawrence M. Whiteman concerning the payment of the sum of fifty-six dollars in money by the said Lynn to the said Whiteman,and that he, the said Frederic Vansant, on the said last mentioned day, while so, as aforesaid, at the said house of the said Lynn, saw the said Lynn give to the said Whiteman certain money, and that he, the said Frederic Vansant, on the said last mentioned day, while so, as