United States v. Britton. any offense at common law. They have no settled technical meaning like the word "embezzle," as used in the statutes, of the words "steal, take and carry away," as used at common law. They do not therefore of themselves fully and clearly set forth every element of the offense charged. It would not be sufficient simply to aver that the defendant "willfully misapplied" the funds of the association. This is well settled by the authorities we have already cited. There must be averments to show how the application was made and that it was an unlawful one. These averments the pleader has in these counts attempted to make by charging that the defendant paid out the funds of the association in the purchase of its own stock. But this is not necessarily an unlawful use of the funds of the association. It is not every purchase of its own shares by an association that is forbidden. The very section (5201) and sentence of the statute which declares that no banking association shall be a purchaser of its own shares, contains the exception "unless such purchase shall be necessary to prevent loss upon a debt previously contracted in good faith." This exception should have been negatived in these counts. The rule of pleading as laid down by Mr. Chitty, is that "when a statute contains provisos and exceptions in distinct clauses it is not necessary to state in the indictment that the defendant does not come within the exceptions or to negative the provisos it contains. On the contrary, if the exceptions themselves are stated in the enacting clause it will be necessary to negative them in order that the description of the crime may in all respects correspond with the statute." 1 Chit. Crim. Law, *283, *284. Thus where a statute declared that if one on the Sabbath day "shall exercise any secular labor, business or employment, except such only as works of necessity and charity, he shall be punished," etc., a negative of the exception was held indispensable. State v. Barker, 18 Vt. 195. See also Com. v. Maxwell, 2 Pick. 139; 1 East, 167; Spieres v. Parker, 1 T. R. 141; Gill v. Scrivens, 7 id. 27; 1 Bish. Crim. Proc., § 636. The failure of the counts under consideration to aver that the purchase of the shares of the association was not necessary to prevent loss upon a debt previously contracted in good faith is a United States v. Curtis. fatal defect. These counts merely charge that the defendant willfully misapplied the funds of the association, and then aver a use of the funds, which, from all that appears to the contrary, was a perfectly lawful application of them. The result is that no offense is described in the counts numbered from thirty-seven to fifty-six, inclusive, and that they are therefore insufficient and bad. It also follows that counts numbered from fifty-seven to seventy-six, inclusive, which are similar to the series just mentioned, except that they contain no charge of intent to injure and defraud, are also bad. What we have said disposes of all the questions propounded to us which it is necessary that we should answer. We answer the first, second, seventh and ninth questions in the affirmative, and the fifth, sixth and eighth questions in the negative. From these answers it appears that all the counts from the thirty-seventh to the one hundred and eighteenth inclusive, are insufficient and bad. We therefore decline to answer the third and fourth questions, which relate to the same counts. U. S. v. Buzzo, 18 Wall. 125. UNITED STATES V. CURTIS. (107 U. S. 671.) Criminal law - indictment — false affidavit — oath — notary. Before the passage of the act of February 26, 1881, notaries public in the several States had no authority to administer to officers of National banking associations the oath required by section 5211, Revised Statutes, and an indictment against an officer of a National bank under section 5292 for a willfully false declaration or statement in a report made under section 5211, so verified, would not lie. Asst. Atty.-Gen. Maury, for United States. Chester H. Krum, for. Curtis. United States v. Curtis. HARLAN, J. This case comes before us on a certificate of division as to certain questions of law arising in a criminal prosecution against Edward P. Curtis, based upon sections 5211 and 5392 of the Revised Statutes of the United States. The first of those sections provides that every National banking association "shall make to the Comptroller of the Currency not less than five reports during each year, according to the form which may be prescribed by him, verified by the oath or affirmation of the president or cashier of such association, and attested by the signatures of at least three of the directors. Each such report shall exhibit in detail, and under appropriate heads, the resources and liabilities of the association at the close of business on any past day by him specified; and shall be transmitted to the Comptroller within five days after the receipt of a request or requisition therefor from him, and in the same form in which it is made to the Comptroller shall be published in a newspaper where such association is established," etc. Section 5392 provides that "every person who, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall be punished by a fine of not more than $2,000, and by imprisonment at hard labor not more than five years; and shall, moreover, thereafter be incapable of giving testimony in any court of the United States