Opinion of the Court-Coleman, C. J.

incurred after his duties as administrator had ceased? But the section has reference to matters in which the estate is interested. This is his personal matter. The undertaking of his sureties is that he shall faithfully perform the duties of his office. How can he be said to be discharging official duty in appealing from an order relieving him from such duty? It is true, the legislature has the power to provide for obligations not mentioned in the bond, or entirely outside of its apparent scope, and one becoming surety after the law has been enacted will be bound accordingly, for he will be presumed to know of the law; but this is a harsh rule, and the legislature will not be presumed to have intended such consequence, unless the intent is clear. Here the intendments are all the other way. We think the appeal should be dismissed."

In the case of Knight v. Hamaker, 33 Or. 154, 54 Pac. 277, wherein Hamaker sought to appeal from an order removing him as administrator of an estate, upon consideration of a motion to dismiss his appeal, the court used the following language:

"In our opinion, the motion of Miller must be allowed. An administrator derives his authority to act exclusively from the appointment of the county court, and when such authority is withdrawn or revoked his power to act for the estate must necessarily cease. He is but the manager of an estate under the orders of the court, and the provisions of the statute, and his authority is derived solely from that source. When it is revoked he has no right to longer participate therein, or to control any of the proceedings in which it is interested. And as it is clear that a party cannot prosecute an appeal from a judgment unless he is in some way aggrieved by it, either personally or in some representative capacity, it necessarily follows that when Hamaker was removed as administrator, and Miller appointed in his place, the right to control further proceedings on the appeal vested in Miller, as the representative of the estate; and, if he does not desire to proceed any further in the matter,

Opinion of the Court-Coleman, C. J.

Hamaker ought not to be heard to object. The motion of Miller to dismiss the appeal is therefore sustained."

*

3. But our attention is called to section 5358 of Revised Laws, which provides that "no appeal shall be dismissed for insufficiency of the notice of appeal or undertaking thereon, * *" and it is said that Scott. should be permitted to perfect an appeal in his individual capacity. Suffice it to say that the notice of appeal and undertaking on appeal are in every respect regular and sufficient. No objection is made to the undertaking on the ground that it is insufficient. It is admitted that both the notice and the bond are regular and sufficient, but it is contended that, being for the purpose of enabling Scott to perfect an appeal in his representative capacity, which he has no right to prosecute, the appeal should be dismissed. The statute referred to does not, nor was it intended to, meet the situation here presented.

For the reasons given, it is ordered that the appeal be dismissed.

ON PETITION FOR REHEARING

Per Curiam:

Rehearing denied.

Opinion of the Court

[No. 2484]

IN THE MATTER OF THE APPLICATION OF JAMES
DOLAN FOR A WRIT OF HABEAS CORPUS.

[193 Pac. 854]

1. CRIMINAL LAW-JUSTICE OF THE PEACE WITHOUT JURISDICTION OVER VIOLATION OF PROHIBITION STATUTES.

A justice of the peace is without jurisdiction to try one accused of violating the prohibition statute and to impose a sentence of fine or imprisonment.

ORIGINAL APPLICATION by James Dolan for a writ of habeas corpus to secure his discharge from custody. Petitioner discharged.

Platt & Sanford, for Petitioner.

L. B. Fowler, Attorney-General, for Respondent.

Per Curiam:

This is an original proceeding in habeas corpus to procure the discharge of petitioner from the custody of the sheriff of Lyon County, Nevada.

The petitioner alleges that on the 21st day of September, 1920, a complaint was filed with the justice of the peace of Mason township, Lyon County, Nevada, charging that on said 21st day of September the petitioner, in said county, did keep, store, and manufacture for barter and sale intoxicating liquors; that a warrant was thereafter issued for the arrest of the petitioner; and that he was arrested and brought into court and entered to said complaint a plea of guilty, upon which plea he was adjudged guilty and sentenced to pay a fine. and to serve a sentence of six months in the county jail. Upon said sentence, petitioner was committed to the custody of the sheriff of said county, from which he seeks to be discharged, upon the ground that the said justice of the peace had no jurisdiction to enter a judgment in said matter.

