THE UNITED STATES VB. AMBROSE.-
(Circuit Oourt, 8. n. Ohio. May, 1880.)
UNITED STATES DrSTRIC'r JUDGE-POWER TO ADMINISTER OATHs.-l. A
j.udge of a district court of the United States has the power to administer oaths in matters arising in his court, or coming before him as a judicial officer of the United States. Such power is incident to his judicial office. SAME-OATH OF CLERK TO ACCOUNTS WITH GOVERNMENT.-2. The administration by such judge to a clerk of a United States court of the oaths required to be made to his accounts with, and returns to, the government, is such a matter, and is within his power to administer oaths. CLERK'S ACCOImTS-OATH TO-PERJURY.-3. Whether the sworn statements required to he made by a clerk of a United States court, in his accounts with, and returns to, the government, are" decla1'att'ons" or .. cffrtijieates," within section 5392 of the United States Revised Statutes punishing perjury, guaYr8.
Demurrer to the Indictment. The defendant was indicted for perjury, under section 5392 of the United States Revised Statutes, in swearing to his accounts against the government as clerk of the United States courts for the southern district of Ohio, and his emolument returns to the attorney general, before the United States district judge for that district. The first count charged the defendant with making oath to a false "written declaration by him subscribed," in swearing to his account against the government for the six months preceding January 1, 1879; the second count the same, in swearing to his emolu· ment return to the attorney general for the six months pre. ceding January 1,1879; the third count the same, in swear· ing to his emolument return for the six months preceding July 1, 1878. The fourth count charged him with making oath to a false "written certificate by him BU bscribed," in swearing to his account for the six months preceding January 1, 1879. Channing Richards, U. S. Dist. Atty., for plaintiff. George Hoadly and Edgar M. Johnson, for defendant. SWAYNE, J. Two objections are taken to the indictment
· Prepared by .Messrs. F. Giauque and J. C. Harper, of Cincinnati, O.
UNITED STA.TES V. A.MBROSE.
-First, that it does not appear that the district judge who administered the oath, in connection with which the perjury is alleged to have been committed, had authority to swear the defendant. I was a little troubled by that objection at the outset, the rule being so strict in the criminal law as to the elements of the crime, and particularly as to the authority of the officer administering the oath, the breach of which is alleged in the indictment. Upon full reflection, and the examination of such authorities as have been brought to my attention, I am perfectly satisfied that the judge had the power to administer the oath. The oath is incident to his judicial office. I do not mean that he could go into the street and administer oaths to everybody, and for all purposes and under all circumstances; but this was a matter of his own court-this was a matter touching the government of the United States, in which he is serving as a judge, and under which he is a judicial officer. Such oaths, according to my recollection, and, indeed, my knowledge, have been administered for the last 30 or 40 years, and I never knew an objection taken before in a case like this. I think, upon the whole, the United States v. Bailey, 9 Peters, 238, which was referred to by Mr. District Attorney Richards, may be considered as conclusive upon the subject. At any rate, my judgment is that this exception is not well taken. The other objection is that the indictment sets out that the defendant had failed to make returns as required by law, and that in swearing to these returns he swore, as charged in some of the counts of the indictment, to a certificate which was false-which he knew to be false; and it is charged in other counts of the indictment that in swearing to his returna he had sworn to a declaration, knowing that in so swearing he swore falsely. Now, in the argument, it is shown, with great clearness, that there are a large number of instances defined by the laws of the United States in which declarations, specifically Darned as such, are required to be sworn to; and so there are
a very large number of instances in which certificates of various kinds are specifically required to be sworn to. There is no provision in any act of congress, so far as I know, or so far as revealed from the elaborate discussion before the court, in which a return by the clerk, such as the law required in the case, touching emolument returns, is specifically made the subject of an indictment for perjury. Now it may be said that in a broad, general sense the clerk's statement of his account, and swearing to it, is a declaration that it was true; and so it may be said that the oath was a certificate. But I am by no means clear, though that is one legal view of the subject. I think that such a view of the subject is hardly warranted by the principles of law touching the crime of perjury. They are of great strictness, and very wisely made so. This case being one of great importance to the defendant, and not without importance to the government, I have concluded upon the whole-my brother, the circuit judge, (Baxter,) agreeing-that, as to the questions arising touching this aspect of the case, we will divide and certify the case up to the supreme court.
(Dl8trict C'ourt, D. DeZawrJn.
BANKRUPTOy-DISCHARGE-SECTIONS 9 A1iD 21, Aar OF CONGRESB, JUllB 22, 1874, OONSTRUED.-Constructions given to sections 9 and 21 of the act of congress of June 22, 1874. This act effects a total repeal of the provisions in section 5112, in the Revised Statutes of 1874 and 1878, which proviso is in these words: "But this provision shall not apply to those debts from which the bankrupt seeks a Qlscharge which were con. tracted prior to the first day of January, eighteen hundred and sixtynine." BAME-SAME - ABSENCE OF AsSETB- CREDITORS CONSENTING TO DISOHARGE.-As the law now stands, only those creditors who have proven their claims can have them counted in the formation of the complete liability of the bankrupt to which the new law of one-third in value and one-fourth in number is applicable; but all creditors, no matter when their debts were contracted, can give or withhold assent to discharge of bankrupt, if he has not tbe requisite amount of assets, i. e., one-third in value, and one-fourth in number of the creditors who have proved their claims. 8AME-SAME-BoOKB OF BA1iKRuPT-OBSCURITIES IN.-Books are required of the bankrupt which are reasonably explanatory of the business conducted, and kept obviously with the intent of affording information as to that business. It is no reason to refuse a discharge to a bankrupt because there llre obscurities wh ich need explanation, when those obscurities are explained, and there is no evidence of fraud or deceit in the entries. BAME-BAME-AMENDMENT OF SClIEDULES.-When there Is no reason to withhold a discharge on the ground of fraud against the bankrupt laws, the court will order forllllli amendments made to the schedules which were omitted by the bankrupt through ignorance and mistake, and the case continued, in order that such proper returns may be made; and, upon compliance with the orders of the court, an application for discharge may be made at some future time.
In Bankruptcy. BRADFORD, D. J. Application for discharge of the hankrupt. The question which meets us at the threshold of the case is, the bankrupt having no assetR, has he produced the written assent, filed in this court, of a sufficient number and value of his creditors to entitle him to his discharge, standing the absence of all assets?