How appointed. How fworn, His office in the fuit. this day we call him a notary publick, who confirms and attefts the truth of any deeds or writings, in order to render the fame authentick. Ayl. Par. 382. The law books give to a notary feveral names or appellations; as, actuarius, registrarius, feriniarius, and fuch like. All which words are put to fignify one and the fame perfon. But in England, the word regiftrarius is confined to the officer of fome court, who has the custody of the records and archives of fuch court; and is oftentimes diftinguished from the actuary thereof. But a register ought always to be a notary publick; for that feems to be a neceffary qualification of his office. 2. A notary publick is appointed to this office by the archbishop of Canterbury; who in the inftrument of appointment decrees, that full faith be given, as well in "as out of judgment, to the inftruments by him to be "made." Which appointment is alfo to be registred and fubfcribed by the clerk of his majefty for faculties in Chancery. 1 Ought. 486. Ayl. Par. 385. 3. A notary on his appointment muft fwear," that he will faithfully exercife the office of notary publick; that he will faithfully make contracts, wherein the confent of parties is required, by adding or diminishing nothing, without the will of the parties, that may alter the fubftance of the fact; that if in making any inftrument the will of one party only is required, he will in fuch cafe add or diminish nothing that may alter the fubftance of the fact, against the will of fuch party; that he will not make inftruments of any contract, in which he fhall know there is a violence or fraud; that he will reduce contracts into an inftrument or regifter; and after he shall have so reduced the fame, that he will not maliciously delay to make a publick inftrument thereupon, against the will of him or them, on whofe behalf fuch contract is to be fo drawn: Saving to himself his juft and accustomed fees." 4. A notary publick (or actuary) that writes the acts conteftation of of court, ought not only to be chofen by the judge, but approved alfo by each of the parties in fuit; for tho' it does of common right belong to the office of the judge, to affume and choose a notary for reducing the acts of court in every caufe into writing, yet he may be refused by the litigants for the ufe of a notary was intended, not only on account of the judge, to help his memory in the caufe, 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 caufe is employed about three things: Firft, 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 fame. Secondly, He ought to deliver to the parties, at their especial requeft, copies and exemplifications of all fuch judicial acts and proceedings, as are there enacted and decreed. And thirdly, He ought to retain and keep in his cuftody the originals of fuch acts and proceedings, commonly called the protocols (ngula nwha the notes, or firft draughts.) 5. As a notary is a publick perfon, fo confequently all inftruments made by him are called publick inftruments; 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 fufficient for the exemplification 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 witneffes. Gibf. 996. Authenticity of his proceedings. 6. By the feveral ftamp acts, the admiffion of a notary Stamps. fhall be upon a treble 40 s. ftamp (b). And every notarial act shall be on a 2 s. stamp. Novel diffeilin. HE writ of affife of novel diffeifin (nova diffeifina) or in tail, is diffeifed 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. (b) By fubfequent acts, in all 81 B 2 Daths. Daths. 1. NONE fhall bring into difpute the determinations Lawfulness of an oath. I. Oath ex officio. 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 rafh fwearing is forbidden chriftian men by our Lord Jefus Chrift, and James his apostle; fo we judge that christian religion doth not prohibit, but that a man may fwear when the magiftrate requireth, in a caufe of faith and charity, fo it be done according to the prophet's teaching, in justice, judgment, and truth. Art. 39. The giving of every oath muft be warranted by act of parliament, or by the common law time out of mind. 2 Inft. 73. 