on her counterclaim, and in support of the judgment we are of the opinion that the allegations regarding the recovery of damages may be treated as surplusage. In the case of Montgomery v. McLaury, 143 Cal. 83, 76 Pac. 964, a similar question was considered. At pages 87 and 88 thereof (143 Cal.), at page 966 of 76 Pac. it is said:

But

time when performance of his obligation was due by Kriebel, and the time when he failed therein, and the time when Mrs. Phillips' right of rescission arose-it must be presumed that the stock was of some value at that time, and so should have been returned and rescission made at the proper time. It appears by the complaint and from the findings that 40,000 shares of this stock were in the "It seems perfectly clear from the whole hands of Kriebel or his assignees as collater-frame of the complaint, no less than from the al security for the note. Therefore defend- specific relief which it prays, that the intenant Phillips had not possession of the stock tion of the pleader was to state facts entitling to give to the defaulting defendant, but the him to the rescission which he prayed. stock was actually in his own hands. She at the same time he stated facts showing that had the right, upon the failure of considera- the plaintiffs had been damaged in the sum of tion for her note, either to rescind at once $7,000, and since he prayed also for the recovor to wait and defend upon that ground any that the theory of the complaint was to set ery of that amount of damages, it would seem suit that might be brought on her note, and forth all the facts surrounding the transaction she could not have recovered back these and to pray for any and every kina shares of stock deposited as collateral after of relief to which, upon the facts, the plainsuccessfully defending a suit upon the note tiffs might be found entitled. In most cases given for their purchase price. It appears, this is a correct theory of pleading under our therefore, that defendant Phillips has done system of practice, which recognizes but one everything required of her and everything form of action-an action on the case. But it sometimes happens that a party seeking redress for an injury is obliged to make an election between two inconsistent positions, and planting himself firmly upon one to definitely renounce the other before he can claim relief in any form.

that she could do.

There is one other matter urged by appellant which warrants consideration. It arises also in connection with the claim of waiver by defendant Phillips of her defenses to the note. Defendant Phillips, in addition to filing her answer in this cause, filed a crosscomplaint against defendant Kriebel setting up the fact of the breach of his agreement to resell the stock for the price agreed upon therein, and asking damages for such breach of contract. She was not awarded such damages, but she was adjudged free from liability upon her note because of a failure of consideration therefor. Appellant points out that Mrs. Phillips had a choice of two remedies upon the failure of consideration-either the remedy of rescission and recovery of the consideration paid by her, or an affirmance of the contract, and a suit for damages. Therefore, it is argued, her crosscomplaint in which she asked for damages for the breach was an affirmance of the contract; it was an election on her part not to rescind, and therefore the defense to her note based upon the theory of rescission of the contract should not have been permitted to her.

here.

Such, appellants contend, is the case The doctrine is well settled, they say, that one defrauded in a bargain is restricted to one of two remedies, between which he must make an election before he can institute an his action at law for damages for the deceit, action. He may affirm the contract and have or he may disaffirm the contract and sue in equity for a rescission, but he cannot pursue both remedies at the same time, nor either until he has affirmed or disaffirmed the contract; for until he affirms he has no cause of action for the deceit, and until he disaffirms, he has no right to a rescission. is no such rigid and inexorable rule as to elec

* *

* There

tion of remedies in cases of fraud as that for which the appellants contend. It is undoubtedly true that when one who has been defrauded in a contract elects to affirm it after dis

covery of the full extent of the fraud he can

not afterwards claim a rescission.

*

This is

It

simply a result flowing from the general doc-
trine of estoppel. But an election to disaffirm
a contract induced by fraud, and an effort to
obtain a rescission, will not, if resisted,
* bar an action based upon a subse-
quent affirmance of the contract.
is not denied that the complaint in this case
contains every allegation necessary to sustain
other allegations which it contains, as well as
an action for deceit, but appellants contend that
its specific prayer for relief, show that the
contract has been disaffirmed, and therefore
that it will not sustain a judgment based upon
the theory of affirmance.
There does
not seem to be any good reason why, after a
trial of the issues and after findings by the
made impossible by the acts of the appellants,
those portions of the complaint which are
framed with a view to rescission may not be
treated as surplusage. * * No injustice

[10, 11] It is permissible to set up inconsistent defenses without raising a presumption that one is a waiver of the other. Billings v. Drew, 52 Cal. 565; Eppinger v. Kendrick, 5 Cal. Unrep. 295, at pages 300, 301, 44 Pac. 234; Snipsic Co. v. Smith, 7 Cal. App. 150, 93 Pac. 1035. We see no reason for a different rule when the allegations are set up in answer and counterclaim. Section 441, Code of Civil Procedure, provides that a defendant may set forth by answer as many defenses and counterclaims as he may have. As before stated, the defendant in the present case was not permitted to recover up-can then possibly result from treating as mere

court which show that a rescission has been

*

Nev.)

