a grand juror was competent to swear a witness; but it is clear that the clerk of the assizes, or any third person, is admissible for that purpose. In most States the practice is for the foreman of the grand jury, or one of the members, to ad minister the oath.2 Grand jury may administer oath. But other § 1262. The officer who administers the oath must have legal power to administer the oath in the particular process.3 Thus a man cannot be indicted for perjury in swearing wise of unbefore a justice to his attendance in court as a witness, authorized when the clerk only is authorized to administer such oath.1 officer. Officer act § 1263. It is held to be sufficient prima facie, that the person by whom the oath is administered was an acting magistrate, and the evidence of the officer himself may be received to prove this. When such a case is presented by the prosecution, it may be rebutted by proof on part 56; Thomas r. Com., 2 Rob. (Va.) 795; Com. v. Pickering, 8 Grat. 628; State v. Wakefield, 73 Mo. 549. See State v. Offutt, 4 Blackf. 355; People v. Young, 31 Cal. 563; St. Clair v. State, 11 Tex. Ap. 297; Whart. Cr. Pl. & Pr. §§ 378 et seq. 1 R. v. Hughes, 1 C. & K. 519. 2 See Whart. Cr. Pl. & Pr. § 358 a; People v. Young, 31 Cal. 563; State v. Green, 24 Ark. 591. 3 R. v. Stone, Dears. 251; R. v. Hanks, 3 C. & P. 419; U. S. v. Curtis, 107 U. S. 671; State v. Clark, 2 Tyler, 277; State v. Jackson, 36 Ohio St. 281; Staight v. State, 39 Ibid. 497; Lamden v. State, 5 Humph. 83. State v. Wyatt, 2 Hayw. 56. But see supra, § 1257. 5 R. v. Roberts, 38 L. T. (N. S.) 690; State v. Hascall, 6 N. H. 352. See infra, § 1315; Whart. Cr. Ev. §§ 164, 835. In R. v. Roberts, 38 L. T. 690, an indictment for perjury alleged the offence to have been committed before J. U., ing as such prima facie compe tent. then being and sitting as the duly qualified and appointed deputy judge of the county court of W. Proof was given that the perjury took place in the presence of J. U., at the county court, and a certified minute, under the seal of the court, of the proceedings, was put in evidence, entitled, "Minute of judgments, orders, and other proceedings, at a court holden at, etc., before J. U., deputy judge of the said court." It was ruled on a case reserved that there was sufficient proof of J. U. acting as deputy judge, and therefore prima facie evidence of his appointment as such. Lord Coleridge, C. J., said : "I am of opinion that the conviction should be affirmed. One of the best recognized principles of law, Omnia praesumuntur esse rite et solemniter acta donec probetur in contrarium, is applicable to public officers acting in discharge of public duties. The mere acting in a public capacity is sufficient primâ facie People v. Phelps, 5 Wend. 10; State v. Clark, 2 Tyler, 277. Trials of the defendant that the officer was not competent to act. for perjury, in this respect, differ from that class of cases in which it is sufficient to prove that an officer whose action is assailed had a de facto right. No de facto title by the officer administering the oath will sustain an indictment for perjury. But perjury may be assigned on an oath erroneously taken, while the proceedings in which it was taken remain unreversed. And an oath administered proof of the proper appointment; but it is only a primâ facie presumption, and it is capable of being rebutted, and in the case of Rex v. Verelst that presumption was rebutted in fact, and the person who there had acted as surrogate for twenty years was proved to have been improperly appointed. The case of Rex v. Verelst, 3 Camp. 433, is exceedingly like this; there the fact of Dr. Parson having acted as surrogate was held by Lord Ellenborough, C. J., to be sufficient prima facie evidence that he was duly appointed, and had competent authority to administer an oath, and for that proposition Rex v. Verelst was referred to as good law by Lord Campbell, C. J., in Wolton v. Gavin, 16 Q. B. 48. But it was further shown in Rex v. Verelst that Dr. Parson had never been regularly appointed as surrogate, and Lord Ellenborough then held that the evidence that Dr. Parson was not duly appointed a surrogate could not be shut out, however long he might have acted in that capacity, and that the presumption arising from his acting only stood until the contrary