44 FEDEEAL REPOBTBR. �"Section 83, Every person who shall desire it shall be per- mitted to swear in the following f orm : ' You do swear in the presence of the ever-living God;' and, while so swearing, such person may or may not hold up his hand, in his dis- cretion." �The notary correctiy stated one form of oath prescribed by the statute, and he testified without objection that the form he gave was the only legal form, This evidence, coupled with his testimony that he is careful to use that form, and his certificate that the affidavit was sworn to, must have sat- isfied the jury that on this occasion he used that form. No other conclusion is consistent with the finding that an oath was taken, �The question whether an oath would have been taken if a different form had been employed was not raised by the objection to the admission of the affidavit in evidence, and is not presented by the record. If the court had been requested to instruct the jury that in order to convict they must find that the notary used the words, "in the presence of the ever- living God," and the request had been refused, such refusai would have raised the question that has been argued. But no such request was made. The case was allowed to go to the jury upon the evidence of the notary that there was but one legal form of administering an oath, and his testi- mony as to what, he did, His testimony was sufficient to warrant the jury m concluding that on the occasion in ques- tion he used the form descrlbed by him, and, the jury having 60 found, their finding should not be disturbed. �The motion is therefore denied. �Blatchfobd, 0. J., and Choatb, D. J,, concurred. ��� �
