
    Van Steenbergh against Kortz.
    NEWYORK,
    May, 1813.
    ^ slander, for mitted perju. i„g out an at-before*í*yígl tice of the peace, it was held, that as thorim^thé j"set,c®h*° “* tachment ou proof^it' was ^tion’todel ®ido® f °"ndthe where betook the party, °f fogliCTUienre1 this was held judgment, & "fl jurS?6 tion> al,u! tIle proceeding was therefore. i6"°n<?t°avo?d¡ and perjury sisned in an oath errone* ou&iye taken, whHe'the proceerlings re® main uure® versed.
    THIS was an action of slander, brought against the defendant, for charging the plaintiff with having sworn falsely, and having committedper/iti^, in swearing out three attachments, in three suits, before a justice, under the act for the recovery of debts to the value of 25 dollars, in which suits the above parties were plaintiff and defendanti The cause was tried at the Ulster circuit in November, 1812. The words charged in the declaration were proved, and as all having immediate relation to the oaths taken by the plaintiff before the justice, who was a witness, and testified that three several . attachments on promissory notes were granted by him at the same time, at the instance of the plaintiff; that no other testimony was given but the oath of the plaintiff himself, who made oath to his demand, and that he had frequently applied to the defendant for payment, which had been refused, and that, the defendant had then gone to Newburgh, as he believed, for the purpose of talcing the benefit of the insolvent act; that he believed that he had gone there to keep out of the way, to defraud his creditors, and to avoid being personally served with process. The witness considered the oath of the plaintiff as satisfactory, and thereupon issued the attachments.
    The defendant’s counsel moved for a nonsuit, on the ground, that the justice had not competent authority to administer such -oath to the plaintiff; and that the words, as proved, were not, there- • ti *niei iti fore, actionable. Rut the judge overruled the motion. The defendant went into evidence to prove that the oath taken by the plaintiff before the justice was Srlse.
    The jury found a verdict for the plaintiff for 25 dollars, and 10 ^ , cents, damages»
    A motion was made"to set aside the verdict and for a new trial.
    
      D. H. Ruggles, for the defendant,
    contended that the action would not lie, unless the plaintiff could be indicted for perjury. To constitute perjury" the oath must be taken in a judicial proceeding, before a competent jurisdiction, and it must be material to the question depending. Then had the justice power or jurisdiction to take the plaintiff's oath? The act (31 sess. c. 204. s. 21.) says that the justice, on application and satisfactory proof being offered by any creditor," &c. may issue an attachment.
    
      
      In Brown v. Hinchman, the court say, that proof means legal evidence. Now the party’s own oath is not legal evidence unless expressly authorized by statute. The act clearly intends other proof than the oath of the creditor. If so, the justice exceeded his jurisdiction; the oath of the plaintiff was nugatory and extrajudicial, and so not perjury.
    
      Sudam., contra.
    Taking the oath of the party does not render the proceedings void; it only makes them erroneous. An oath erroneously admitted, is not absolutely extrajudicial and void; it is matter of error. Suppose on the trial of a cause, improper evidence is admitted by the judge, would not the witness, if he swore falsely, . be equally guilty of perjury, as if the evidence had been properly admitted 1
    
    The objection as to the jurisdiction of the justice, goes to the right of administering the oath. But the act leaves it to the justice to decide as to what is satisfactory proof. He has a right to administer' the oath; and if he mistakes, as to the person who is to make it, it is an error of judgment, not an extrajudicial act
    The amendment made by the legislature to the 4th section of the act, shows that a different construction is applicable to the 21st section which remains unaltered. The 4th section applies to warrants by wrhich the person is to be arrested: the 21st section authorizes an attachment against goods. This may be a reason for allowing the oath of the party in one case and not in the other.
    
      P. Ruggles, in reply,
    said he could not see any difference in the language of the two sections, that would authorize a difference of construction. The fair inference from the amendment was, that the 21st section was to remain as before, and the principle laid down in Brown v. Hinchman was applicable.
    There is no ground in this case, for the distinction between an erroneous and a void act. When a'justice does an act not authorized, it is absolutely void.
    
    
      
       Com. Dig. Justice, B. 102, 104.
    
    
      
       1 Term Rep. 63-69. 1 Str. 693.
    
    
      
       9 Johns. Rep. 75.
      
    
    
      
      
         Cowp. 140. 7 Johns. Rep. 95.
    
   Per Curiam.

