bill was of a character to require to be verified by the oath of complainant or any other person, nor, therefore, that the oath was either required or authorized by the statute or the common law; 1 for, if the bill (which from the portion set out, would seem to have been one in reference to the diversion of a water-course) was one which did not ask for any preliminary injunction or other order to be based upon such verification, it did not require to be sworn to, and, if sworn to, the oath would be wholly extra-judicial, serving no purpose whatever, and perjury could not be assigned upon it.2 It is true, the information, after alleging that defendant was sworn and took his corporal oath before the notary "having sufficient and competent power and authority," etc., goes on to say "that the said Sherburn Gaige being so sworn as aforesaid, and being then and there lawfully required to declare and depose the truth in a proceeding in a court of justice, did, upon his oath aforesaid, concerning the matter contained in his said bill of complaint, then and there swear," etc., setting out the usual oath to a bill in chancery when any is required. But this general allegation of the defendant, being "lawfully required to declare and depose," etc., the oath not being taken upon a trial of a cause, is not sufficient; but the information should set forth the facts, or show enough of the nature of the proceedings and of the purposes for which the oath was taken or to be used, to show that the oath was either "required or authorized by law." This has always been the rule in cases of perjury, and can not safely be departed from. Had the information set forth the fact that this bill prayed for a preliminary injunction (as by the bill introduced in evidence subsequently, appeared to be the case), and that this oath was taken for the purpose of being used upon an application for the allowance of an injunction, or for the appointment of a receiver, etc., it would have shown that the oath was authorized, if not also required, by the law, and that it was, therefore, a judicial oath. For a like reason the information is defective in failing to show the materiality of the matter sworn to. It alleges, it is true, that "it then and there became a material question in said bill of complaint and in said judicial proceeding, whether the said Luther N. Tyler had any claim or title to said stream or water-course," etc.; and all the other allegations of materiality are in the same form. Now this form of alleging the materiality might be proper enough in a case where the information showed that the bill was of such a character that the allegations of the complainant were to be taken as evidence on the trial of a 1 See Comp. Laws of 1857, sec. 5821, the only section which could apply to such a case. 2 See People v. Fox, 25 Mich. 402. cause, but it is wholly insufficient, and variant from the truth, if the bill was not one whose allegations could be treated as evidence. The information fails to show that the bill was such as could be thus treated as evidence; and if, for the purpose of trying the rights of the parties, the bill would have been equally good without the oath, then the oath could only be required or become material upon an application for an injunction, or order for appointment of a receiver, or some other motion to be based upon it; and its materiality should have been alleged in reference to the question of granting such injunction or other order. In such a case it could not be material to the cause itself. The bill to which the alleged false oath was taken, when introduced in evidence, did not seem to cure the defects in the information. It was a bill alleging the complainant's right to a water-course, its diversion, and further threatened diversion of such water-course by the defendant named in the bill; and though it prays for a preliminary injunction, pending the litigation (as well as a perpetual injunction as the result of the litigation), it shows clearly that the bill was not required to be sworn to for any other purpose than that of obtaining the preliminary injunction, and that the oath was wholly immaterial and extra-judicial for any other purpose. It, therefore, shows clearly that the information was not adapted to the case; and the evidence showing its materiality upon the question of issuing an injunction does not show that it was material to the cause itself (which is the fair meaning of the allegation in the information), and without anything in the information to show that the bill prayed for an injunction, or that the affidavit was made, or intended to be used for that purpose, the evidence that there was such a prayer in the bill, and that the oath was taken and intended to be, or was, used for that purpose, does not help the case. Such a defect in the information can not be cured by the proof. It must, therefore, be certified to the Circuit Court for the County of Hillsdale, that the information is fatally defective, that no conviction can be had upon it, that the verdict should be set aside and the defendant discharged. The other justices concurred. PERJURY-OFFICER ADMINISTERING OATH MUST HAVE AUTHORITY. LAMBERT V. PEOPLE. [76 N. Y. 220; 32 Am. Rep. 293.] In the New York Court of Appeals, 1879. Perjury Can Not be Predicated of an affidavit sworn before a notary public professing to act in the city of New York but who was a non-resident of the State at that time of his appointment. Conviction of perjury. The opinion states the case. The notary before whom Benj. K. Phelps, for defendant in error. the affidavit was taken was an officer de jure, and an offer to show that he was a non-resident at the time of his appointment could not be received. The notary being an officer de facto holding under appointment by authority his acts were valid as to the public, and all third persons, except in a proceeding to try his title to the office.2 MILLER, J. (Omitting other points.) Upon the trial the counsel for the prisoner offered evidence for the purpose of showing that the notary before whom the affidavit was taken, at the date of the same was and for eighteen months previously had been a resident of the State of New Jersey and that his family resided there. The affidavit bore date upon the 12th day of March, 1877, and the indictment averred that he was then a notary public of the city and county of New York, "having full, competent and lawful authority to administer the said oath." The testimony for the prosecution showed that the notary had an office in the city of New York and that he had acted as notary for some years. It was also proved by the equity clerk of the Supreme Court who produced a book from the county clerk's office that it contained a list of the notaries and time of their appointment, qualification, etc., and the date of the appointment of the notary who took the oath was stated to be upon the 10th of March, 1876, and also that his term would expire upon the 30th day of March, 1878. The testimony offered by the prisoner's counsel would establish that at the time when the notary was appointed and ever since then, he was a resident of the State of 1 Read v. City of Buffalo, 3 Keyes, 447. 