McGragor v. State

1 Smith & H. 179

• Court: Indiana Supreme Court
• Decided: November 15, 1848
• Status: Published

Opinion

Per Curiam.

— “ This evidence was objected to by the defendant, on the ground, that the case proved was one in which the clerk of the Circuit Court had no authority to administer the oath alleged to be false. We think this objection was well taken. The statute regulating the granting of injunctions, requires that the bonds to be given, shall be taken and approved by the court, judge, or judges, granting such injunctions. R. S. ch. 46, § 130-2-3. That part of the duty of the court or judge, cannot, therefore, be delegated to the clerk.

“ But as the authority of clerks of the Circuit Courts to administer oaths, is given by statute, and limited to certain specified cases, we think the indictment is bad, as it does not show that the oath upon which it was founded, was one which the clerk was competent to administer. The general averment that the clerk had the competent power is insufficient. That is an inference of law to be drawn from the facts stated, and which, in this case, was not warranted.”

Judgment reversed, &e.