#### State vs. Wyatt.

JNDICTMENT for perjury in swearing to his attendance as 4- a witness in the county court or Martin, before a justice of" the peace, and charging for eight days attendance, v/héreas he list! not attended eight days, &c.

Far curiam.

Haywood, Justice, only present.

The prose, cntor may be a witness, though he be the person who is liable to pay for the attendance ; for a verdict and conviction in this prosecution cannot he given in evidence to prove it; the evidence ticket being taxed in the execution, ia a recovery in the form prescribed bylaw; but it is alledged on the part of the defendant, that the justice was not empowered by any law to take probate of this evidence ticket; the indictment fails at once, and is useless to proceed any further in the trial- This indictment concludes against the act of Assembly, and this subjects to the punishment of perjury only, where the oath is taken before some officer authorised to take it pursuant to the laws of the state. In order to make it a perjury, the oath must be taken in some judicial proceeding, and before some person empowered to administer that oath that is taken ¿ a mere voluntary oath cannot amount to perjury.

The Attorney-General endeavoured to contraven these practices, and offered some authorities to shew the contrary. — » But, Per curiam, The doctrine is incontrovertable. — I have no doubt upon the subject. — Not an instar.ee can be shewn to the contrary. — Perhaps the defendant might be indicted lor a misdemeanor. — I think I have known some prosecutions of that kind supported.

There was a verdict for the defendant.