(193 P.)

surplusage all such portions of the complaint and the prayer for relief as may have reference to a rescission."

[12] We think the facts in the present case present the same reason for the rule just case the facts in the from quoted as which the quotation was taken. We are also persuaded that the judgment should be sustained by the consideration that it plainly appears from the entire record before us that substantial justice has been done between the parties, and, under such circumstances, a reversal is not warranted because of any error in the pleadings. Nothing was awarded to defendant Phillips under the superfluous allegations contained in her pleadings, and no damage has resulted to the appellant by reason thereof.

The judgment is affirmed.

Augustus Tilden, of Reno, for petitioner. L. B. Fowler, Atty. Gen., Robert Richards, Deputy Atty. Gen., and Lester D. Summerfield, Dist. Atty., of Reno, for respondent.

DUCKER, J. This is an original proceedAn information was ing in habeas corpus. filed in the Second judicial district court of the state of Nevada, in and for the county of Washoe, on the 29th day of April, 1920, by the district attorney of said county, in which petitioner was charged with the crime of subornation of perjury. A bench warrant was issued upon the information, and petitioner was arrested by the sheriff of said He was released from the Washoe county. custody of the sheriff upon furnishing bail, and thereafter surrendered himself to the officer. It is from this custody he now seeks to be discharged upon this writ.

Petitioner is an attorney at law, and was

We concur: NOURSE, J.; BRITTAIN, J. attorney for the plaintiff in a divorce action

(44 Nev. 268)

Ex parte SHELDON. (No. 2453.) (Supreme Court of Nevada. Dec. 31, 1920.) 1. Perjury 13-Attorney guilty of subornation of perjury in inducing client suing for divorce to swear falsely.

The act of the attorney for a wife suing for divorce in procuring her willfully and corruptly to swear that she saw her husband, defendant in the action, in Reno, and at the time had no knowledge or information that he was coming there, etc., testimony tending to negative any prearrangement between the parties, was guilty of subornation of perjury, denounced by Rev. Laws, § 6350, despite section 22 of the act relating to marriage and divorce, since the willful and corrupt assertion of a falsehood in a matter important enough to affect the credibility of a witness whose testimony is material constitutes perjury.

2. Perjury 27-Information charging subornation not defective, though failing to allege testimony not true.

Information charging subornation of perjury against attorney for wife suing for divorce, in that he prescribed that the wife should willfully and corruptly give testimony tending to negative any prearrangement between herself and her husband, was not defective because failing to allege that the testimony concerning the grounds of divorce was not true, since the guilt of a person who has sworn corruptly does not depend on the truth or falsity of the fact immediately in issue, as perjury may be committed as to circumstances having a legitimate tendency to prove or disprove such fact.

Sanders, J., dissenting.

In the matter of the application of William H. Sheldon for a writ of habeas corpus. Writ dismissed.

entitled, "Viola Mae Weaver, Plaintiff, v. Floyd Wm. Weaver, Defendant," heretofore tried in said court, and in which a decree of divorce was granted to plaintiff.

The charging part of the "information" is as follows:

"That one Viola Mae Weaver, on the 24th day of March, 1919, at and in Reno township, county of Washoe, state of Nevada, having then and there taken an oath before the Second judicial district court of the state of Nevada, in and for said county of Washoe, Hon. Edward F. Lunsford, judge, presiding, that she would testify truly in said court in the case then and there at issue, to wit, the case of Viola Mae Weaver, Plaintiff, v. Floyd Wm. Weaver, Defendant, an action to recover a judgment granting to plaintiff a decree of divorce, said oath being and having been administered by S. W. Longabaugh, Exofficio deputy clerk of said Second judicial district

court of the state of Nevada, in and for said county of Washoe, who then and there had authority to administer such oath, did, in a matter material to such issue, she, the said Viola Mae Weaver, plaintiff therein, having taken such oath as aforesaid, willfully, corruptly, falsely, and feloniously, state, declare, and testify the truth to be, among other things, in substance and to the effect following, that is to say:

"That she, the said Viola Mae Weaver, saw the defendant in said action, Floyd Wm. Weaver, in Reno, Washoe county, Nevada, on the 19th day of March, 1919, as she was coming out from luncheon at the Golden Hotel, and that at said time and place she had no knowledge or information that the said Floyd Wm. Weaver was coming to Reno, Washoe county, Nev.; that at the time she, the said Viola Mae Weaver, came to Reno, Washoe county, Nev., she had no agreement, arrangement, or understanding with the said Floyd Wm. Weaver that he would come to Reno, Washoe county, Nev.; that there was no understanding or agreement entered into between her, the said Viola Mae Weaver, and the said Floyd Wm. Weaver that a divorce action would be filed