was proved. That is an instructive case, as showing the true rule as to the prima facie presumption in such cases. It is laid down in all the text-books as a recognized principle, that a person acting in the capacity of a public officer is primâ facie to be taken to be so, and that principle was adopted by Patteson, J., in Doe dem. Bowley v. Barnes, 8 Q. B. 1043. In that case there was a demise by the churchwardens and overseers of some parish property, and the fact that they acted as churchwardens and overseers at the time of the demise was held to be sufficient prima facie proof for the purpose of an action of ejectment without proving their appointment." He then referred to the decision of Tindal, C. J., to the same effect, in R. v. Newton, Car. & Kir. 469, and to R. v. Jones, 2 Camp. 131; and added: "This ob jection, if it were good, would extend very widely, for, suppose perjury committed on the first time of acting in his office before a judge or a recorder or county court judge, or any person who fills a responsible public position, would it lie on the prosecution to show the appointment of such an officer in the strictest possible way? Mr. Jelf has not satisfied me that it would, and no member of the court has any doubt that there is no ground for such a contention." See infra, § 1315. 1 Lambert v. People, 76 N. Y. 220. Supra, § 1246. 2 R. v. Verelst, ut sup. ; R. v. Roberts, ut sup.; R. v. Newton, 1 C. & K. 469; State v. Hascall, N. H. 352; Staight v. State, 39 Ohio St. 497; Muir v. State, 8 Blackf. 154; Biggerstaff v. Com., 11 Bush, 169. Infra, § 1315. See People v. Phelps, 5 Wend. 10; State v. Clark, 2 Tyler, 277. 3 Van Steenburgh v. Kortz, 10 Johns. 167. Infra, § 1273. by an officer (though incompetent) in presence of the court, is regarded as administered by the court.1 Perjury not extra ally pun territori § 1264. According to English and American law, one State has no jurisdiction of perjury committed in another State, against the authority of such other State; nor does it make any difference that such perjury was committed in an affidavit taken before a judge of the prosecuting State at the time sojourning in the foreign State, such judge not being authorized so to act by the prosecuting State. There are, however, exceptions to this rule : ishable. Perjury before consuls, etc., abroad, by statute, may be punished in the United States.1 Perjury before a commissioner to take testimony, though committed abroad, is punishable both in the State where the false oath is taken, and in the State from which the commission issues." But the authority of the commissioner is strictly limited by his commission; and if he transcend it, any oath administered by him is not the subject of prosecution in the State from which the commission issues.7 Fraudulent use of a false foreign affidavit, though the perjury itself is not cognizable, is indictable at common law.8 Whether a State court has jurisdiction of perjury in a federal procedure will be presently considered." under act § 1265. It has been held that if a state magistrate administer an oath under an act of Congress expressly giving this power State magto magistrates of his class, it is to be regarded as a lawful oath by one having competent authority; as much so as if he had been especially appointed a commissioner under a law of Congress for that purpose.10 The same 1 Warwick v. State, 25 Ohio St. 21; Stephens v. State, 1 Swan, 157. See infra, § 1313, for other cases. ? Musgrave v. Medex, 19 Ves. 652; Phillippi v. Bowen, 2 Barr, 20; Whart. Conf. of Laws, § 853. 3 Jackson v. Humphrey, 1 Johns. 498. See Wickoff v. Humphrey, Ibid. Supra, § 276; Whart. Conf. of Laws, § 873. Com v. Smith, 11 Allen, 243; see supra, §§ 279, 280, 284, 288 et seq., and VOL. II.-9 istrate of Conadminister gress may oath. see article on extra-territorial crime in Crim. Law Mag. for March, 1885. 6 Supra, §§ 276, 288; see Phillippi v. Bowen, 2 Barr, 20; Stewart v. State, 22 Ohio St. 477; Whart. Conf. of Laws, § 722. Supra, §§ 287, 288. 1 Com. v. Quimby, 6 Bost. Law Rep.. (N. S.) 210. O'Mealy v. Newell, 8 East, 364. 9 Infra, § 1275. 10 U. S. . Bailey, 9 Peters, 238; U.. S. v. Winchester, 2 McLean, 135. 