McDonald v. Willis

• Decision Date: 24 January 1887
• Citation: 9 N.E. 835,143 Mass. 452
• Parties: McDONALD v. WILLIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

143 Mass. 452

9 N.E. 835

McDONALD v. WILLIS.

Supreme Judicial Court of Massachusetts, Middlesex.

January 24, 1887

COUNSEL

L.H. Wakefield, for respondent.

This case does not essentially differ from the case of Judd v. Tryon, 131 Mass. 345. In that case the oath was administered by an interested magistrate to two disinterested witnesses, when in this case the oath was administered by the attorney to his own principal in a matter in which such principal was a party, and, save there were two living bodies, it was the administration of an oath by a party to himself. The oath in such case is judicial, and not ministerial, and such proceedings have been repeatedly declared illegal and void. McGregor v. Crane, 98 Mass. 530; Taylor v. Hatch, 12 Johns. 340; Den v. Geiger, 9 N.J. Law 225; King v. Wallace, 3 Term R. 403.

S.A. Phillips and P.H. Cooney, for petitioner, cited Pub.St. c. 155, § 2; Id. c. 191, §§ 6, 8; White v. Duggan, 140 Mass. 18; S.C. 2 N.E. 110; Learned v. Riley, 14 Allen, 109; McGregor v. Crane, 98 Mass. 530; Lee v. Wells, 15 Gray, 459.

OPINION

BY THE COURT.

It is true that a man cannot be a judge and an attorney for one of the parties in the same cause. But it has always been the uniform usage for attorneys for either party to administer oaths, as justices of the peace, to their clients or others, when the necessity for voluntary affidavits arises in a case, and there is no sound objection to this when the oaths are voluntary, and the act of the justice is substantially ministerial and not judicial. In the case before us the act of the attorney of the petitioner in administering to him the oath to his certificate was substantially ministerial, and did not involve or require any hearing, decision, or adjudication. The act of the attorney was no more judicial than the taking an acknowledgment to a deed, and the superior court rightly ruled that the oath was sufficient. Exceptions overruled.