
    The State vs. Brady.
    Pühjury. Petition for writs of certiorari and supersedeas — when the clerk of the circuit court may not administer the oath to the petitioner. Neither the act of 1833, chap. 65, sec. 1, nor any other statute confers upon the clerk of the circuit court authority to administer an oath, in vacation3 as to the truth of matters stated in a petition for writs of certiorari and supersedeas, and an oath so administered not being lawful, perjury cannot be predicated of the alleged false swearing.
    Brady having been indicted in the circuit court of Morgan county for perjury, by his attorney demurred to the indictment, and at the July term, 1850, Alexander, Judge, presiding, the demurrer was sustained, whereupon Attorney General Cummings, in behalf of the State, appealed in error.
    
      Attorney General,'for the State.
    Maynard, for Brady.
   McKinney, J.,

delivered the opinion of the court.

This is an indictment for perjury. The defendant demurred to the indictment, and, on argument, the demurrer was sustained ; and thereupon the Attorney General, in behalf of the State, appealed in error to this court.

The perjury assigned, is in the false swearing to certain matters contained in a petition, to a circuit Judge, for writs of certiorari and supersedeas. The indictment shows that the petition was sworn to before the clerk of the circuit court, but not in term time, or during the session of the court. And the only question we deem it necessary to consider, is, has the clerk of the circuit court any legal authority to administer an oath in such a case ?

We think not. To constitute a lawful oath, the person by whom it is administered must have authority conferred by law.

That the clerk of the circuit court, as the ministerial officer of the court, may, under the direction of the court, in term time, administer the oath, in a case like the present, there can be no doubt. And nothing more than this is intended by the act of 1833, chap. 65, sec. 1. This statute does not, nor does any other statute of which we are aware, confer authority upon the clerk of the circuit court to administer such oath in vacation.

In other words, he has no such authority, except when acting in the presence of, and by direction of the court, either express or implied.

It follows, therefore, that the oath not being lawful, perjury cannot be predicated of the alleged false swearing. And upon this ground, without noticing other objections to the indictment urged in argument, we think there is no error in the judgment of the circuit court.

Judgment affirmed.  