In re Walther , 29 F. Cas. 124 ( 1876 )

Opinion of

HOVEY K. CLARKE,

Register in Bankruptcy:

That an affidavit to be used in a cause pending in any court must be correctly entitled in tlie court, I have supposed was a well-settled and indisputable principle of practice. The reason is conspicuously stated in Whipple v. Williams, 1 Mich. 115: “Affidavits must be correctly entitled in the cause in which they are to be used; otherwise an indictment for perjury would not lie upon them if false.” The occasion of the error in the case cited was, that when the suit was commenced there were two plaintiffs. The cause had been severed, and the court says that “since the severance there is no such cause in this court as that in which the affidavits are entitled.” If it were possible to suppose that proofs of debt in bankruptcy did not come within this general principle applicable to affidavits, general order ¿14. adopted by the supreme court, at the December term, 1S71, settles the question. It provides that “depositions to prove claims against a bankrupt's estate shall be correctly entitled in the court and in the cause.” If the reason assigned by the court in Whipple v. Williams, that unless an affidavit is correctly entitled, an indictment for perjury would not lie upon it if false (and (here are many other cases to the same effect), then, of course, the title of the affidavit is as material as any part of it. When the oath was administered to the paper offered to me as proof of the debt due Wm. Besor & Co., it was not such a paper as. if false, could support a prosecution for perjury. It was not perjury to swear to it. If perjury could be assigned upon it, if false, in the form as last presented to me,' it is because of the alterations which have been made in it by Messrs. .Noyes & Lloyd.

I am specially requested to call the attention of the court to the fact that these alterations are claimed to have been made by authority, which, in other words, claims that, without the administering of an oath, ltesor, the deponent, could authorize his attorney to convert a paper signed by him, and then lacking the essentia] qualities of a judicial deposition. into a sworn paper having all such qualities. This is, in fact, enabling the attorney lo swear what an alleged deponent is averred to say is true, and its effect is claimed to be, to charge the alleged deponent with the pains and penalties of perjury if the aver-ments be false. I am not aware that such a claim has ever been made anywhere before, and if admissible anywhere, it would not be in proofs of debt in bankruptcy, because the statute (section 5078) requires that all such proofs must be made by the claimant in person, unless he is absent from the United States, or prevented by good cause from testifying.

All of which is réspeetfully certified.

Approved. H. H. EMMONS.

United States Circuit Judge. Sitting in the Absence of the District Judge.