to'wit, that theamount'ofthe issue was Within the limits aIact of 1881, and a purchaser of the bonds was not bound: to in,quire, the case being within the principles declared in ,Yarcyv. Oswego, 92 U. S. 637; School Dist. v. Stone, 106 U. S. 183, 1 Sup. Ct. Rep. 84, and cases there cited; and, particularly, in Chaffee Co. v. Potter, 142 U. S. 355, 12 Sup. Ct. Rep. 216. In the last-mentioned case it was held: ""When there is an express recital upon the face of a municipal bond that the limit of issue prescribed by the state constitution has not been passed, and the bonds themselves did not show that it had, the ilolder is not bound to look further." The answer to this contention of the plaintiff in error is that the recital in the bonds sued on is not a recital of facts so much as of a conclusion of law; that the bonds contain no express recital of the existence of any fact; and that a fair construction of the act of 1881 leaveiJ the ascertainment of no fact to be found by the county commissioners' court asa condition precedent to the issue of bonds thereunder, 'but practically leaves the' county commissioners' court and all purchasers and holders of bonds to act at their peril. All of the decisions of the supreme court of the United States from Dixon Co. v. Field, 111 U.S. 83, 4 Ct. Rep. 315, to Sutliff v. Board, 147 U. S. 230, 13 Sup. Ct. Rep. 318, (decided during the present term,) agree that the purchasers of bonds issued by municipalities under authority of laws which limit the amount of bonds to be issued to a certain percentage of the assessment rolls, or to a given rate of taxation, based on such rolls, are chttrged with notice of the assessment rolls, and of the amount of bonds which can be validly issued, based on such assessment rolls. According to the finding of facts by the circuit court, bonds numbered from 1 to 30, being over twice the amount of bonds that the defendant county could lawfully issue under the act of 1881, were issued in bulk by the county commissioners' court of Howard county, were transferred by the treasurer of the county to Milliken & Co., who transferred them to Nelson & Noel, by whom they were transferred to the plaintiff; so that, in fact, the plaintiff and his vendors had actual notice, notwithstanding any recitals that may have been contained in the bonds themselves, that the issue of bonds was largely' in excess of the amount which the defendant county could lawfully issue under the law invoked. Considering all the undisputed facts in the present case, we are clear that the defendant county ought not to be estopped, by the recital contained in the bonds to the effect that they were issued in ttccordance with the provisions of the law of 1881, from pleading, as a defense to the action, the illegality and invalidity of the bonds sued on. The judgment of the circuit court is affirmed, with costs.
UNITED STATES v. SINGLETON.
(District Court, S. D. Alabama. March 7, 1892.)
CRIMINAL LAW-INDICTMENT FOR PERJURy-MATERIAL AVERMENT!!.
An indictment for perjury must aver the facts showing the falseneSll of the oath and its materiality to the proceeding in which it was taken.
UNITED STATES V. SINGLETON.
S. SAME-MATERIALITY FOR COURT.
In perjury, the question of materiality of the false oath is for the court;. and not for the jury. An indictment for perjury, alleging the false oath to have been made in final homestead proof in stating the beginning of a party's residence to have been in a certain year, without averring also that this year was the beginning of the entry, does not show the statement to be material, and is demurrable.
Oriminal Law. On demurrer to indictment for perjury in final homestead proof. Demurrer sustained. M. D. Wickersham, U. S. Dist. Atty. T. 0. Stevens and I. M. Davison, for defendant. TOULMIN, District Judge. The indictment charges the defendant with the commission of perjury in testifying as a witness on the proceeding for "final proof" in the homestead entry of one William A. West, on the 1st of October, 1890. in giving testimony on said proceeding it was material to show that said West had resided on or cultivated the land covered by his homestead entry for the term of five years immediately succeeding the filing of the affidavit required by law to be made by him at the time he made the entry. The indictment avers that defendant did in giving his said testimony, depose and say that William A. West settled and established a residence on said homestead land (describing it) about the year 1882, and that he cultivated about one half to one acre for five seasons or more; with the proper averments that such statements were made on oath duly administered, etc., and that they were knowingly and false, etc. To found an indictment for perjury one of the requisite circumstances is that the matter sworn to must be material to the question depending; and the materiality of the matter sworn to must be expressly averred, or it must be clearly disclosed by the facts as stated on the face of the indictment. It must clearly appear that it was material, or it must be alleged to be so; and the question of materiality is for the court. The specific statements by the defendant that the homesteader had settled and established a residence on the land about 1882, and had cultivated a small portion of it for five seasons or more, mayor may not have been material. It does not appear by facts, as stated on the face of the indictment, that such matter was material, and there is no express averment that it was so. The proceeding, as I have said, was the making of "final proof" in a homestead entry, and it was material whether the homestead applicant had resided on or cultivated the land entered for the term of five years immediately succeeding the filing of the affidavit required to be made by him at the time of the entry. The indictment does not aver that the defendant made any such material statements on oath. It does not aver that he testified to any such material facts. It does not anywhere appear in the indictment that the entry was made in the year 1882. If it did, it could then be seen that the alleged false statement made by the defendant had some materiality to the question depending in the final proof proceedings. When there is a specific averment that the cultivation or residence
was at a particular time or for a particular penod, it is necessary for it to appear by some other appropriate averment in the indictment that such particular time had some connection with or reference to the time required by law for such residence and cultivation. Without such appropriate averment, the materiality of the particular time of such residence and cultivation averred to have been sworn to by defendant does not appear. The point raised by the demurrer to the indictment is not whether there are material or immaterial averments in the indictment; but whether the indictment shows that the matter alleged to have been sworn to by the defendant, and on which the perjury is assigned, was material in the proceeding in which the alleged false oath was My opinion is that the point is well made, and that the demurrer is good, and should be sustained. It is so ordered..
UNITED STATES v. MOOK CHEW. (OircuIt Oourt of Appeals, Ninth Oircuit. January 30, 1893.)
A certi1lcate of identification given by a Obinese consul in Japan, and visaed by 'the vice consui general of the United States at Yokohama, is not su1II.clent under section 6 of the exclusion act of July 5, 1884, in the absence of evidence, other than the certl.ftcate Itself, that the consul Issu· ing it has authority from the Chinese government to do so.
Appeal from the Circuit Court of the United States for the North· ern District· of California. Habeas corpus proceeding by Mock Chew, a Chinese person who was refused permission to land in the United States. The circuit court discharged the petitioner, and permitted him to land. The United States appeals. Reversed. W. G. Witter. Asst. U. S. Atty. Thomas D. Riordan, for appellee. Before McKENNA. Circuit Judge, and MORROW, District Judge. McKENNA, Circuit Judge. The appellee alleges that he is a subject of the emperor of China and that he came to the United States on the steamer Gaelic, but that the collector of the port of San Francisco denied his application to land, basing his refusal on the Chinese restriction act of May 6, 1882, and the acts amenda· tory thereof and supplemental thereto. Appellee, however, claims the right to land by reason of a certificate issued to him by the Chinese consul at Yokohama, Japan. The certificate, with the indorsement of G. A. Scidmore, United States vice consul general, is as follows:
"H. I. Chinese Majesty's Consulate. . "Yokohama, Japan, May 14, 1891. "To Collectors of the Ports of the United States, and to All Others to Whom These Presents may Come, Greeting: I, the undersigned, consul of the imperial government of China at Yokohama, Japan, hereby certify that the following described .person Is entitled and permitted to go to and come from the United