PERFECT; PERFECTING.-See note I. PERFORM; PERFORMANCE (See also CONTRACTS, vol. 3, p. 823; PART PERFORMANCE; RESCISSION; SATISFACTION; SPECIFIC PERFORMANCE; TENDER).-Performance is, as the term implies, such a thorough fulfillment of a duty as puts an end to obligations by leaving nothing more to be done.2 PERILS OF THE SEA.-See MARINE INSURANCE, vol. 14, P. 375, note; SHIPPING; BILL OF LADING, vol. 2, p. 233. PERIOD.-A stated and recurring interval of time; a round or series of years, by which time is measured. When used to designate an act to be done or to be begun, though its completion may take an uncertain time, it must mean the day when the thing commences, as the exportation of goods.3 that it was made with reference to some custom. Harris v. Rutledge, 19 Iowa 388. 1. The word "perfect" implies either moral, physical or mechanical perfection. Mallan v. Radloff 17 C. B., N. S. 601. A perfect "machine" may mean a "perfected" invention; not a machine perfectly constructed, but SO constructed as to embody all the essential elements of the invention, in a form that would make them practical and operative, so as to accomplish the result. American Hide etc. Co. v. American Tool etc. Co., 4 Fish. Pat. Cas. 298, 299. See generally, INVENTION, Vol. II, p. 780; PATENTS. Where the vendor, selling goods which he knows to be designed by the vendee for a particular use, warrants them to be "perfect," this must be construed to mean that they are perfect for the use intended; and parol evidence of the vendor's knowledge of the intended use is admissible to explain such a warranty in writing. Roe v. Batcheldor, 41 Wis. 360. A turnpike corporation by its charter, has authority to take gravel from the neighboring lands for "perfecting" the road. "Perfecting," as here used, is equivalent to finishing or completing, and the privilege does not extend to repairing the road. Whitenack v. Tunison, 16 N. J. L. 77. Perfect Obligation.-A perfect external "obligation" confers the right of compulsion; a perfect "right" the right to compel those who refuse to fulfill the corresponding obligation. Aycock v. Martin, 37 Ga. 128; Vattel, Law of Nations, § 17. See also OBLI. GATION, vol. 17, p. 2. Perfect Title.-A perfect "title" means a title which is good in law and equity. Warner v. Middlesex Mut. Assur. Co., 21 Conn. 449. See also VENDOR AND PURCHASER. 2. Hare on Contracts, 269. Performed is synonymous with fulfill. Etna Ins. Co. v. Kittles, 81 Ind. 97. Performed (in Statute of Frauds).-Ex vi termini must mean the complete performance or consummation of the work. Boydell v. Drummond, 11 East 156. See also FRAUDS, STATUTE OF, vol. 8, p. 685. Performance and Satisfaction (Distinguished).—The distinction between "performance" and "satisfaction" is, that the former is the performance in specie of the agreement; the latter is, where the contracting party has done something in lieu of the thing contracted for. Johnson v. Collins, 20 Ala. 435. 3. People v. Leask, 67 N. Y. 528; Sampson v. Peaslee, 20 How. 579. Maryland Acts 1867, ch. 367, authorized the board of police commissioners of Baltimore to order all drinking saloons to be closed "temporarily" whenever in their judgment public peace required it, and made it a misdemeanor to disobey such order "during such period as said board shall forbid." The board issued an order that drinking saloons "be so temporarily closed until further notice." Held, that the legislature had in no way exceeded its authority in conferring such PERIODICAL (See also PERIOD).-Recurring, made or to be made, after the lapse of a specified or regular interval of time; as, periodical allowances of money, payments of interest or of principal and interest.1 PERISHABLE GOODS.-See PERISHABLE PROPERTY. PERISHABLE PROPERTY.-See CARRIERS OF GOODS, vol. 2, p. 853; LEGACIES and Devises, vol. 13, p. 201; SHERIFFS SALES; SUPPLEMENTARY PROCEEDINGS. PERJURY. (See also AFFIDAVITS, vol. I, p. 307; FALSE SWEARING, vol. 7, p. 793; OATH). I. DEFINITION.-Perjury is an assertion, upon an oath duly administered in a judicial proceeding, before a competent court, of the truth of some matter of fact, material to the question depending in that proceeding, which assertion the asserter does not believe to be true when he makes it, or on which he knows himself to be ignorant.2 power upon the board of police commissioners, yet such board was authorized by the statute to close the drinking saloons only for a short and definite interval, and consequently the order to close them "until further notice" was void, and no indictment could be founded thereon. State v. Strauss, 49 Md. 288. See also PERIODICAL. 