61 Ala. 448 | Ala. | 1878
The present indictment avers only that the appellant had commenced an action of detinue before a justice of the peace, and had made affidavit of his ownership of the chattels sued for, Avhich is averred to be false. The purpose of making the affidavit is not shown, nor is it shoAvn that it was used, or attempted to be used in the course of the suit. The affidavit was not authorized by law, unless the appellant had applied for an order of seizure of the chattels. If no such application was made or no such order obtained, the affidavit AAs extra judicial, the justice Avas without authority to take it, and it is not the subject of indictable perjury. — People v. Fox, 25 Mich. 492; People v. Gaige, 26 Mich. 30. The allegations of the indictment may be true, and the affidavit may have been improperly extorted by the justice as a condition on which he would entertain the suit, and issue process for the appearance of the defendant. Or, it may have been ignorantly made, to be used as evidence on behalf of the appellant on the final trial before the justice. There must be an oath authorized by law, and the indictment must show it affirmatively. It does not appear from the present indictment, that the justice had authority to administer the affidavit, and it could only be made to appear, by the averment that the appellant had applied for an order of seizure under the statute. If such application and order of seizure-was made, the substance of the proceedings are not stated, and the indictment is not in conformity to the statute.
We do not deem it necessary in the present state of the record, to consider any other question which the case may involve. If they should arise again, it will be probably in a different mode. The judgment must be reversed and the cause remanded. The prisoner will remain in custody until discharged by due course of law.