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

against him by her; and that she, the said "Every person having taken a lawful oath, Viola Mae Weaver, did not know before the 19th day of March, 1919, that it was possible, under the laws of the state of Nevada, to bring an action for divorce sooner than after a residence of six months.

or made affirmation in a judicial proceeding, or in any other matter where, by law, an oath or affirmation is required, who shall willfully and corruptly make an unqualified statement of that which he does not know to be true, or who shall swear or affirm willfully, corruptly and falsely, in a matter material to the issue or point in question, or who shall suborn any other person' to make such unqualified statement, or to swear or affirm, as aforesaid, shall be deemed guilty of perjury, or subornation of perjury, as the case may be."

[1] Petitioner alleges that he is entitled to his discharge because the information does not state facts sufficient to constitute a public offense. It is his contention in this regard that the matter assigned as perjury in the information was not material either to the substantial merits of the case or to the jurisdiction of the court, and that as it could not therefore be made the foundation of a perjury charge against the plaintiff in the divorce action, the charge of subornation or perjury against the petitioner necessarily falls.

"Whereas, all of said testimony was false, the said Viola Mae Weaver then and there well knowing such testimony to be false; that in truth and in fact, as said Viola Mae Weaver then and there well knew, the said Floyd Wm. Weaver came to the city of Reno, Washoe county, Nev., on the 19th day of March, 1919, for the express purpose of being served with process in said case of Viola Mae Weaver, Plaintiff, v. Floyd Wm. Weaver, Defendant, pursuant to an agreement theretofore entered into between the said Viola Mae Weaver and the said Floyd Wm. Weaver, and further knew, prior to his said arrival in Reno, Washoe county, Nev., that he was coming on said date for said purpose; that in truth and in fact, as said Viola Mae Weaver then and there also well knew, she the said Viola Mae Weaver, and the said Floyd Wm. Weaver, had an agrecment, arrangement, and understanding, theretofore entered into between them, that the said Floyd Wm. Weaver should come to Reno, Washoe county, Nevada; that in truth and in Section 22 of an act relating to marriage fact, as said Viola Mae Weaver then and there and divorce (Rev. Laws, § 5338) provides in also well knew, she, the said Viola Mae Weav-part that divorce from the bonds of matrier, and the said Floyd Wm. Weaver had an understanding and agreement, theretofore entered into between them, that a divorce action would be filed by the said Viola Mae Weaver against the said Floyd Wm. Weaver in Washoe county, Nevada; and that in truth and in fact, as said Viola Mae Weaver then and there also well knew, she, the said Viola Mae Weaver, did know, before the 19th day of March, 1919, that it was possible to bring an action for divorce in Washoe county, Nev., sooner than after a residence of six months.

"That the said William H. Sheldon, of the city of Reno, Washoe county, Nev., was then and there feloniously concerned in the commission of the said perjury by the said Viola Mae Weaver, in the manner and form aforesaid, and did then and there feloniously aid and abet her in the commission of the same in

the manner and form aforesaid, and did then and there corruptly, wickedly, maliciously, and feloniously command, induce, procure, solicit, suborn, instigate, and persuade the said Viola Mae Weaver the said willful and corrupt perjury in the manner and form aforesaid then and there feloniously to do and commit.

"And the said William H. Sheldon then and there well knew and intended that the said Viola Mae Weaver would and should so as aforesaid willfully, corruptly, falsely, and feloniously swear, state, declare, and testify, and well knew that the said matters, so as aforesaid by the said Viola Mae Weaver sworn to be true, were false, and were then and there known by the said Viola Mae Weaver to be false, and that the said Viola Mae Weaver, when she so as aforesaid swore, stated, de clared, and testified, did willfully, corruptly, falsely, and feloniously commit willful and corrupt perjury."

Section 6350 of the Revised Laws of Nevada, defining perjury and the subornation of

mony may be obtained by complaint made under oath in the district court of the county in which the defendant shall be found. In respect to this provision counsel for petitioner argues that the circumstances under which defendant was found and served with process in Washoe county, whether by prearrangement with the plaintiff or otherwise, are immaterial as touching the jurisdiction of the court, because the plaintiff's residence conferred jurisdiction; that the length of residence required in divorce actions is intended for the protection of the defendant, which, like any other personal privilege, he may waive by allowing himself to be found in the county wherein the action is commenced.

This question has been ably discussed by counsel for petitioner and also by counsel for the state, but we deem it unnecessary to determine the question, because the matter assigned as perjury in the information has such a bearing upon the merits of the case as to constitute corrupt and false swearing in a matter material to the issue. It had no direct bearing upon the main issue, but went to the credit of the plaintiff as a witness, and was therefore collaterally material to the real facts of the case.