until such time as the judgment against him is reversed." The willfully false declarations or statements which the defendant is charged to have made are contained in several written reports transmitted to the Comptroller of Currency by the National Bank of the State of Missouri, in St. Louis, in pursuance of section 5211, and to the truth of which declarations or statements, Curtis, as cashier of that bank, made oath before a notary public within and for the county of St. Louis, in that State. These declarations or statements relate to the condition of the bank as to loans, discounts, checks, cash items, overdrafts, indi United States v. Curtis. vidual deposits subject to checks, surplus fund, currency on deposit, and money due from that association to other National banks. The indictment contains five counts, which, as respects any matter now to be determined, do not substantially differ, except as to the several dates when the alleged oaths were taken. Those dates were July 18 and October 10, 1876, and January 15, January 26, and April 5, 1877. The controlling question is as to the authority of the notary to administer the oaths, upon the falsity of which the indictment is laid. It is fundamental in the law of criminal procedure that an oath before one who has no legal authority to administer oaths of a public nature, or before one who, although authorized to administer some kind of oaths, but not the one which is brought in question, cannot amount to perjury at common law, or subject the party taking it to presecution for the statutory offense of willfully false swearing. 1 Hawk. P. C., book 1, chap. 69, 321, § 4, p. 430 (8th Ed. by Curwood); Roscoe Crim Ev. (7th Am. Ed.) 817; 2 Whart. Crim. Law, § 1256; 2 Archb. Crim. Pr. & Pl. (8th Ed.) 1722. If therefore Curtis, at the time the several oaths alleged to be false were taken, was not authorized by the laws of the United States to take them before a notary public, he cannot be proceeded against under section 5392. The statute, in conformity with an established rule of criminal law, expressly declares that the oath must be taken before some 66 competent tribunal, officer, or person." This does not necessarily mean that the tribunal by which the oath is administered shall have been created by the government which required it to be taken, nor that the officer who administers it shall be an officer of that government. But the statute does mean that the oath must be permitted or required, by at least the laws of the United States, and be administered by some tribunal, officer, or person authorized by such laws to administer oaths in respect of the particular matters to which it relates. So that the underlying question is whether the notary public, whose commission is from the State, was, at the respective dates of the oaths taken by Curtis, authorized by the laws of the United States to administer such oaths. This question we are constrained to answer in the negative. United States v. Curtis. We are not aware of any act of Congress which gave such anthority to notaries public in the different States at the several dates given in the indictment. The assistant attorney-general insists that such authority may be found in section 1778 of the Revised Statutes, which declares: "In all cases in which, under the laws of the United States, oaths or acknowledgments may now be taken or made before any justice of the peace of any State or Territory, or in the District of Columbia, they may also be taken or made by or before any notary public duly appointed in any State, district, or territory, or any of the commissioners of the Circuit Courts, and, when certified under the hand and official seal of such notary or commissioner, shall have the same force and effect as if taken or made by or before such justice of the peace." The authority of the notary to administer these oaths to Curtis cannot be derived from that section unless, at the dates in question they could, under the laws of the United States, have been taken before justices of the peace in Missouri. But the latter officers had no such authority by any Federal statute to which our attention has been called, or which we are able to find. Section 1778, so far as notaries public are concerned, embodies the substance of similar provisions in the acts of September 16, 1850 (9 Stat. 458), July 29, 1854 (10 Stat. 315, § 1), and June 22, 1874 (18 Stat. 186, § 20). But nothing in these acts, even if they remained in force after the adoption of the Revised Statutes, supports the authority exercised by the notary public who adminis tered these oaths to defendant. Counsel for the United States further insists that a proper construction of section 1778 will authorize a notary public in any State to administer oaths to officers of National banking associations when making reports to the Comptroller of the Currency, if justices of the peace may lawfully do so in this district. But in our judgment no such interpretation of that provision is admissible. What Congress intended by that section was to give notaries public in their respective States the same authority in the administration of oaths as are given under the laws of the United States to justices of the peace in the same States, and to notaries public in this district the same authority in administering oaths which, under the laws of the United States, might be exercised by justices of the peace in this district. We have seen however that |