1. Anderson's L. Dict. "Periodical payments," apportionable under the English Apportionment Act, 1870 (33 & 34 Vict., ch. 35, § 2), "must be payments occurring periodically, that is, at fixed times, from some antecedent obligation, and not at variable periods at the discretion of individuals." Jones v. Ogle, 42 L. J., Ch. 337; 8 Ch. 192. Therefore it was held that in that case that profits in a private trading partnership were not within the phrase. A "periodical work," within the English Copyright Act, 1842 (5 & 6 Vict., ch. 45), is "a work that comes out from time to time and is miscellaneous in its articles." Brown v. Cooke, 16 L. J., C. H. 142. But a newspaper was held not a "periodical" within §§ 18, 19 of that act. Cox v. Land and Water Journal Co., L. R., 9 Eq. 324. But in Walter v. Howe, 17 Ch. D. 708; Cox v. Land etc. Co., it was not followed, and the "Times" newspaper was held to be a "periodical work" within the sections. See also NEWSPAPERS. As to customs' duties on periodicals, see REVENUE LAWS. 2. This is Mr. Stephen's definition of perjury as it appears in his Digest of the Criminal Law. He further adds: "In this definition, the word 'oath' includes every affirmation which any class of persons are by law permitted to make in place of an oath. "The expression 'duly administered' means administered in a form binding on his conscience, to a witness legally called before them, by any court, judge, justice, officer, commissioner, arbitrator, or other person who, by the law for the time being in force, or by consent of the parties, has authority to hear, receive, and examine evidence. "The fact that a person takes an oath in any particular form is a binding admission that he regards it as binding on his conscience; citing Ides v. Hoare, 2 B. & B. 232. "The expression of 'judicial proceeding' means a proceeding which takes place in or under the authority of any court of justice, or which relates in any way to the administration of justice, or which legally ascertains any right or liability. "The word 'fact' includes the fact that the witness holds any opinion or belief; citing Reg. v. Schlesinger, 10 Q. B. 670. "The word 'material' means of such a nature as to affect in any way, directly or indirectly, the probability of any thing to be determined by the proceeding, or the credit of any witness, and a fact may be material although evidence of its existence was improperly admitted." See Reg. v. Gibbon, L. & C. 109. The following is Hawkins' definition: "Perjury, by the common law, seemeth to be a willful false oath, by one who, being lawfully required to depose the truth in any proceeding in a course of justice, swears absolutely in a matter of some consequence to the point in question, whether he be believed or not." Hawk. P. C. (Curw. ed.) 429. Coke's definition is as follows: "Per: jury is a crime committed when a lawful oath is ministered by any that hath authority, to any person, in any judicial proceeding, who sweareth absolutely and falsely in a matter material to the issue or cause in question, by their own act, or by the subornation of others." 3 Inst. 164. Blackstone's definition is the same in substance as Coke's. 4 Bl. Com. 137. The definitions in Russell on Crimes (2 Russ. Crimes 596) and in Bacon's Abridgment (title, Perjury) are similar. In Scotch law Hume de fines perjury as the "judicial affirmation of falsehood upon oath." I Hume Crim. Law, (2d ed.) 360. Bishop's definition is thus: "Perjury is the willful giving, under oath, in a judicial proceeding or course of justice, of false testimony material to the issue or point of inquiry. 2 Bishop's Crim. Law, § 1015. Greenleaf's definition (3 Greenleaf on Evidence, § 188) is as follows: "The crime, as described in the common law, is committed when a lawful oath is administered, in some judicial proceedings or due course of justice, to a person who swears willfully, absolutely and falsely, in a matter material to the issue or point in question." See also Commonwealth v. Powell, 2 Metc. (Ky.) 10; Cothran v. State, 39 Miss. 541; Hood v. State, 44 Ala. 86. In the Appendix to Stephen's Digest of Criminal Law is a curious and interesting note on the historical features of the law of perjury-features little understood. Mr. Stephen says that there are a few references to the offense in the laws of the Anglo-Saxon kings, but that these are very vague and general: the kind of offense now known as perjury differing wholly from the