2. The oath ex officio, is an oath whereby any perfon may be obliged to make any prefentment of any crime or offence, or to confefs or accufe himself or herself, of any criminal matter or thing, whereby he or she may be liable to any cenfure, penalty or punishment whatsoever. By a canon of archbishop Boniface: Laymen fhall be compelled by excommunication, if need be, to take an oath to Speak the truth, when enquiry fhall be made by the prelates and judges ecclefiaftical, for the correction of fins and excesses. Lind. 109. Afterwards, E. 47. In the time of the parliament, the lords of the council at Whitehall demanded of Popham and Coke chief juftices, upon motion made by the commons in parliament, in what cafes the ordinary may examine any perfon ex officio upon oath. And upon good confideration 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 conftrain any man, ecclefiaftical or temporal, to fwear generally to answer to fuch interrogatories as fhall 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 fo is the courfe of the chancery; the defendant hath a copy of the bill delivered unto him, or other wife he need not to anfwer it. 2. That no man ecclefiaftical or temporal, fhall be examined upon the fecret thoughts of his heart, or of his fecret opinion; but fomething ought to be objected against him, which he hath spoken or done. 3. That no layman may be examined ex officio, except in two two caufes (matrimonial and teftamentary); and that was grounded upon great reafon for laymen for the most part. are not lettered, wherefore they may eafily be inveigled and intrapped, and principally in herefies and errors. 12 Co. 26. Again, H. 13 J. Dighton and Holt's cafe. They were committed by the high commiffioners, 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 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 refufed, and were therefore committed. And after three terms deliberation, the court now gave their resolution, that they ought to be delivered. And the reafon thereof Coke chief juftice declared to be, because this examination is made to cause them to accufe 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. Fa. 388. Finally, by the ftatute of 13 C. 2. c. 12. it is enacted, that it shall not be lawful for any perfon exercifing ecclefiaftical jurifdiction, to tender or adminifler to any perfon whatfoever, the oath usually called the oath ex officio, or any other eath, whereby fuch perfon to whom the fame is tendered or adminiftred, may be charged or compelled to confefs, or accufe, or to purge him or herself of any criminal matter or thing, whereby he or she may be liable to cenfure or punifoment. But in other cafes, where the courfe of the ecclefiaftical courts hath been, to receive anfwers upon oath, they may fill receive them. And therefore in the cafe of Hern and Brown, T. 31 C. 2. where a fuit was for payment of the proportion affeffed towards the repair of the church, the defendant offering to give in his anfwer, but not upon oath, prayed a prohibition, because it was refufed. The court, after hearing arguments, denied the prohibition; for they faid, it was no more than the chancery did to make defendants anfwer upon oath in fuch like cafes. Gibf. 1011. 1 Ventr. 339. And fome years before that in the cafe of Goulfon and Wainwright, it was held by the court, that if articles ex officio are exhibited in the fpiritual court for matters criminal, and the party is required to anfwer upon oath, he Oath of calumny. Daths. may have a prohibition: but if it be a civil matter, he 3. The oath of calumny was required by the Roman And by a legatine conftitution of Otho it is thus ordained: The oath of calumny, in caufes ecclefiaftical and civil, for fpeaking the truth in fpirituals whereby the truth may be more eafily difcovered, and caufes more speedily determined, we ordain for the future to be taken in the kingdom of England, according to the canonical and legal fan&tion, the cuftam obtained to the contrary notwithstanding. Athon. 60. The oath of calumny] Which oath was this: "You fhall fwear, 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 falfe proof: That you will not "out of fraud request any delay, fo as to protract the fuit: That you have not given or promised any thing, "neither will give or promife any thing, in order to ob"tain the victory, except to fuch perfons, to whom the "laws and the canons do permit: So help you God." Confet. 91. Of calumny] Jusjurandum calumniæ; fc. vitanda: for the avoiding of calumny. Athon. 60. To be taken] And this both by the plaintiff and the defendant. Which if they fhall refuse refpectively, the plaintiff in fuch cafe fhall lofe his caufe, and the defendant fhall be taken as having confeffed. Athon. 60. The custom obtained to the contrary notwithflanding] By this it appeareth that by the cuftom of the realm of England, the oath of calumny was not to be adminiftred. Nevertheless this custom was not fo general as in this canon is alleged. The cafe was thus: Laymen were free by the custom of the realm from taking of that oath, unless it were in caufes matrimonial and teftamentary; and in those two cafes, the ecclefiaftical judge might examine the parties upon their oath, because contracts of matrimopy, and the eftates of the dead, are many times fecret, and |