37 F. 666 | S.D. Ala. | 1889
(after stating the fads as above.) The controlling questions raised by the demurrers are—First, as to the authority of the judge of probate to administer the oath upon the falsity of which the indictment is laid; and, second, whether the oath was one' required by law of defendant in the particular matter to which it relates. To constitute perjury it is essential that the oath was administered in the manner prescribed by law, and by some person duly authorized to administer the same in the matter or cause wherein it was taken. U. S. v. Deming, 4 McLean, 3; U. S. v. Babcock, Id. 113; U. S. v. Wilcox, 4 Blatchf. 391; U. S. v. Curtis, 107 U. S. 671, 2 Sup. Ct. Rep. 507; 3 Whart. Crim. Law, §§ 2244, 2245. And the oath must be one required by law in such a case. U. S. v. Nickerson, 1 Spr. 232; Linn v. Com., 96 Pa. St. 285; People v. Fox, 25 Mich. 492; State v. Crumb, 68 Mo. 207; Gibson v. State, 44 Ala. 17; White v. State, 1 Smedes & M. 156. In making final homestead proof under section 2291, Rev. St. U. S., the homestead settler may make the affidavit and proof required by that section in support of his claim before the register or receiver, or before the judge, or, in. his absence, the clerk of some court of record. If the homestead settler does not wdsh to remain five years on the land, the law permits him to pay for it with cash, and to obtain a patent therefor from the government. In other words, he may abandon his rights under the homestead law, and avail himself of the benefits of the law granting pre-emption rights. See sections 2301, 2259, Rev. St. When this is done it is called a “commuted homestead entry.” The affidavit required to be made by the settler in such case shall be made before the register or receiver, or before the clerk of the county court, or some court of record of the county and state or district in which the land is situated. See act of congress of June 9, 1880, (1 Supp. Rev. St. U. S. 542,) and section 2262, Rev. St.,