sworn as aforesaid, and being then and there lawfully authorized and required to declare and depose the truth in a proceeding in a court of justice, did upon his oath aforesaid concerning the matters contained in said answer before the said Herman E. Pearce, Esq., then as aforesaid being a notary public in and for said county of Marquette, then and there swear: that the said answer was true, except as to the matters stated therein to be on information and belief, and those he believed to be true; and that the said William W. Wheaton, being so sworn, as aforesaid, intending unjustly to aggrieve the said Luther Beecher, the said complainant, as aforesaid, in his oath aforesaid, to the answer aforesaid, before the said Herman E. Pearce, Esq., being then, as aforesaid, a notary public in and for the county of Marquette, and having suflicient and competent authority, as aforesaid, falsely, knowingly, wilfully and corruptly, by his own act and consent, upon his oath aforesaid, did answer and affirm, among other things, in substance, as follows. That is to say: That the said defendant (meaning the Marquette & Pacific Rolling Mill Company) was not in possession (meaning in possession of the iron mine of said Marquette & Pacific Rolling Mill Company, at Negaunee, in said county,) and was not engaged in its (meaning the Marquette & Pacific Rolling Mill Company) business of mining and selling iron ore, and that said defendant (meaning the Marquette & Pacific Rolling Mill Company) did not have in its (meaning the said Marquette and Pacific Rolling Mill Company) employ in and about said business (meaning the business of mining and selling iron ore) a large number of laborers, workmen and servants (meaning persons employed by said Marquette & Pacific Rolling Mill Company in and about its business of mining and selling iron ore), for hire (meaning persons to whom money was agreed to be paid for services. performed).'

"That the stockholders (meaning the stockholders of the Marquette & Pacific Rolling Mill Company, a corporation organized, existing and doing business under the general mining and manufacturing laws of the state of Michigan) were not becoming liable (meaning personally liable as stockholders) to any laborers, workmen or servants, for labor (meaning labor performed for said Marquette & Pacific Rolling Mill Company), or that they (meaning said stockholders) were personally liable for any labor, in case the said Marquette & Pacific Rolling Mill Company should make default in any payment of wages whatsoever.

"That said company (meaning the Marquette & Pacific Rolling Mill Company, defendant, as aforesaid) had no workmen, laborers or servants, belonging (meaning employed and hired) in and about said business (meaning the business of said Marquette & Pacific Rolling Mill Company, defendant) of mining iron ore, and selling the same, or any business carried on by said company (meaning said Marquette & Pacific Rolling Mill Company, a corporation, as aforesaid), for which the stockholders of said defendant (meaning said Marquette & Pacific Rolling Mill Company) could in any event become liable (meaning that no persons were employed or working as laborers for said Marquette & Pacific Rolling Mill Company, in and about its business of mining and selling iron ore), as by the said answer of the Marquette & Pacific Rolling Mill Company, defendant, still remaining on file and of record in the circuit court for the county of Marquette in chancery, aforesaid, at the city and county of Marquette aforesaid, among other things appears."

999

The recitals then negative the truth of the facts so sworn to by Wheaton, and conclude as follows: "That the matters so falsely sworn to as hereinbefore stated were material to the issue made by said bill and answer. That the said William W. Wheaton falsely, wickedly and corruptly, in manner and form aforesaid, did commit wilful and corrupt perjury.

This is the complaint as it is recited by the justice in his warrant. The justice goes on to say that "on examination on oath of the said John Simmons by me the justice of the peace, it appears to me, the said justice of the peace, that said offense has been committed, and there is just cause to suspect the said William W. Wheaton to have been guilty thereof," and he thereupon commands the arrest.

Does this complaint show by its recitals a case of perjury? If not, the sheriff may perhaps be excused for declining to serve the warrant. In considering this question, however, we shall look for no technical defects, but shall concede that if all the substantial allegations necessary to make a good complaint are to be found in this, the fact that some of them are not made with the fullness and accuracy required in indictments will be no sufficient reason for a refusal to execute the process. The question is one of substance, not of

technical precision, and it is presented to us much as it would be if the accused had been arrested, and had applied for a discharge on habeas corpus.