2 Wilcox v. Smith, 5 Wend. 233; People v. Collins, 7 Johns. 549; McInstry v. Tanner, 9 Id. 139; Albertson's Case, 8 How. Pr. 363; People v. White, 24 Wend. 520; People v. Stevens, 5 Hill, 630; Greenleaf v. Low, 4 Den. 168; People v. Hopson, 1 Id. 579; Thompson v. State, 21 Ala. 53; State v. Carroll, 38 Conn. 449; People v. Cook, 8 N. Y. 67; State v. Has call, 6 N. H. 352; 2 C. & H. 1101; Van Steenburgh v. Kortz, 10 Johns. 167; Howard v. Sexton, 1 Den. 440. New Jersey. According to the statutes of this State no person is capable of holding a civil office who, at the time of his appointment, is not a citizen of the State.1 It was a material and important fact for the prosecution to establish, that the oath was legally administered and the authority and jurisdiction of the officer before whom it was taken, which had been shown prima facie by the evidence referred to. The question presented is whether proof of the facts offered was admissible, for the purpose of showing that the person claiming to act as notary was not a legally appointed officer and therefore his act was void and without jurisdiction. The effect of the testimony offered would have been to assail the authority of the officer who administered the oath. The rule is well settled that the acts of an officer de facto are valid as respects the public and the rights of third persons and it is not allowable to assail the title of such officer in a collateral proceeding.3 4 In People v. Cook, it is said in the opinion that "a challenged voter, swearing falsely before a de facto board of inspectors, is as much liable to punishment under the statute as if the oath had been administered by inspectors de jure." While this may be a sound rule of law, it does not affect the question now considered, for the reason that the inspectors, in such a case may be lawfully appointed or elected; and the failing to take the oath is at most an irregularity or defect, which can not affect the legality of their election as inspectors in the first instance. This is clearly distinguishable from a case where there is an entire want of power to make the appointment. The question here affects the origin of the appointment and the right to hold the office by virtue thereof and is not merely an irregularity occasioned by a failure of the officer to take the oath required by law. There is a wide and marked difference between the right to act at all and the failure to comply with some statutory requirement, in assuming power conferred by an appointment to discharge the duties of an official position. So, also, in Howard v. Sexton,5 where it was held that parties to a submission to arbitration may waive the oath of the arbitrators and that witnesses whose oath is thus waived, may commit perjury by falsely swearing upon such arbitration; the question as to the original authority and jurisdiction of the court and its power to act did not arise. In none of the cases cited was the distinct question presented which we are now called upon to determine. Nor does either of them relate to any question arising upon an indictment for perjury where jurisdiction is the essential feature; and the utmost extent to which any of the 11 Rev. Stats. p. 414, sec. 1. 2 3 Rev. Stats. (6th ed.), p. 955, sec. 1. 3 Read v. City of Buffalo, 3 Keyes, 447; McInstry v. Tanner, 9 Johns. 134; People v. Stevens, 5 Hill, 616, 634; Greenleaf v. Low, 4 4 Supra. authorities cited have gone in cases of perjury is that proof that the officer acted as such is only prima facie evidence of his authority. Conceding the correctness of the rule, upheld in the cases cited, and that such rule is most generally applicable, I am of the opinion that it can not be invoked where an indictment is found for perjury and the foundation of the charge rests entirely upon the competency or the jurisdiction of the officer or tribunal before which the oath is taken. This is one of the issues presented by the indictment in this case, and upon principle it would seem to be quite obvious that the accused party had a right to show that there was no such officer or tribunal in existence as is alleged in the indictment. Such a rule only operates in cases where a charge of perjury is preferred while the acts of an officer de facto acting under color of authority, even if he had been illegally appointed, under ordinary circumstances would not be affected or impaired. No pernicious consequences or serious inconvenience would result to the public at large by the enforcement of such a principle, as all acknowledgments made or other acts of a notary public, or of any other officer de facto done while in the performance of his duties, except in cases where false swearing was directly charged, would be valid and lawful. The argument of ab inconvenienti, therefore, has no application, and should not influence the decision of the question considered, even if it could properly be urged, to affect the disposition of a grave criminal charge under any circumstances. The principle stated is, we think, also upheld by sufficient authority. In Rex v. Verelst,1 an indictment was found for perjury committed before one acting as surrogate in the ecclesiastical court, in making oath to an answer in a cause there pending for a divorce. The surrogate having acted in that capacity, it was held that it was prima facie evidence of his appointment, and that he had authority to administer the oath. It appeared, however, from the registrar's book containing the appointment that it was irregularly made, for the reason that instead of being authenticated in the usual manner, no notary public, nor the registrar, nor his deputy had been present at the time, for the purpose of authenticating the act, according to the rule of the ancient common law; and it was claimed that the appointment was a nullity. In opposition to this view, it was contended by the prosecution that the officer appointed having acted for over twenty years in the capacity of surrogate, a judge and a jury at nisi prius ought not to inquire into the manner of his appointment; and even if they did, they might presume that an officer was present, from the entry and the appointment might be regular, although the entry was deficient. Lord Ellenborough held 13 Camp. 432. |