The justice had authority to administer an oath in the case stated, and the oath administered was in a judicial proceeding. The error consisted in granting the attachment upon the oath of the creditor applying. The statute (sess. 31. c. 204. s. 21.) directed the attachment to issue “ on application, and satisfactory proof being offered by the creditor,” and according to wíjaí was said by this court in Brown v. Hinchman, (9 Johns. Rep. 75.) the proof here meant legal evidence, which could not be the oath of the party in interest, unless in cases in which the statute evidently permitted it. The legislature, by allowing in a subsequent statute, (sess. 32. c. 186.) the party’s own oath in a case to which that decision applied, admitted that construction to be the true one. But the amendment did not apply to that section of the act, under which the oath in the present case was administered. We think, therefore, that the oath of the creditor applying, was not the “ satisfactory proof” intended by the act, and that the attachment issued without the requisite proof. It was, however, a question within the jurisdiction of the justice, what was satisfactory proof, for the statute had not defined it. He was, ex necessitate, and de jure, to judge and determine what was to him satisfactory proof; and if he made a mistake in judging of the proof, as he would have done in admitting a paper purporting to be a letter of the debtor, without evidence of the handwriting, it was a case of error of judgment, and not of excess of jurisdiction. The case of Smith v. Bouchier (2 Sira. 993.) does not appear to be applicable, for there the custom had prescribed a certain oath, and the magistrate did not act upon the one prescribed. If the justice here had acted without taking, or exercising any discretion, or judgment, as tq proof, the case would have applied. There are many cases, in the course of judicial proceedings, in which it is proper and necessary to take the party’s own oath, and the justice is authorized in many cases to do so, but though this be not one of those cases, it would be rigorous to hold all the proceedings void and coram non judice, so as, perhaps, to render the parties concerned trespassers. If the proceeding of the justice in the case before us, in consequence of this defect in the proof, is to be regarded as erroneous, and not void, then the better opinion seems to be, that perjury may be assigned in the oath so erroneously taken, and especially while the proceeding stands unreversed. (The King v. Sergeant and Annis, 1 Vent. 181. King v. Wright, 1 Sid. 148.)

The motion by the defendant for a new trial, qught therefore to foe denied.

Spencer, J. dissented.

To render the charge of false swearing actionable, the false swearing must be before a court or magis». trate having legal authority to administer an oath. The words spoken by the defendant impute to the plaintiff both false swearing and perjury, but the case shows that the words were spoken in reference to the plaintiff’s having sworn out attachments against the defendant. If the oaths were not judicially administered, the false swearing would not be perjury; and this depends on the question whether the plaintiff himself could be legally examined, as to the matters required to be proved, preliminarily to the issuing the attachments. The 21st section of the act (sess. 31, c. 204.) authorizes a justice to issue an attachment on application and satisfactory proof being offered by any creditor, that the debtor has departed, or is about to depart, from the country, or is concealed, &c. The 4th section of the same act authorized the issuing a warrant, if the person applying should prove, to the satisfaction of any justice, that the defendant was about to depart, &c. By a subsequent act, (sess. 32. c. 186.) the fourth section of the former act is so amended, as to authorize the examination on oath of a person applying for a warrant, as provided for in the 4th section of the former act. (Sess. 31.) This court put a construction on that section, and held that the proof of the facts required to entitle the party applying to a warrant, could not be given by the plaintiff, and though that decision was incorrect, in consequence of our overlooking the amendment, the principles are sound, and 1 think them applicable to the case of an attachment now; the alteration of the 4th section specifically by a subsequent law, and not applying that alteration to the 21st section, when the same phraseology is used as in the 4th, shows that it was not intended to apply to the 18th section, on the maxim that expressio unius est ea> clusio alterkis. It follows, if this reasoning be correct, that the justice was net authorized to take the oath of the party, to prove the facts preliminary to the issuing the attachment; and if not authorized, the oath was extrajudicial; and if fálse, did not amount to perjury.

But it was contended that {he proceedings were not void, and that perjury may be committed, though the plaintiff was illegally admitted to swear to the necessary facts, because the justice judicially decided that he was admissible. This is specious but unfounded. In Miller v. Scare and others, (2 Bl. Rep. 1145.) Chief Justice De Grey held, with the concurrence of the other* judges, “ that as to courts of a special and limited jurisdiction having power to hear and determine, a distinction must be made. While ~cfing withhi the line of their authority~ they are protected as to orrors in judgment; otherwise, they are not protected;" and he cited Dr. Beuchier's Case and others, as reported in ~ &ra~ 993. The defendants there justified the imprisonment, for that the chan~ cellor and s~hoIars of Oxjord were a corporation, and had power, by custom, to hold courts for personal actions, where either party was a scholar, or had the privilege of the university; that by cus- tom a plaintiff making oath, that he has a personal action, and that fie believes the defendant will not appear, but rua away, the judge may award a warrant and arrest, and detain him till security is given. The plea then stated, that Bouchkr had the privilege of the university, made a complaint to Shipper one of the defend- ants, the vice-chancellor, and took his oath; &c, but: he swore he suspected the defendant would run away, &c. and not that he be- lieved he would; and on account of this omission the court held the justification ill, and the judge and plaintiff, and the officers for joining with them, were adjudged to be trespassers. If the court has jurisdiction, and proceeds inverso ordine, or erroneously, the judge is not a trespasser; in the present and Bouchier’s Case, there was a want of jurisdiction. In neither case, could the process foe legally issued, because the proof required to entitle the party to it was not given, and until the proof was given there was a want of jurisdiction. The idea suggested on the argument, that if a witness be illegally admitted on a trial, as for instance, an inte- rested witness, and he swears falsely, such false swearing would lie perjury, is perfectly correct; for in such a case there is a jurisdiction, and the witness is judicially admitted, and, conse- quently, the oath is judicial. The distinction is between false swearing before a court to give that court jurisdiction, and before a court which has already acquired jurisdiction, and errs in admit- ting a witness. In the former case, it is not perjury; in the latter, it Is. I think there ought to be a new trial, with costs to abide the event of the

suit. Motion 
      
      
         See Terry v. Fargo, ante, 11 &c. V.
     