perjury there mentioned. Perjury in those times appeared to have been not so much a lie told about a specific matter of fact in the witness box, as a false oath taken in a case in which the matter at issue was decided by the oaths of the persons interested and their compurgators. At that time and for several centuries afterward the only perjury of which the common law took notice was the perjury of jurors, and this was punished not as a substantial offense, but as an incidental result of the process called "attaint." the main object of which was to set aside a false verdict in certain kinds of actions. The punishment of jurors, if their verdict was set aside on the ground of perjury was very severe. Mr. Stephen thinks that the Year Books contain no reference to the offense of perjury. There is no such title in Broke's Abridgment. There is one case in Fitzherbert. Perjury was regarded as a spiritual offense, of course. The first statutory reference to perjury was in the statute 3 Hen. VII, ch. 1, which established, or, at all events, greatly strengthened and extended the power of the court of Star Chamber. By the statute 32 Hen. VIII, ch. 9, § 3, temporary penalties were first imposed II. ESSENTIAL ELEMENTS OF PERJURY.-1. The Oath, Its Requisites and Form.-To constitute a valid oath, for the falsity of which perjury will lie, there must be an unequivocal and present act in some form in the presence of an officer authorized to administer oaths, by which the affiant consciously takes upon himself the obligation. of an oath. The form of the oath is immaterial, though it should be solemnly administered in such a way as to bind the conscience of him who takes it and to accord with his religious belief. upon the offense of subornation of perjury; perjury itself, however, being left unpunished. Then followed 5 Eliz., ch. 9, which punished subornation of perjury and also perjury. This account of the state of the law in the sixteenth century is supported by Devonport v. Sympson, Cro. Eliz. 520. The law as it now exists in England is fully recognized in many acts of Parliament in many cases, and is in daily use; but it rests, Mr. Stephen says, simply upon a usurpation of the court of Star Chamber under the statute 3 Hen. VII, ch. 1. 1. Coke defines an oath as "an affirmation or denial by any Christian of anything lawful and honest, before one or more that have authority to give the same, for advancement of truth and right, calling Almighty God to witness that his testimony is true." This definition does not accord fully with the modern view of the subject. Bishop (2 Criminal Law, § 1018) amends it thus: "An oath is a solemn asseveration of the truth of a thing, made by a person under the sanction of his religion, appealing to the Supreme Being, in the presence of one having the civil authority to adminis ter it." See O'Reiley v. People, 86 N. Y. 154; State v. Keene, 26 Me. 33. Where, on the trial of an indictment for perjury, the evidence showed a verbal statement before a commissioner, charging B with violating the revenue law, and the commissioner reduced his statement to writing, beginning with the words, M, "being duly sworn," etc., and ending with the jurat, and on being told, "If you swear to this statement, put your mark here," defendant made his mark, it was held, that this was an oath. United States v. Mallard, 40 Fed. Rep. 151. the declaration, but merely authenti cating it. Commwealth v. Carel, 105 Mass. 582. The English authorities usually speak of a corporal oath, meaning simply an oath taken on the Bible and by touching it. It has never been held necessary, however, that the indict. ment should aver this, it being enough to aver that the witness was sworn upon the Holy Gospels to speak the truth, etc. Atcheson v. Everitt, I Cowp. 383; 1 Chitty's Crim. Law 616. In State v. Farrow, 10 Rich. (S. Car.) 165 and Dodge v. State, 23 N. J. L. 455, it was held sufficient to allege that the accused was "duly sworn," without alleging the mode of administering the oath and from Rex v. MacArthur, Peake 155, it would seem that if the indictment stated that the accused was sworn on the Gospels, and the proof was that he was sworn otherwise, the variance would be fatal. But see Rex v. Rowley, R. & M., N. P. 302, to the point that proof that the witness was sworn generally would support the allegation. It has been held that the words, "corporal oath" and "solemn oath" are synonymous, and that an oath taken with the uplifted hand was described properly by either term. Jackson v. State, Ind. 