16 Iowa 36 | Iowa | 1864
It has been decided by this Court, in the case of Games v. Manning, 2 G. Greene, 251, that in order for the maker of a promissory note, payable in property, to discharge himself from his obligation, it was necessary for him to pay or tender, or properly designate or set apart the property at the time and place specified. But if the maker fails to do so, and the payee demands the property after the note becomes due, such demand is a waiver of any previous breach, and gives the maker a second opportunity to deliver or tender, or set apart the property in payment of the obligation. The same principle, so far as applicable to that case, was recognized and approved in the subsequent case of Williams v. Triplett, 3 Iowa, 518. In the light of these cases, it is difficult to see how the District Court could justify its action, even upon the hypothesis, which seems to have formed the basis of its decision.
But in the view which we take of the case, it is unnecessary to decide as to the sufficiency of the second count, in the answer of the defendant in the civil cause. The assignment of perjury was not upon that portion of the affidavit which set forth the facts expected to be proven by the witness; nor is that the only material part of the affidavit for continuance. Under our practice, an affidavit for .continuance has .three material and. essential parts. It
The instructions given by the Court seem to be based upon the theory, that perjury can only be committed by swearing falsely to some matter directly material to the main issues in the case; but such is not the true rule of law, as we shall see by reference to a few well recognized authorities. In the case of Rex v. Greipe, 12 Mod., 142, Lord Holt said: “I think a false oath any way conducive to the matter in issue, or a guide to the jury, though it be circumstantial, is perjury. * * * * If it be a matter that tends to the discovery of truth, though but a circumstance as, that such an one wore a blue coat, when he wore a red, it is perjury; but if he tells an impertinent story nothing to the purpose, then it is not so. If a man speak to the credit of a witness, which is not directly to the issue, yet if false, that is perjury;” or as the same learned Judge is reported in 1 Lord Raymond, 258, in the same case, “that it is not necessary to appear, in an information for peijury, to what degree the point in which the man is perjured was material to the issue, for if it is but circumstantially material, it will be perjury.”
So it is said in the ease in-1 Hawkins’ P. €.,• 320, that
The issue before the Court, at thfe time of the taking of the oath by the defendant, which is alleged to be false, was the collateral' issue arising upon the motion for a continuance. One material fact, pertinent to that issue, was the absence of the witness from the county, and the consequent inability to procure his attendance; and it is upon the sworn statement of the defendant, as to this material fact, that the perjury is assigned. It would be as inconsistent with law as it is with good morals and common sense, to permit the party to escape the penalty of his perjury, by asserting that his false oath was not material to the issues in the ease, the trial of. which he had thereby
The ruling of the District Court was, therefore, erroneous.