Perjury is committed "when a lawful oath is administered, in some judicial proceeding, to a person who swears wilfully, absolutely, and falsely, in a matter material to the issue or point in question." 3 Inst. 164; 4 Bl. Com. 137; People v. For 25 Mich. 492. By this is meant that the oath must be inaterial: the facts sworn to may be material, and yet the false swearing be no perjury because the oath performed no office in the case, and was wholly unimportant and immaterial. This point is well illustrated, in the case of People v. Fox, just referred to. Fox was informed against for having made a false affidavit in a suit at law pending in the circuit court for the county of Branch wherein he affirmed that one of the defendants in said suit did not execute the obligation sued upon. The fact sworn to was material, but it did not appear from the information that the affidavit was made to be used in the case, or that it actually was used, or that it performed or was to perform any important office whatever in the case. It did not therefore appear that the oath was of any materiality. People v. Gaige 26 Mich. 30 is, if possible, still more directly in point. The alleged perjury was committed in swearing to a bill in chancery. It was averred that the facts sworn to were material, but the information did not show that the bill was one of a character required by law to be under oath, or that it was sworn to in order to be used as the foundation of any motion or other application to the court. So far as appeared, therefore, the oath was a merely idle ceremony, and its being taken in the case was of no importance. And it was held in that case that the defect in the information could not be supplied by proof showing that the bill was in fact sworn to in order that it might be used as the foundation for a motion for an injunction.

The alleged perjury in this case consists in swearing to an answer to a bill in chancery filed against a corporation. Wheaton was not a party defendant, but signed and swore to the answer as general manager of the corporation. A few

The

general principles, it seems to us, must govern the case. answer of a corporation is not required to be sworn to, but is put in without oath under the corporate seal. Wych v. Meal 3 P. Wms. 310; Dummer v. Chippenham 14 Ves. 245; Haight v. Proprietors, etc., 4 Wash. 601; Vermilyea v. Bank, etc., 1 Paige 37; Baltimore etc. R. R. Co. v. Wheeling 13 Grat. 40. If a discovery is required, individual members of the corporation may be called upon to answer under oath, but for that purpose it is necessary that they be named as defendants in the bill. Brumly v. Westchester etc. Co. 1 Johns. Ch. 366; Buford v. Rucker 4 J. J. Marsh. 551; Dummer v. Chippenham, supra.

The bill in this case does not appear from the complaint to have been a bill for discovery. None of the officers of the defendant corporation was made a party, and therefore none of them was placed in a position demanding from him an answer under oath. It does not appear from the complaint that the answer was to be used for any purpose for which an oath to it could be of any importance. So far as appears, therefore, the oath of Wheaton to the answer was wholly an idle ceremony. The answer was no better with it than without it; it affected the issue in no manner whatever; it strengthened no statement made by the answer, and it made no statement evidence that would not have been evidence without it, and gave no statement weight or force that it would not otherwise have possessed. As an information the complaint would therefore have been fatally defective. People v. Gaige, supra.

But it is said that the actual showing before the justice may have been more full, and may have disclosed the fact that the answer was to be used as evidence in some collateral proceeding or on some motion. This may be admitted, and it may also be admitted that the warrant is not so defective in its allegations as to be void. The fact remains that it is perfectly consistent with all the facts set forth in the complaint that no perjury has been committed. The application is to compel the sheriff of one of the counties in the Upper Peninsula to serve a warrant in the city of Detroit. The

distance is considerable when the most direct route can be taken, but the warrant could not have been executed at the time the application was made without taking the defendant several hundred miles through other states. When the defendant should be brought before the justice and should move for a discharge on the ground of a defective complaint, he would be entitled to it as a matter of right. Under these circumstances it seems plain that justice does not require the service of this warrant.

It is not improbable that a better complaint could be made if the defendant were to be discharged from this; but if so, it can be made now as well. Indeed it would seem that there had already been sufficient time for that purpose, for it is more than a year since this warrant was issued. We cannot compel the officer to take the defendant several hundred miles on the mere chance that papers now showing by their recitals no crime may be made complete by the proof of facts which do not as yet appear to have been put in evidence before the justice.

The writ of mandamus must be denied.

The other Justices concurred.

LORETTA E. McCULLOUGH V. HIRAM DAY, ESTHER DAY AND

WILLIAM DAY.

Bill in aid of execution-Non-leviable property.

A bill in aid of execution cannot be so drawn as to reach property that is not leviable if filed while the execution is still in force and before it is returned.

Where a bill in aid of execution is sustained as to part of the property it is filed to reach, but is dismissed as to the rest, and only the defendant appeals, it is understood that complainant's claim to the latter description is not pressed.

Complainant in a bill in aid of execution filed to set aside a conveyance which defendant is alleged to have delivered after verdict had been