129 view has been taken where the authority of the State officer to administer the oath is implied under the act of Congress. But the right of Congress to impose duties of this class on State officials may be questioned.2 § 1266. Perjury may be assigned on an oath administered by a And so jus- justice of the peace, on the investigation of a matter tice of the submitted to arbitration by a rule of court, with the consent of parties. The same rule applies to arbitrators. But it may be otherwise if the arbitrators have no power to make a binding award.5 peace and False swearing VI. IN PROCEEDING AUTHORIZED BY LAW. § 1267. To constitute the technical offence of perjury at common law, it must appear that the false swearing was in a judicial proceeding, or, as we will see hereafter, in promust be in ceedings which by statute have this predicate assigned proceeding authorized to them. It must be remembered, however, that in some by law. jurisdictions it is held that the making of a false affidavit in any proceeding authorized by statute is held to be a distinctive misdemeanor; though in an indictment for such an offence, the averments peculiar to perjury may be rejected as surplusage. If the defendant took a false oath when examined as a witness at a trial; or in an affidavit to or answer to a bill in equity; or in depositions in a court of equity;10 or before a commissioner to take depositions for a foreign court ;" or on a motion for continuance ;12 or in proceedings before referees;13 or in an affidavit in any pending 1 U. S. v. Madison, 21 Fed. Rep. Rump v. Com., 30 Penn. St. 475. 628. Supra, § 1244. Infra, § 1270. issue in court,' such as a motion for a new trial;2 or upon a wager of law; or upon a commission for the examination of witnesses; or in justifying bail in any of the courts ;5 or before a federal commissioner ; or on a plea in abatement; or in naturalization proceedings; or upon an affidavit in habeas corpus proceedings; or in a judicial proceeding in a court baron;10 or before a grand jury; or in mitigation of sentence ;12 or before a legally authorized ecclesiastical court ;13 it is perjury.14 Juror in §1268. An indictment lies against a juror which alleges that he falsely and corruptly swore upon his voir dire, that he had not formed or expressed an opinion on the merits of dictable for the case, when in fact he had.15 false swearing on voir dire. Voluntary false affida § 1269. But a mere voluntary oath cannot amount to perjury. Therefore, false swearing in a voluntary affidavit, made before a justice of the peace or notary, before vits are not whom no cause is pending, and under no statutory procedure, is not perjury.16 Even when a reference before arbitrators 15 Mod. 348; 1 Show. 335, 397; 1 Ro. Rep. 79, per Coke, C. J.; Stewart v. State, 22 Ohio St. 477; State v. Keenan, 8 Rich. 456. 3 State v. Chandler, 42 Vt. 446. 4 Cro. Car. 99. See 1 B. & P. 240. 5 Com. v. Hughes, 5 Allen, 499; Com. e. Carel, 105 Mass. 582; Pollard People, 69 Ill. 148; State v. Lavalley, 9 Mo. 824. See Stratton v People, 20 Hun, 288. U. S. r. Volz, 14 Blatch. 15. 7 State v. Roberts, 1 Humph. 539. U. S. v. Jones, 14 Blatch. 90. In this case J. testified, as a witness, that he was well acquainted with the applicant. It appeared that he was a total stranger to the applicant, and volunteered as a witness. This was held perjury. See, also, State v. Whittemore, 50 N. H. 245; State v. Helle, 2 Hill, S. C. 290; and see infra, § 1275. White v. State, 1 Sm. & M. 149. 10 5 Mod. 348; 1 Ibid. 55, per Twisden, J. "Supra, § 1261. perjury. 12 State v. Keenan, 8 Rich. L. 456. 13 5 Mod. 348. Supra, § 1260. 14 Archbold's C. P. 9th ed. 538; 1 Hawk. c. 69, s. 3. 15 State v. Wall, 9 Yerger, 347; State v. Moffatt, 7 Humph. 250; State v. Howard, 63 Ind. 502. See Com. v. Stockley, 10 Leigh, 678. 16 U. S. v. Nickerson, 1 Sprague, 232; Com. v. Knight, 12 Mass. 274; Jackson v. Humphrey, 1 Johns. 498; People v. Travis, 4 Parker C. R. 213; Shaffer v. Kentzer, 1 Binn. 542; Lamden v. State, 5 Humph. 83; State v. Wyatt, 2 Hayw. 56; Pegram v. Styrm, 1 Bailey, 595; State v. Stephenson, 4 McCord, 165; State v. Dayton, 3 Zab. 49. It is doubted if perjury can be assigned upon the oath made for the purpose of obtaining a marriage license; R. v. Alexander, 1 Leach, 74; but see 1 Vent. 370; and in R. v. Foster, R. & R. 459, a false oath taken before a surrogate, to procure a marriage license, was holden not sufficient to support a |