1809. SHAFFER ́under certain forms of action, the defendant, at this day in courts of justice, would have his privilege to repel on his own oath and that of others, the allegation of the plaintiff. These KINTZER. Oaths, though in a certain sense voluntary, would not be extrajudicial. V. An oath administered by a justice where he has no jurisdiction, cannot be distinguished from an oath administered by one not a justice; for the proceeding of any tribunal, of a civil nature, must be founded on the plaint of a party; and where the tribunal proceeds without plaint, or entertains a plaint over which it has no cognisance, there is, in contemplation of law, no proceeding before it; and an oath taken in such a case is extrajudicial. A justice has no jurisdiction even on plaint made, where the jurisdiction is not given by positive statute, or where it is excluded by those principles which exclude the jurisdiction of every judicial forum; as where cognisance of the plaint is against public policy, or general convenience. Where a matter actually exists in dispute, and, superseding all necessity of process, it is agreed to be referred to the oath of a party on a certain particular, the oath will not be extrajudicial, provided the matter in dispute be of such a nature as is within the cognisance of the justice; for it is an agreement of the parties to terminate the controversy in this way. I will not say, that, even if the justice had not cognisance of the matter on the ground of cause of action, from the subject of the controversy, or from the quantum of the demand, an oath on such an agreement might not be administered to the parties, or to a witness offered by them, and agreed upon to be admitted; and that in that case it might not be judicial. But no agreement would warrant the administering an oath in a matter, the taking cognisance of which would be contrary to good policy: as in the case of a wager respecting an election, or the defect or infirmity of a third person. No prosecution would lie on an allegation of perjury in such a case; nor would an action of slander lie for an imputation of perjury in such a case. The law throws it entirely out of its protection, and can take no notice of it unless as a misdemeanor in the officer who administers. The law takes no notice, says Blackstone in his Commentaries, of any perjury but such as is committed in some court of justice having power to administer an oath; or before some magistrate, or proper officer invested with a similar authority, in some proceedings relative to 1809. SHAFFER υ. a civil suit, or a criminal prosecution. For it esteems all other oaths unnecessary at least, and therefore will not punish the breach of them. For which reason it is much to be questioned how far any magistrate is justifiable in taking a voluntary affida- Kintzer. vit in any extrajudicial matter, as is now too frequent upon every petty occasion; since it is more than possible that by such idle oaths a man may frequently, in foro conscientiæ, incur the guilt, and at the same time evade the temporal penalties, of perjury. 4 Bl. Comm. 137. And Coke in his Institutes lays it down as has been quoted, that where the court has no authority to hold plea of the cause, it is coram non judice. 3 Inst. 166, cites Bract. lib. 4. fo. 180. To apply these principles to the case before the court. The words laid to be spoken are "that he swore falsely." These words do not, of themselves, necessarily import a charge of perjury, or any indictable offence. "Perjury is a crime com"mitted, when a lawful oath is ministered by any that hath "authority, to any person in any judicial proceeding, who swear"eth 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. "If a man calleth another a per'jured man, he may have his action upon the case, because it 'must be intended contrary to his oath in a judicial proceed"ing; but for calling him a forsworn man, no action doth lie, "because the forswearing may be extrajudicial." 3 Inst. 166. And to say generally that a man hath forsworn himself, is not actionable; because he may be forsworn in common conversation, or it may be an expression of mere passion and anger, 4 Co. 15. b; nor shall it be intended to be referred to a case where perjury may be committed. It may be said, that after a verdict, it shall be taken to have been in evidence, that the oath, which was spoken of by the defendant, and said to have been sworn falsely, had been taken in the course of a judicial proceeding, and legally administered; but the introductory averment, as well as the colloquium, shews that the supposed defamatory words were applied to a mere voluntary oath, extrajudicially and illegally taken. So that it appears to me, the errors assigned in this cause are supported, and warrant a reversal of the judgment. Judgment reversed. 1809. SHAFFER V. Frazer then moved the court to award a venire de novo, two of the counts being clearly good; and he cited the case of Grant v. Astell, Doug. 731, where Buller J. lays down the docKINTZER. trine, which is adopted by the court, that where entire damages have been assessed upon several counts, some good, and others bad, and judgment for that reason is reversed, a court of error may award a venire de novo. TILGHMAN C. J. I believe there is a late case in which a venire de novo was refused in slander; but I see no reason for the distinction. The case in Douglas is good law and good sense; and I am willing to abide by it. PER CURIAM, Venire de novo awarded. Saturday, his real es Lessee of SMITH against FOLWELL. 