108 Mass. 473 | Mass. | 1871
It appeared by the records and papers m evidence, that, after the defendant had sued out Ms writ of audita querela, and it had been regularly served, he made written application to the superior court, where the case was pending, for a writ termed by him in his application a writ of supersedeas, and praying for a stay of proceedmgs under the execution which he was seeMng to annul, until the final hearing could be had. The facts upon wMch his petition was founded are therein fully set forth.
The superior court has power, after the issuing of a writ of audita querela, to “ issue any writ of injunction which the nature of the case and justice and equity in their judgment reqmre.” Gen. Sts. e. 145, § 12. And the eighteenth rule of practice in that court requires all motions grounded on facts to be verified by affidavit. There can be no doubt, therefore, that an oath- administered to a party in such a proceedmg, for the purpose of establishmg the truth of the facts stated, is an oath lawfully administered in the regular course of a judicial proceeding.
For falsely taking such an oath, the defendant has been found guilty of perjury, under an mdictment which charges, in sub stance, that he was lawfully required by the superior court to make oath before the clerk of that court, and that he then and there, before the clerk, who had full power to administer it, did
The petition is addressed to the justices of the superior court. The time of its filing is duly minuted thereon ; and under a heading of “ Suffolk, ss. Superior Court,” is a certificate that it was subscribed and sworn to before the clerk, signed by him in his official capacity, and bearing the same date. The clerk testified that there was no general or special order of the court to administer the oath, but that it was the general practice, and that the petition subscribed by the defendant was presented and sworn to by the defendant before him. There is no doubt that the superior court had authority to administer this oath in open court, or to direct its proper officer, the clerk, to do it.' The Constitution, part 2, c. 1, art. 3, grants full power to courts and judicatories “ to administer oaths or affirmations for the better discovery of truth in any matter in controversy or pending before them.” It was proved, by the uncontradicted evidence of the clerk, to be the general practice of the superior court in such cases for the clerk to administer the oath; and proof of such practice is equivalent to proof of an express order of the court. Dearie v. Ker, 4 Exch. 82. The King v. Koops, 6 Ad. & El. 198. The presumption is, that legal proceedings properly certified were conducted legally; and it is to be assumed, upon all the evidence in this case, in the absence of positive proof to the contrary, that the defendant was sworn to the truth of the facts stated in his petition, in open court, if that mode of administering the oath was necessary. Mere want of recollection on the part of the clerk, whether the defendant was sworn in court or in his office, cannot be permitted to control this presumption. United States v. Babcock, 4 McLean, 113. Commonwealth v. Hatfield, 107 Mass. 227.
The defendant further excepted to the admission of his answers in the original suit in which judgment was rendered and execution issued against him. They were offered by the government and admitted on the defendant’s cross-examination. But without stopping to consider whether these answers were admissible, it is sufficient that upon the issue on trial they were wholly immaterial. The issue was upon the truth or falsity of the material fact stated in the petition, namely, that the execution had been paid and satisfied since judgment recovered. Upon that issue, it was not material what defence had been made in the original suit. Nor can we perceive that the defendant could have been in any way prejudiced by their admission.
Exceptions overruled.
