delivered the opinion of the court.

The indictment is fatally defective, because it does not appear, either by direct averment or by anything stated in the indictment, that the statement upon which the perjury is assigned was material to the matter before the court. o

For all that appears upon the face of the indictment, the statement alleged to have been false may have been totally immaterial to the matter in controversy. Arch. Cr. Pl. 429 ; 2 Russell on Cr. 639. Neither of the precedents referred to on the argument support this indictment.

It is in all cases a matter of discretion whether the court will quash an indictment; but where it is manifest that no judgment can be rendered upon the indictment, the motion ' to quash will be allowed. State v. Dayton,. 3 Zab. 53.

Let the indictment be quashed.