¶1delivered the opinion of the court.
¶2The court is of opinion that to convict the prisoner, the alleged false statement must have been material in the judicial proceeding.
¶3The proceeding was a summons of garnishment to subject to the lien of & fieri facias a debt owing to the prisoner by the garnishee. The prisoner was a married man, householder and head of a family. The debt attempted to be garnisheed was due him for wages as a laboring man, and did not exceed fifty dollars per month. The Commonwealth introduced a writing' purporting to be signed by the prisoner, waiving all exemptions, including his claim as laborer. Prisoner testified on his own behalf, and denied that he had signed the said writing. This is the alleged false oath. The matter was not material to the proceeding, because the statute is explicit that a fieri facias shall not be a lien on such a claim. Code of 1873, p. 1179, ch. 184, § 3.
¶4A case is cited in Eoscoe’s Criminal Evidence, 6th American from 6th London edition, p. 760, which is strikingly applicable to this case. It is as follows: “ In answer to a bill filed against the defendant for the specific performance of an agreement relating to the purchase of land, the defendant had relied on the statute of frauds (the agreement not being in writing), and had also denied having entered into any such agreement, and upon this denial in his answer he was indicted for perjury; but Abbott C., J., held that the denial of an agreement which by the statute was not binding upon the parties, was wholly immaterial, and the defendant was acquitted.”
¶5*924The question in the proceeding of garnishment, in the case at bar, was, whether the fi. fa. was a lien upon the-claim due the prisoner from the garnishee. The statute, ch. 184, § 3, Code of 1873, declares that every writ of fieri facias hereafter issued, shall be a lien from the time it is. delivered to a sheriff or other officer to be executed, upon all the personal estate of the debtor, although not levied on, nor capable of being levied on, except in the case of a husband or parent, such things as are exempt from distressor levy by the 33d and 34th sections of chap. 49 (which is known as the poor debtor’s law), and also wages due to a. laboring man, being a householder or head of a family, not exceeding fifty dollars a month, &c.
¶6It was entirely immaterial, consequently, whether he signed the paper or not, as no waiver by him could create a lien, when the law declared there should be none, and the proceeding in which it is alleged he swore falsely, was to enforce the supposed lien of the fi. fa., and was the ground upon which it rested.
¶7The court is of opinion, therefore, that the second and third instructions tendered by the prisoner, which were rejected by the court, ought to have been given to the jury, and that the verdict of the jury is clearly contrary to law, and ought to have been set aside and a new trial awarded the prisoner. We deem it unnecessary to notice the other points made by prisoner’s counsel. The court is of opinion, therefore, to reverse the judgment of the court below, and to remand for further proceedings to be had therein in conformity with this opinion.
¶8Judgment reversed.