The willful and corrupt assertion of a falsehood under oath in a matter important enough to shake the credit of a witness whose testimony is material, will constitute perjury.

Mr. Bishop in his work on Criminal Law lays down the rule to be that whatever goes to the credit of a witness is material, so that perjury may be founded upon it. Bishop's New Criminal Law, §§ 1032-1038.

Okl.)

ABLES v. STATE
(193 P.)

969

"Perjury may be assigned upon testimony | court to believe that the plaintiff and defendgoing to the credit of a material witness in a cause, although such evidence is legally inadmissible and ought not to be received."

In People v. Courtney, 94 N. Y. 490-494, the court said:

"The recent cases sustain the view that perjury may be assigned upon false testimony going to the credit of a witness."

In Wilson v. State, 115 Ga. 206, 208, 41 S. E. 696, 697, 90 Am. St. Rep. 104, 105, the court said:

"If he is called to testify to any material issue in the case, any matter relating to his credibility as a witness becomes collaterally material to the issue on trial; and being thus collaterally material, perjury may be assigned upon false testimony affecting the credibility of the witness."

ant were not acting in collusion as to any phase of the case; that they had no common interest in the result of the trial, and thereby to place greater credence in the plaintiff's testimony concerning the grounds of divorce. It therefore amounted to something more than that kind of trivial testimony which ordinarily will not sustain a perjury charge on account of its immateriality.

[2] There is no merit in the contention of counsel for the petitioner that the information is defective in this respect because it is not alleged therein that the testimony concerning the grounds of divorce was not true.

The guilt of a person who has sworn corruptly and falsely does not depend upon the truth or falsity of the fact immediately in The principal fact in issue may be issue. true, yet perjury may be committed as to circumstances which have a legitimate tendency Commonto prove or disprove such fact.

The rule is thus stated in 21 R. C. L. 259: "It is sufficient if it is material to any prop-wealth v. Grant, 116 Mass. 17; Mackin v. er matter of inquiry, and is calculated to prop or bolster the testimony of a witness in some material point, or to support or attack the credibility of such witness."

When the principle recognized by these authorities is applied to this particular case, the matter charged in the information as false becomes a sufficient predicate for perjury. Its bearing upon the main issue in point of criminality may be thus tested: If its falsity had been made known to the court during the trial of the case, could it have influenced the court on the issue before it? 21 R. C. L. 259. We answer in the affirmative. It might well have affected the credit of the plaintiff as a witness to the extent of causing the court to disregard all of her testimony.

People, 115 Ill. 312, 3 N. E. 222; State v. Wakefield, 73 Mo. 549. It is therefore of no consequence whether the grounds of divorce as testified to by plaintiff in the action actually existed or not. If the testimony upon which the assignment of false swearing is based was untrue, as charged in the information, the plaintiff is guilty of perjury for the reasons given.

We conclude that the information charges petitioner with the offense of subornation of perjury, and that he is not unlawfully restrained of his liberty. The writ is dismissed.

COLEMAN, C. J., concurs.
SANDERS, J., dissents.

(79 Okl. 282)

ABLES et al. v. STATE ex rel. SAYE. (No. 9769.)

(Syllabus by the Court.)

1. Officers 103-Permissive statute granting power imposes a positive and absolute duty.

It must be borne in mind that the testimony alleged to have been false, and suborned by the petitioner, was given in a divorce action in which the state in a sense, is a party to the proceedings. It is recogniz-| ed by all authorities that the public is vitally interested in preserving the integrity of the (Supreme Court of Oklahoma. Oct. 12, 1920.) marriage state because of its wholesome influence upon society. The court represents this interest of the state in divorce actions, and is in duty bound to scrutinize the testimony and proceedings with more care than in ordinary civil actions, to the end that collusion of the parties may not effect a dissolution of the marriage relation, when the real facts of the case, if known, would forbid it. The testimony of Mrs. Weaver as set out in the information, tending to negative any prearrangement between herself and husband, was, by this peculiar and important feature of the state's interest in the proceedings, entitled to more weight, as bearing upon her general credibility, than testimony of a similar nature would be accorded in ordinary civil actions. If false, it was a manufactured state of facts, clearly designed to induce the

Where power is granted in permissive language to public officers for the benefit of the public or of individuals, it is generally held that the intent of the Legislature, which is the true test, was not to devolve a mere discretion, but to impose a positive and absolute duty.

2. Bail 74(1)-Appearance and conviction of principal does not place him immediately in custody so as to discharge surety.

Where the principal on a criminal appearance bond, requiring the defendant to appear before the district court on the first day of the next term and there remain from day to

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

3. Bail 77 (2)—Forfeiture of bond by court not have sentenced the said R. L. Ables had having jurisdiction is conclusive.