¶1The affidavit administered by the justice of the peace in this case, as a foundation for obtaining the writ of habeas corpus, was within the scope of the powers of a justice of the peace; and had the matter alleged to have been falsely sworn been material to the obtainment of the writ of habeas corpus, the defendant below might with propriety have been convicted. We are clearly of the opinion, however, that the oath, which it is said is false, was of a matter wholly immaterial to the end contemplated, and not calculated in any degree either to forward or retard the application. It is sufficient for one in custody to make affidavit that he is illegally so detained, and he is entitled, as a matter of right, to the issuance of a writ of habeas corpus. Whatever else he may state in his affidavit, by way of inducement, though it be false, cannot be made the foundation of a conviction for perjury.
¶2Let the indictment be quashed and the prisoner discharged.