Page:Federal Reporter, 1st Series, Volume 4.djvu/378

|36e FEDEEAL EBPOBTEE- �by lier oath unless she could show, to the satisfaction of the jury, that she had not wilfuUy made a false oath in the first instance. This is ail that the cases cited mean, in my opin- ion, a-nd ail else that is claimed for them is based upon an inference drawn from the use of the word "estoppel." I have found none, and doubt if any cases elsewhere will support the doctrine that a man is ever bound by a false oath so that he cannot show the truth as between himself ànd others who are strangers, and have been neither injured nor prejudiced by the original f alsehood. �The genoral rule elsewhere is not in accordance with the Tennessee cases. 1 Greenl. Ev. §§ 210-212. But in the charge I gave to the jury I have followed the cases strictlyin ail except calling the principle enunciated an estoppel. It is immateidal by which name it is called, perhapSj, but more was sought to be implied, fçopa the word than the cases them.- selves justified, andit seemed to me necessary to. diso.ard it as misleading. In, vie^^ of what was actually said to the jury on the Bubject, it seems to me that no error was committed of whic.h: the defendant can complain. : �Thç factthat the jury were told that they could not lookto the proof at large unless they acquitted the plaintiff of any intentional and wilful false swearing, it is argued, called for a trial as if upon an indictment for perjury, and the jury were led to believe that they would, by finding against her. substantially fasten upon her the odium of perjury or false swearing, and were thereby led to prejudice the defendant's case by giving more effect to the plaintiff 's proof than they should have done, and less to that of the defendant than they would have done if they had been told that they must simply determine whether she had made the oath deliberately and> with full knowledge of the facts, or under circumstances showing that she made it inadvertently or by mistake. �There is much force in this objection to the charge, and it illustrates the inconvenience of applying the analogy of estop- pel to the mere process of weighing testimony. The cases cited ail show that there is a preliminary question to be tried, namely, whether there was an innocent mistake made. It is ����