ments,as between individuals, the golden rule is both wise and sonnd. Entertaining these views; the judgment Of the district court will be reversed,and the petition for habeas COrpU8 will be 4enied.
'(Di8trict Oourt, D. Oregon. December 29, 1887.)
OF DEFENDANT'S OATH.
In an indiCtment for p'erjury, it must distinctly appear that the defendant , was sworn., An allegation tbat the 'defendant did "depose and swear" to the truth of the answers contained in the deposition following, does not show that the defendant was "sworn" to the truth of said answers. .
'. . . " . '. " . n.: ,
One may ""wear" who'is not "sworn;" and in such case the oath is not adbut self-iIJ;lposed, and the swearer inCUrS no legal liability ther!!" about. . (SllUabU8 bV thll (7Qurt.)
Indictment fQr PerjuJ:'Y.. OQ/;demurrer. ,Lewi8L. lIfcArthur, for the United States. Gyms A, Dolph, for defendallts.
DJlj'ADY, .J. The indictmeritin tbis-case Wa!! filed AprilS, 1887,and charges the defendant with tbecDim.e of perjury, committed on August 19, 1885, -in a deposition given before the register and receiver of .the United States fand-office for the Lake'liew in· making the final proQf in the matter of bis desert-land entry in said district under taeaet of March,3, 1877, (11l St, l377.) .The defendant demurs to tae indictment; for that (1) the saDledbes not state,facts sufficient to constitute , a crime against.the United States; and (2) the court has no jurisdiction of the sUbje.ct-matter. On the argument the only point made by [email protected]
UNITED STATES V. M'CONAUGHY.
In an indictment for perjury it must be directly stated in some form of apt words that the defendant was sworn. It is not sufficient lhat it so appears by inference or argument. 1 Whart. Crim. Law,§ 1287; 2 Bish. Crim. Proc. § 912; State v. Divoll, 44 N. H. 142. The indictment in this case only alleges that the defendant did" depose and swear." All that is subsequently said about "said oath," and the tak,ing and administering of the same, refers to the allegation "did depose and swear," and adds nothing to its signification or effect., The case in this respect is nE)ady on aU fours with that of U. S. v. Hearing, 11 Sawy. 521. .' In that case the was. indicted for petjury in a homest<!ll.d affidavit, was set out in theindictment.'fhis followed by allegation, that the defenda}ltdid, before a person authorized to "said, oath;", depose andstaw contrary to his said oath. In sustaining;a rlemurrer to the indictment, the court said that after setting out the,affidavit there should have been an allegation "that the defendant, being then and there duly sworn by 'the clerk," etc., "did depose and state that said affidavit was true;" and that the allegation that the defendant did depose anet statecontrai-y to his said oath is, if anything, an att.eril'pt to assign perjury on a "said" or supposed oath, the administration ofwbich is nowhere alleged. But the fact that the defendant was sworD. must be distinctly , It is not sufficient that it appears by implication. In this case it i's'true that the indictment states that the defendant did "depose and swear, " as in the 'deposition already set .forth. B\ltethis .is by no meane the equivalent ¢>f the sufficient ,allegation, "being duly sworn, did depose aI;ld say." To "depose" state oniffirm some matter of fact in an affidavit or ,And this niay be done as well before 'an oath is,administered to the deponent as, afterwar,ds. In this case it appears that it was. administered to th,El witness had deposed. One may 41 swear" who is not duly "sworn.'" In one case the oath, so to speak, is self-imposed, and the swearer,incurs no legalliability thereby, while, in the other.1he oath is adminiStered by a person having authority so to do, and the affiant takes its.ubject,to the pains and penalties for peIjury· .It is hardly necessary to add that the statement in the that the deposition "was subscribed and sworn to before" the receiver ,is not an allegation to that effect, but m\lrely a recital, from, the receiver's certificate. And it may be well to s'uggest that this Qertificate does not' state in words that the defendant subscribed and swore to the deposition, even if it does so by implication. The demurrer is sustain.ed.
UNITED ,STATES V. MCCONAUGHY,
. (D!Bt1'lct O®frt,
Lewis 'I.. McArthur; for the United States. Ogrw '.A. Dolph.
two were argued and with the foregoing. The'defendants are eaclJ..indicted for perjury alleged to have been committed in deposJtions given by them as witnesses in the qlatter of the final proof of ':Martitl,YcCOriaugby's desert-land entry. ThedelIiurrers to the indictments are 8ustainedon tile grdund thabit not appear therefrom that the defenduta·wefQduly sworn. r
.".t.. ! I.f,.
D. iclon/iecticut. .
Julv 18. 1887.)
; 15;995, to George yv. ,·Morse, ..Q<J}ober $,.1l:lEi6,for, devJ.ces. used in the operation of breech-Ioadmg , military lltp\-lirms, are not iJifringed by the manufacture of arms' by the Win.' cheste»,Repeil.ting Arms'Com<pa.ny, 'wl:lich are made'under the Smith & Wes-
; into the 'barrel; 'as r'dqulred ill the first claim of the' Morse patent, and it does not halVe rIilie nippers, S; or ,rRdiaLhooks. operating'in substantially the same way, as in the second '<Jlaim. ' 2, __ AT L+w.. ,. . . ' ' , ,. K nbte'was given in consequence O'f a mistake of muterial facts into which b, the agentjoUhs'll\aker was led; without laches on his part, and without fraud on the part of the agent of the payee, the former having at handthe ,.,of,t1wwleqge whiC;;h, PY.s. w.ore e:x;ami!1ation, the discovery " af the 'mtstalte C'OJiid have been 'made, Upon a cross-bill flIed by'the maker '. .'for.th'lll ca.ncellation of t;ne note, held, that' as, upon these facts, the defense , w,8s'fullyqPjlDltothe maker in an action at law, the bill should be, dismised. withoutprej!ldlce ,to the right of the maker to interpose its defenses in any :action, elt'C6t\t d1eue'tense of fraud.' '. ·
On Bill and Cross-Bill. Samuel A. Duncan and Edmund Wetmore, for plaintiff. John K. Beach, John S. Beach, and B. F. Thurston, for defendant.
SHIPMAN, J. The main case is a bill in equity based upon the alleged infringement of letters patent No. 15,995, which were granted to George W. Morse, on October 28, 1856, for the term of 14 years, for improve.. ments in breech-loading fire-arms, and which were extended for a period of seven years, from November 29. 1872. The bill was filed November