To the petition the attorney-general has filed an answer, wherein it is admitted that the said justice of

Points decided

the peace was without jurisdiction to enter a judgment in said criminal proceeding or to issue a commitment thereupon.

The justice of the peace was clearly without jurisdiction to enter any judgment whatever in said case, assessing a fine against petitioner or sentencing him to serve a term in the county jail. Ex Parte Arascada, 44 Nev. 30; 189 Pac. 619; In Re Cecchettini, 44 Nev. 41, 189 Pac. 624.

It is ordered that the petitioner be discharged.

[No. 2453]

IN THE MATTER OF THE APPLICATION OF WILLIAM H. SHELDON, FOR A WRIT OF HABEAS CORPUS.

[193 Pac. 967]

1. PERJURY-ATTORNEY GUILTY OF SUBORNATION OF PERJURY IN INDUCING CLIENT SUING FOR DIVORCE TO SWEAR FALSELY.

The act of the attorney for a wife suing for divorce in procuring her wilfully and corruptly to swear that she saw her husband, defendant in the action, in Reno, and at the time had no knowledge or information that he was coming there, etc., testimony tending to negative any prearrangement between the parties, was guilty of subornation of perjury, denounced by Rev. Laws, 6350, despite section 22 of the act relating to marriage and divorce, since the wilful and corrupt assertion of a falsehood in a matter important enough to affect the credibility of a witness whose testimony is material constitutes perjury.

2. PERJURY--INFORMATION CHARGING SUBORNATION NOT DEFECTIVE, THOUGH FAILING TO ALLEGE TESTIMONY NOT TRUE.

Information charging subornation of perjury against attorney for wife suing for divorce, in that he prescribed that the wife should wilfully and corruptly give testimony tending to negative any prearrangement between herself and her husband, was not defective because failing to allege that the testimony concerning the grounds of divorce was not true, since the guilt of a person who has sworn corruptly does not depend on the truth or falsity of the fact immediately in issue, as perjury may be committed as to circumstances having a legitimate tendency to prove or disprove such fact.

SANDERS, J., dissenting.

ORIGINAL APPLICATION of William H. Sheldon for a writ of habeas corpus. Writ dismissed.

Argument for Respondent

Augustus Tilden, for Petitioner:

The questions propounded to the plaintiff in the divorce action were gratuitous to the last degree. The oath administered to her, so far as it went to the jurisdictional question here involved, was administered in an inquiry not authorized by law. Her testimony was immaterial and her oath was immaterial. "To constitute the crime of perjury, the false oath must not only be as to material facts, but it must also in itself be material." 20 Cyc. 1421. "The facts sworn to may be material, and yet the false swearing be no perjury because the oath performed no office in the case, and was wholly unimportant and immaterial." Beecher v. Anderson, 8 N. W. 539. "If the facts are stated, and it clearly appears that the testimony was not material, a formal allegation of materiality will not save the indictment." 30 Cyc. 1436. The oath must have been administered "in a matter where an oath was authorized or required by law." 30 Cyc. 1443. "The fact that the testimony was received is not, standing alone, sufficient." 30 Cyc. 1451.

L. D. Summerfield, District Attorney, and W. M. Kearney, Assistant District Attorney, for Respondent:

The petitioner should be remanded. The information states a public offense. The testimony given in the divorce action was material to the issue, as both bearing upon the case in chief, and because under the divorce statute the word "found" means to be found without collusion or agreement, and is a matter of proof and one of the issues in the case itself. Tiedemann v. Tiedemann, 36 Nev. 494; Merritt v. Merritt, 40 Nev. 385.

It is only necessary to allege and prove that certain facts testified to were false, and that they were material to the issue. It is not necessary that such facts were believed by the court, or that they affected its decision in any way. 30 Cyc. 1419; Mackin v. People, 115 Ill. 312; State v. Schill, 27 Iowa, 263; State v. Wakefield, 73 Mo. 549; State v. Smith, 137 N. W. 295; Harris v.