4. devises all EJECTMENT for a messuage and lot in the city of Philadelphia, in which the following case was stated, to be conson B., and sidered as a special verdict. tate to his his heirs law. fully begot ten; and in case of his death with out such is sue, he orders C. his executors trators to sell "John Bleakley the elder, being seised in fee of the premises in the declaration mentioned, on the 8th day of August 1768, duly made and executed his last will in writing of that date, and thereby devised as follows: "As for and concerning my "worldy estate, I give, devise, and bequeath, the same in "manner following, &c. I give and bequeath to my brother and adminis." David Bleakley, living in the north of Ireland, the sum of 10%. the real es- sterling. Also, I give and bequeath to my brother William "Bleakley, living near Dungannon, the sum of 10. sterling. two years after the son's" Also I give and bequeath to my sister Margaret Harkness, "of Dungannon, the sum of 100. sterling. Also I give and he bequeaths the proceeds" bequeath to my sister Sarah Boyle, wife of the rev. Mr. Boyle, thereof to his the sum of 10l. sterling. Also, I give to my cousin Archibald "Young, of Philadelphia, an annuity of 30l. Pennsylvania money, to be paid him out of the rents and profits of my real tate within death; and brothers and sisters by name, and their heirs forever, or such of them as shall be living at the death of the son, to be divided between them in equal proportions, share and share alike. All the brothers and sisters die, leaving issue. Then C. dies, and afterwards B, the son, without issue. Heirs is a word of limitation; and none of the brothers and sisters being alive at the death of B., the object of the power to sell, has failed; their issue are not entitled; and a sale by the executors of C. conveys no title. A power to C. and his executors to sell, may be executed by the executors of C.'s executor, if the object of sale continues. 66 "estate, on the 25th day of March in every year, during the tage; and I do hereby give and bequeath the proceeds thereof "to my said brothers David Bleakley and William Bleakley, "and my said sisters Margaret Harkness and Sarah Boyle, "and their heirs forever, or such of them as shall be living at "the decease of my said son, to be divided between them in equal "proportions, share and share alike, after deducting out of "such proceeds the sum of 400l. sterling, herein before given "and bequeathed to the said A. Y. immediately on the decease "of my said son without issue, in lieu of the annuity above "mentioned; and in case my said son should die before he at"tains the age of 21 years without issue lawfully begotten as "aforesaid, then my will and mind is, that the remainder of (( my personal estate hereby intended for my said son at his own disposal, if he should live to attain the age of 21 years, "shall go and be divided amongst my said brothers and sisters "with the proceeds of my real estate, as is herein before direct"ed to be divided." The testator then appointed Archibald Young his executor, and in the same year died seised." 1809. Lessee of SMITH V. FOLWELL. 1808. of V. FOLWELL. John Bleakley the younger, the devisee named in the said Lessee will, afterwards, to wit, in the same year, entered into possession of the premises therein mentioned, of which the premises SMITH named in the declaration are part, and held and enjoyed the same until the 3d day of September, 1802, when he died of full age and without issue, after having duly made his last will in writing, bearing date the 19th of April, 1802, and thereby appointed Joseph Parker Norris his executor." (By this will the testator directed his real and personal estate to be sold, and the proceeds, after paying legacies, to be divided among certain of his relations share and share alike.) "On the 25th day of May, 1803, the said Joseph Parker Norris, executor as aforesaid, in consideration of 7000 dolls. lawful money of the United States, to him paid by William Folwell, the defendant in this action, bargained and sold the said premises to the said William Folwell and his heirs." "The following legatees, named in the will of the said John Bleakley the elder, and who were next of kin to him, as well as to John Bleakley the younger, died at the following periods, that is to say, Sarah Boyle between the years 1760 and 1770, leaving issue who are still alive; William Bleakley in the year 1775, leaving issue who are still alive; David Bleakley in the year 1790, leaving issue who are still alive; and Margaret Harkness in the year 1794, leaving issue who are still alive." “The said Archibald Young, executor of the will of the said John Bleakley the elder, on the 3d of May 1782, duly made and executed his last will in writing; and thereof appointed Robert Correy his executor, and died on the 27th of May in the same year, without having disposed of the premises in the declaration mentioned." "On the 24th of April, 1797, the said Robert Correy duly made and executed his last will in writing, and thereof appointed Eleanor Correy and James Boyde executors, and afterwards died, to wit, on the 1st day of June 1802, without having disposed of the premises in the declaration mentioned." "On the 1st day of February, 1805, the said Eleanor Correy and James Boyde, executors as aforesaid, for a valuable consideration in lawful money to them paid by James Smith, the lessor of the plaintiff, bargained and sold to him and his heirs the premises in the declaration mentioned. The said James Smith, at the time of the said purchase, had notice of |