Obrazy na stronie

decreed. And, thirdly, he ought to retain and keep in his custody the originals of such acts and proceedings, commonly called the protocols (pwτa xwλa, the notes, or first draughts).


5. As a notary is a public person, so consequently all instru- Authentiments made by him are called public instruments; and a judicial city of his register of record made by him, is evidence in every court, ings. according to the civil and canon law. And a bishop's register establishes a perpetual proof and evidence, when it is found in the bishop's archives; and credit is given not only to the original, but even to an authentic copy exemplified. Ayl. Par. 386. And one notary public is sufficient fort he exemplification of any act; no matter requiring more than one notary to attest it. Id.

And the rule of the canon law is, that one notary is equal to the testimony of two witnesses. Gibs. 996.

6. [By 55 G. 3. c. 184. Sched. Part I. tit. FACULTY, the admis- Stamps. sion of a notary shall be upon a 30l. stamp.


every notarial act shall be on a 5s. stamp. Id. tit. NotaRIAL ACT, with progressive duty of 5s. on every sheet thereof after the first.]

Rovel disseisin.

THE writ of assise of novel disseisin (novæ disseisnæ) lieth,
where tenant for life, or tenant in fee simple, or in tail, is dis-
seised of his lands or tenements, or put out thereof against his
will. F.N.B. 408.

November the fifth. See holidays.
Nuncupative will. See



1. NONE shall bring into dispute the determinations of the Lawfulness church, concerning oaths to be taken in the ecclesiastical of an oath. or in the temporal courts; on pain of being declared an heretic. [4]

Arund. Lind. 297.

As we confess that vain and rash swearing is forbidden Christian men by our Lord Jesus Christ, and James his apostle; so we judge that Christian religion doth not prohibit, but that a man may swear when the magistrate requireth, in a cause of faith and charity, so it be done according to the prophet's teaching, in justice, judgment, and truth. Art. 39.

Oath ex officio.

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The giving of every oath must be warranted by act of parliament, or by the common law time out of mind. 2 Inst. 73.

2. The oath ex officio, is an oath whereby any person may be obliged to make any presentment of any crime or offence, or to confess or accuse himself or herself, of any criminal matter or thing, whereby he or she may be liable to any censure, penalty or punishment whatsoever.

By a canon of archbishop Boniface: Laymen shall be compelled by excommunication, if need be, to take an oath to speak the truth, when enquiry shall be made by the prelates and judges ecclesiastical, for the correction of sins and excesses. Lind. 109.

Afterwards, E. 4 J. In the time of the parliament, the lords of the council at Whitehall demanded of Popham and Coke chief justices, upon motion made by the commons in parliament, in what cases the ordinary may examine any person ex officio upon oath. And upon good consideration and view of the books, they answered to the lords of the council at another day in the council chamber: 1. That the ordinary cannot constrain any man, ecclesiastical or temporal, to swear generally to answer to such interrogatories as shall be administered unto him; but ought to deliver to him the articles upon which he is to be examined, to the intent that he may know whether he ought by the law to answer to them. And so is the course of the chancery; the defendant hath a copy of the bill delivered unto him, or otherwise he need not answer it. 2. That no man, ecclesiastical or temporal, shall be examined upon the secret thoughts of his heart, or of his secret opinion; but something ought to be objected against him, which he hath spoken or done. 3. That no layman may be examined ex officio, except in two causes (matrimonial and testamentary); and that was grounded upon great reason for laymen for the most part are not lettered, wherefore they may easily be inveigled and intrapped, and principally in heresies and errors. 12 Co. 26.

Again, H. 13 J. Dighton and Holt's case. They were committed by the high commissioners, because they refused to take the oath ex officio; whereupon an habeas corpus being awarded, it was returned, that they were committed, because they being convented for slandrous words, against the book of common prayer and the government of the church, and being tendered the oath to be examined upon these causes, they refused, and were therefore committed. And after three terms deliberation, the court now gave their resolution, that they ought to be delivered. And the reason thereof Coke chief justice declared to be, because this examination is made to cause them to accuse themselves of the breach of a penal law; which is against law, for they ought to proceed against them by witnesses, and not inforce them to take an oath to accuse themselves. Cro. Ja. 388.

Finally, by the statute of 13 C. 2. c.12. it is enacted, that it shall not be lawful for any person exercising ecclesiastical jurisdiction, to tender or administer to any person whatsoever, the oath usually called the oath ex officio, or any other oath, whereby such person to whom the same is tendered or administered, may be charged or compelled to confess, or accuse, or to purge him or herself of any criminal matter or thing, whereby he or she may be liable to censure or punishment.

But in other cases, where the course of the ecclesiastical courts hath been, to receive answers upon oath, they may still receive them. And therefore in the case of Hern and Brown, T. 31 C. 2. where a suit was for payment of the proportion assessed towards the repair of the church, the defendant offering to give in his answer, but not upon oath, prayed a prohibition, because it was refused. The court, after hearing arguments, denied the prohibition; for they said, it was no more than the chancery did to make defendants answer upon oath in such like cases. Gibs. 1011. 1 Ventr. 339.

And some years before that, in the case of Goulson and Wainwright, it was held by the court, that if articles ex officio are exhibited in the spiritual court for matters criminal, and the party is required to answer upon oath, he may have a prohibition: but [ 6 ] if it be a civil matter, he cannot do so, for then he is bound to answer. Gibs. 1011. 1 Sid. 374.

3. The oath of calumny was required by the Roman law, of Oath of all persons engaged in any lawsuit, obliging both plaintiffs and calumny. defendants, at the beginning of the cause, to swear that their demands and their defences were sincere and upright, without any intention to give unnecessary trouble, or to use quirks and cavils. 1 Domat. 439.

