Page images
PDF
EPUB

this day we call him a notary publick, who confirms and attests the truth of any deeds or writings, in order to render the same authentick. Ayl. Par. 382.

The law books give to a notary several names or appellations; as, actuarius, registrarius, fcriniarius, and such like. All which words are put to fignify one and the same person. But in England, the word registrarius is confined to the officer of some court, who has the custody of the records and archives of such court; and is oftentimes distinguished from the aftuary thereof. But a register ought always to be a notary publick; for that seems to be

a neceffary qualification of his office. How appointed. 2. A notary publick is appointed to this office by the

archbishop of Canterbury; who in the instrument of apa pointment decrees, that " full faith be given, as well in

as out of judgment, to the instruments by him to be “ made." Which appointment is also to be registred and subscribed by the clerk of bis majefty for faculties in Chan

cery. i Ought. 486. Ayl. Par. 385. How tworn,

3. A notary on his appointment must swear, " that he will faithfully exercise the office of notary publick ; that he will faithfully make contracts, wherein the consent of parties is required, by adding or diminishing nothing, without the will of the parties, that may alter the sub. stance of the fact; that if in making any inftrument the will of one party only is required, he will in such case add or diminish nothing that may alter the fubstance of the fact, against the will of such party; that he will not make instruments of any contract, in which he mall know there is a violence or fraud; that he will reduce contracts into an instrument or register; and after he shall have so reduced the fame, that he will not maliciously delay to make a publick instrument thereupon, against the will of him or them, on whose behalf such contract is to be so drawn :

Saving to himself his just and accustomed fees.” His office in the 4. A notary publick (or actuary) that writes the acts conteftation of of court, ought not only to be chosen by the judge, but fuit.

approved also by each of the parties in fuit; for tho'ic does of common right belong to the office of the judge, to assume and choose a notary for reducing the acts of court in every cause into writing, yet he may be refused by the litigants : for the use of a notary was intended, not only on account of the judge, to help his memory in the cause, but alfo that the litigants might not be injured by the judge. Ayl. Par. 382.

And

And particularly, the office of a notary in a judicial cause is employed about three things : Firit, He ought to regifter and inroll all the judicial acts of the court, according to the decree and order of the judge, feting down in the act the very time and place of writing the same. Secondly, He ought to deliver to the parties, at their especial request, copies and exemplifications of all such judicial acts and proceedings, as are there enacted and decreed. And thirdly, He ought to retain and keep in his custody the origioals of such acts and proceedings, commonly called the protocols (apulce xwho the notes, or first draughts.)

5. As a notary is a publick perfon, lo consequently all Authenticity of inftruments made by him are called publick inftruments;

bis proceedings. and a judicial regifter or record made by him, is evidence in every court, 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 authentick copy exemplified. Ayl. Par. 386.

And one notary publick is sufficient for the exemplifica. tion of any act; no matter requiring more than one notary to atteft it. Id.

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

6. By the several stamp acts, the admission of a notary Stamps, shall be upon a treble 40 s. stamp (6).

And every notarial aa shall be on a 2 s. stamp.

Novel diñeiūn.

HE writ of affife of novel diffeisin (novæ diffeisina)

lieth, where tenant for life, or tenant in fee fimple, or in tail, is diffeised of his lands or tenements, or put out thereof against his will. F. N. B. 408.

November the fifth. See Holidays.

Noncupative will. See Wills.

[blocks in formation]

4

Lawfulness of an oath.

1. NONE fhall bring into dispute the determinations

of the church, concerning oaths to be taken in the ecclefiaftical or in the temporal courts; on pain of being declared an heretick. Arund. Lind. 297.

As we confess that vain and raih swearing is forbidden christian men by our Lord Jesus Christ, and James his apostle ; fo 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 jultice, judgment, and truth. Art. 39.

The giving of every oath must be warranted by act of parliament, or by the common liw time out of mind. 2 Inft. 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 ecclésiapical, for the correction of fins and excelles.

Oath ex officio.

Lind. 109.

Afterwards, E. 4.7. 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 Jords of the council at another day in the council chamber: 1. That the ordinary cannot constrain any man, ecclefiaftical or temporal, to swear generally to answer to such interrogatories as Iball 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 to an. swer it. 2. That no man ecclefiaftical or temporal, fhall be examined upon the secret thoughts of his heart, or of his secret opinion; but something ought to be oba jected against him, which he hath (poken or done. 3. That no layman may be examined ex officio, except in

two !

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 herefies and errors, 12 Co. 26.

Again, H. 13 . 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 commit. ted, because they being convented for flandrous 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 ftatute of 13 C. 2. C. 12. it is enacted, that it shall not be lawful for any person exercising ecclefioffical jurisdiction, to tender or adminifler to any person whatfoever, the oath usually called the oath ex officio, or any other eeth, whereby such person to whom the fame is tendered or ada miniftred, may be charged or compelled 10 confess, or accuse, er 10. purge him or her felf of any.criminal matter er thing, whereby he or she may be liable to censure or punijbmeni.

But in other cases, where the course of the ecclefiaftical courts hath been, to receive answers upon oath, they may ftill receive them. And therefore in the case of Hein and Brown, T. 31 C. 2. where a suit was for pay. ment of the proportion afseffed 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. Gibf. 101. Venir. 339.

And some years before that in the case of Gouljon and Wainwright, it was held by the court, that if articles ex off.cis are exhibited in the spiritual court for matters ori. minal, and the party is required to answer upon oath, he B 3

may

į Sid. 374.

Oath of calumny.

6 swear,

may have a prohibition : but if it be a civil matter, he cannot do so, for then he s bound to answer. Gibl. 1011.

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

And by a legatine conftitution of Otho it is thus ordained : The oath of calumny, in caufes ecclefiaftical and civil, for speaking the truth in Spirituals whereby the truth may be more cafily discovered, and causes more speedily determined, we ordain for the future to be aken in the kingdom of England, according to ihe canonical and legal sanction, the custom obtained to the contrary notwithstanding. Athon. 60. The oath of calumny) Which oath was this : “ You shall That

you

believe the cause you move is just : “ That you will not deny any thing you believe is truth, “ when you 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 “ fuit : That you have not given or promised any thing, “ neither will give or promise any thing, in order to ob“ tain the victory, except to such persons, to whom the “ laws and the canons do permit i So help you God."

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

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

The cufiom oblained to the contrary notwithfianding] By this it appeareth that by the custom of the realm of England, the oath of calumny was not to be administred. 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 teftamentary; and in those two cases, the ecclefiaftical judge might examine the parties upon their oath, because contracts of matrimopy, and the estates of the dead, are many times secret,

and

Conet. 91.

« PreviousContinue »