184; State v. Norris, 9 N. H. 96. Even though the statute prescribes the form of the oath, a departure in form merely and not in substance is immaterial. State v. Dayton, 23 N. J. L. 49; s. c., 53 Am. Dec. 270, Sharp v. Wilhite, 2 Humph. (Tenn.) 434; State v. Owen, 72 N. Car. 605; State v. Pile, 5 Ala. 72; Faith v. State, 32 Tex. 373. And see also Tuttle v. People, 36 N. Y. 431; State v. Keene, 26 Me. 33; State v. Whisenhurst, 2 Hawks (N. Car.) 458; Reg. v. Southwood, 1 F. & F. 256. Johnson v. State, 76 Ga. 790; Ui..ted States v. Baer, 18 Blatchf. (U. S.) 493; Com. monwealth v. Smith, 11 Allen (Mass.) 252; State v. Gates, 17 N. H. 373; State v. Green, 24 Ark. 591. And where a On the trial of an indictment for making a false affidavit, it was held that the want of signature was immaterial, the signature being no part of An oath taken voluntarily without the authority of court or statute is extra-judicial and may not be made the foundation of an indictment for perjury.1 A promissory or official oath, i. e., one taken in qualifying for office, cannot, though false, be the subject of an indictment for perjury.2 There may be perjury, though the oath is taken without the compulsion of a subpoena,3 or where an incompetent witness is erroneously sworn,4 or where a witness in testifying waived a constitutional immunity as to giving testimony against himself.5 The effect of an affirmation is the same as regards perjury as that of an oath, the affirmation being designed by statute to meet the conscientious scruples of Quakers, Moravians, and such sects as deem it wrong to take an oath. 2. Court, Tribunal, or Officer Administering Oath.-To constitute perjury the oath must have been administered by a tribunal or officer having authority or jurisdiction in the premises. If the oath was taken before a court, there must have been jurisdiction of the subject matter of the proceeding; otherwise, the oath is extra-judicial.7 witness takes an oath without objecting to the manner in which it is offered and swears falsely he is guilty of perjury. State v. Whisenhurst, 2 Hawks (N. Car.) 458. If, however, the substance of the statute is not followed there is no perjury. Ashburn v. State, 15 Ga. 246. So where the sworn disclosure in trustee process is required by the statute to be in writing, an indictment for perjury will not lie if the disclosure is oral. State v. Trask, 42 Vt. 152. Though the testimony taken at an examining trial should be reduced to writing, as directed by the Texas Code of Procedure, yet perjury may be assigned upon oral testimony taken, but not reduced to writing in such trial. Covey v. State, 23 Tex. App. 388. 1. People v. Travis, 1 Buffalo N. Y. Super. Ct. 545; United States v. Babcock, 4 McLean (U. S.) 115; State v. McCarthy, 41 Minn. 59. And see Pegram v. Styron, 1 Bailey (S. Car.) 595; Van Steenbergh v. Kortz, 10 Johns. (N. Y.) 167; Lamden v. State, 5 Humph. (Tenn.) 83. 2. United States v. Glover, 4 Cranch (C. C.) 190. In Missouri, under the constitution, a violation of the oath or office by a member of the legislature is perjury. 3. Commonwealth v. Knight, 12 Mass. 274; s. C., 7 Am. Dec. 72. 4. State v. Molier, 1 Dev. (N. Car.) 263; Sharp v. Wilhite, 2 Humph. (Tenn.) 434; Haley v. McPhearson, 3 Humph. (Tenn.) 104; People v. Bowe, 34 Hun (N. Y.) 528; Patrick v. Smoke, 3 Strobh. (S. Car.) 147; Chamberlain v. People, 23 N. Y. 85; s. c., 80 Am. Dec. 255; Montgomery v. State, 10 Ohio 220; Shaffer v. Kintzer, 1 Binn. (Pa.) 542; s. c., 2 Am. Dec. 488; Van Steenbergh, v. Kortz, 10 Johns. (N. Y.) 167; Rex v. Dummer, 1 Salk. 374. 5. Mackin v. People, 115 Ill. 312; s. c., 56 Am. Rep. 167; Mattingly v. State, 8 Tex. App. 345; State v. Max. well, 28 La. Ann. 361. 6. Rex v. Wood, 2 Russ. Crimes (3d. Eng. ed.) 632; McGragor v. State, I Ind. 232; State v. McCroskey, 3 McCord (S. Car.) 308; Rex v. Hanks, 3 Car. & P. 419; Morrell v. People, 32 Ill. 499; Commonwealth v. Hughes, 5 Allen (Mass.) 499; State v. Jenkins, 26 S. Car. 121; Renew v. State, 79 Ga. 162; State v. Wimberly (La. 1888), 4 S. E. Rep. 161; Territory v. Anderson (Idaho 1889), 21 Pac. Rep. 417; Lavender v. State (Ga. 1890), 11 S. E. Rep. 861; Anderson v. State, 24 Tex. App. 715; State v. Wilson, 87 Tenn. 693. 7. State v. Alexander, 4 Hawks (N. Car.) 182; State v. Hayward, 1 Nott & M. (S. Car.) 546; State v. M'Croskey, 3 McCord (S. Car.) 308; State v. Wyatt, 2 Hayw. (N. Car.) 56; Commonwealth v. White, 8 Pick. (Mass.) 453; State v. Furlong, 26 Me. 69; Jackson v. Humphrey, 1 Johns. (N. Y.) 498, Boling v. Luther, 2 Tayl. (N. Car.) |