And by a legatine constitution of Otho it is thus ordained: The oath of calumny, in causes ecclesiastical and civil, for speaking the truth in spirituals whereby the truth may be more easily discovered, and causes more speedily determined, we ordain for the future to be taken in the kingdom of England, according to the canonical and legal sanction, the custom obtained to the contrary notwithstanding. Athon. 63.


The oath of calumny] Which oath was this: "You shall 66 swear, That you believe the cause you move is just: That 66 you will not deny any thing you believe is truth, when "are asked of it: That you will not (to your knowledge) use "any false proof: That you will not out of fraud request any "delay, so as to protract the suit: That you have not given or promised any thing, neither will give or promise any thing, in "order to obtain the victory, except to such persons to whom "the laws and the canons do permit: So help you God." Conset. 91


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Of calumny] Jusjurandum calumniæ; sc. vitandæ for the avoiding of calumny. Athon. 60.

To be taken] And this both by the plaintiff and the defendant. Which if they shall refuse respectively, the plaintiff in such case shall lose his cause, and the defendant shall be taken as having confessed. Athon. 60.

The custom obtained to the contrary notwithstanding] By this it appeareth, that by the custom of the realm of England the oath of calumny was not to be administered. Nevertheless this custom was not so general as in this canon is alleged. The case was thus: Laymen were free by the custom of the realm from taking of that oath, unless it were in causes matrimonial and testamentary; and in those two cases the ecclesiastical judge might examine the parties upon their oath, because contracts of matrimony, and the estates of the dead, are many times secret, and do not concern the shame and infamy of the party, as adultery, incontinency, simony, heresy, and such like. And this appeareth by two writs in the register, directed to the sheriff, to prohibit the ordinaries from calling laymen in that oath against their wills, except in those two cases. 2 Inst. 657. 12 Co. 26. Gibs. 1011.

But this custom extended not to those of the clergy, but to lay people only; for that they of the clergy, being presumed to be learned men, were better able to take the oath of calumny. 2 Inst. 657.

But if, in a penal law, the jurisdiction of the ordinary be saved, as by 1 Eliz. for hearing of masses, or by 13 Eliz. for usury, or the like, neither clerk nor layman shall be compelled to take the oath of calumny; because it may be an evidence against him at the common law, upon the penal statute. 2 Inst. 657. 12 Co. 27.

This oath had long continuance in the ecclesiastical court: and it had the warrant of an act of parliament, in 2 H. 4. c. 15. whereby it was enacted, that diocesans shall proceed according to the canonical sanctions; which act was repealed by 25 H. 8. c. 24. but was revived in the reign of queen Mary, and then all the martyrs who were burnt were examined upon their oaths; and then again by the 1 Eliz. c. 1. it was finally repealed. And the matter touching this oath at this day standeth thus: It is confessed, as well by the said provincial constitution of Otho, as by the register, that the said constitution was against the custom of the realm and no custom of the realm can be taken : away by a canon of the church, but only by act of parliament; and especially in case of an oath, which is so sacred a thing, and which generally concerneth all the nobility, gentry, and commonalty of the realm of both sexes: And by the statute of the 25 H. 8. c. 19. no canon against the king's prerogative, the law, statutes, or cus

tom of the realm, is of force; which is but declaratory of the common law. 2 Inst. 658. 12 Co. 29.

So that the result of the matter, upon these premises, will be this: So far as this constitution was against the custom of the realm, it is of no avail: so far as it is warranted by the custom, it is still of force; and consequently extendeth to the clergy, and to laymen in cases matrimonial and testamentary, and also to persons who take the said oath voluntarily, and not by compulsion.

any assent

For the writs in the register do only require, that laymen be [ 8 ] not compelled to answer against their will; so that if to it, and take it without exception, this standeth with law. 12 Co. 27.

4. The voluntary or decisive oath, is given by one party to the other, when one of the litigants, not being able to prove his charge, offers to stand or fall by the oath of his adversary; which the adversary is bound to accept, or to make the same proposal back again, otherwise the whole shall be taken as confessed by him. Wood Civ. L. 314. (b)

And this seemeth to have some foundation in the common law, in what is called waging of law; which is a privilege that the law giveth to a man, by his own oath to free himself, in an action of debt upon a simple contract. 1 Inst. 155, 157. 2 Inst. 45. But this oath, in the ecclesiastical courts, is now obsolete, and out of use. 1 Ought. 176.

The volun

tary or de

cisive oath.


5. The oath of truth, is when the plaintiff or defendant is Oath of sworn upon the libel or allegation, to make a true answer of his knowledge as to his own fact, and of his belief of the fact of others. This differs from the former, for it is not decisive; and the plaintiff or defendant may proceed to other proofs, or prove the contrary to what is sworn. Wood Civ. L. 314.

6. The oath of malice, is when the party proponent swears Oath of that he doth not propose such a matter or allegation, out of malice. malice, or with an intent unnecessarily to protract the cause. 1 Ought. 158.

And this oath may be administered at any time during the suit, at the judge's discretion, whether the parties consent to it

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7. The necessary or suppletory oath, is given by the judge to Suppletory the plaintiff or defendant, upon half proof already made. This oath. being joined to the half proof supplies, and gives sufficient power to the judge to condemn or absolve. It is called the necessary oath, because it is given out of necessity, at the instance of the party, whether the other party will consent to it or not. But

(b) Qui jusjurandum defert prior de calumnia debet jurare si hoc exigatur. Dig. 12. 2. 34. § 4.

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