Heads of the oath TITLE CXXXVII. WHAT IS CONTAINED IN THE GENERAL OATH OF CALUM NY 2, AND IN THE SPECIAL OATH, WHICH IS THE OATH I. IN the oath it should be stated, 11. There are four kinds of oaths, which have been of frequent use in ecclesiastical courts, viz. 2. The oath of truth is that which litigant parties take, to answer truly the positions of a libel or allegation, according to the best of their knowledge and belief (as has been previously stated in tit. 89, § 3.) And it is also the oath which witnesses take, to depose to the truth, as far as their knowledge extends. (See tit. 105, § 7.) 3. The oath decisory, or conclusive of a cause, is that which one of the litigant parties tenders to the other, in order that the suit may be thereby terminated. (In other words, this 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 will be taken as confessed by him. Wood, Civ. Law, p. 314.) 4. But this oath decisory is never taken, that we hear of, in the present day. However, some mention is made of it, and some inquiries entered into respecting it, in part 2. tit. 234, § 6—9. though it may now be considered as obsolete. 5. The oath of calumny, and the oath of malice, are explained in this title, and also in tit. 124, § 7—9. 11—16. See Constit. Otho, ch. Jusjurandum Calumniæ. 6. The oath suppletory is treated of in the title succeeding this. 7. There are, besides, divers other oaths, occurring in every part of a suit. Such as, the oath of a proctor, that he has not looked into the depositions on the other side: and his oath, to satisfy the necessary expences of a suit. The oath of a party, (in order to obtain the benefit of absolution,) to obey the ecclesiastical laws, and to yield to the mandates of the church; his oath also on admission in the form of a pauper; his oath that some matters have but lately come to his knowledge; and his oath, that he believes he can prove his case. The oath of a creditor, as to his debt. The oath of an executor and administrator. The oath of any party as to an account. The oath of a churchwarden. The oath of questmen, or sidesmen. The oath of a curate. The oath of a preacher. The oath of a schoolmaster. The oath of a physician. The oath of a surgeon. The oath of a midwife, &c.—Oughton. 2 The oath of calumny means the oath " calumniæ vitandæ," the oath for the avoidance of calumny.-Ed. against ca 1st, That the party is persuaded his cause is just and good. 2dly, That, when interrogated, he will not deny what he lumny. believes to be the truth. 3rdly, That he will not knowingly advance any falsehood in proof. 4thly, That he will not fraudulently seek any delay, in order to protract the suit. 5thly, That he has given no bribe, and promised none; nor will he give any, or promise any, for the sake of gaining his cause. 6thly, And that he has only given fees to those persons whom the ecclesiastical laws and canons permit to receive them. These declarations are contained in the four following Latin verses: Illud juretur, quòd lis tibi justa videtur; II. Observe these rules are to be understood as applying only General to the general oath against calumny. III. Which oath should not be taken more than once in a cause and for the most part the time selected is immediately after contestation of suit 2. ' Conset thus renders these four Latin lines: You this shall swear, that this your suit doth seem Right just to be; at least in your esteem. That you, when ask'd, the truth will not deny ; Nor promise ought: Neither that knowingly You any false proofs will employ, Nor urge delays, the cause to annoy. Conset, 3. 2. 3. § 2. 2 If the plaintiff refuses this oath of calumny, &c. he is to desist from further prosecution of his action. If the defendant refuses it, then he is to be condemned, as one confessing the articles laid against him.-Athon. 60. If these oaths were duly administered, there would not be so many shameful delays in causes as there are, seeing nothing is more ordinary in these days than for a cause to depend, with the bare assignation to give in an answer, or to produce witnesses, or to propound all acts, &c., or to hear sentence, or the like, for sometimes three, four, five, or six court days; nay, sometimes for two or three terms, putting it off, with the same dependence from one day to another, to the great prejudice of the parties, who complain exceedingly of these abuses, pretending (justly) they never knew any end of their business, after it came into these courts.-Conset, 3. 2. 3. § 3. oath. Special oath. Oath against malice. IV. Should it, however, be then omitted, it may be required afterwards in any part of the suit. V. There is besides a special oath against calumny, called by a different name, the oath against malice. VI. This oath against malice may be administered as often as it seems fitting to the judge, (even against the will of the litigant parties) without reference to whether the suit has been contested or not contested, and without considering whether the general oath against calumny has been taken or not '. OATH SUPPLETORY. Oath suppletory, when taken. TITLE CXXXVIII. THE OATH SUPPLETORY OF THE PRINCIPAL PARTY 2. I. IF a plaintiff has not fully, but more than half, or at least 1 These oaths are to be administered not only to one, but to both or either of the parties. And these oaths, Mynsinger proves, from Cicero's Oratio pro Roscio, were usually administered to the parties before Justinian's time. There is only this difference between them, that the one may be administered at any time when there is occasion, the other only once. As to their form, authors prescribe one and the same in effect for both parties.-Conset, 3. 2. 3. § 2. 2 Sometimes it happens that there is not such full proof made as by law ought to be. Therefore, in this case, and in this part of the proceedings, the oath called the suppletory oath is wont to be administered. This oath is properly called, "Juramentum necessarium," the necessary oath, which, when there is a want of full proof, the judge, upon knowledge of the cause, though the parties request it not, may administer to either the plaintiff or defendant. And this necessary oath is divided into suppletory, to which this definition now given agrees, and purgatory, which oath the judge, (the cause being known,) may impose upon him, against whom the presumptions seem chiefly to press, &c. Now, when there is either nothing, or the whole matter, proved, then this oath need not be administered; but when there is half proof only, then this oath ought to be administered, either to the plaintiff or defendant, at the pleasure of the judge; when the plaintiff has one proof, and the defendant another, then this oath ought rather to be administered to the defendant, seeing we ought rather to incline to mercy than judgment.-Conset, 3. 5. 1. § 4. half, proved his case 1, he may appear before the judge under the following form, and take the following oath. (The proctor cannot take this oath, because he has no special mandate to do so in his general proxy). II. "I, N., without revocation of my proxy, allege, that I Allegation. have more than half, or at least half proved the case stated in my libel, &c., (or the case stated in such an allegation, referring myself to the acts of court, and to the laws ecclesiastical), and therefore, I pray, that the oath suppletory may be administered to me, and I require right and justice to be done me." III. Then the proctor of the adverse party should say, "I Protest. deny that these allegations are true, and I protest against them as null, and I allege, that such an oath should not be administered; referring myself to the laws. 3 IV. Then the judge assigns a term for receiving informations Assignaon the petition, and for delivering his judgment." tion. V. If it can be made apparent to the judge, that the allegations Admission. of the party applying to have the oath administered to him are true, (i. e. that his case has been more than half, or at least half, proved), he is bound to admit the oath suppletory, in all cases permitted by law. VI. It will be well, therefore, to consult learned advocates as to the cases in which this oath ought to be administered *. VII. The party taking this oath shall swear, "that of his certain knowledge the facts or statements are true, respecting which he applies to have the oath administered to him." plication. VIII. Observe, two things are here to be attended to. In the Time of apfirst place, that this oath should be applied for before the conclusion of the cause; and if it is not then administered, it should be again applied for after the conclusion. IX. For, in that case, the judge may administer the oath either before or after the conclusion: otherwise not ". X. In the second place; if the adverse party, against whom Application this oath is applied for, alleges and proves, that the party rejected. 1 See the case of Williams v. Lady Bridget Osborne, in Burn's Eccl. Law, vol. iii. p. 8-10.-Ed. 2 See § 7. of this title.-Oughton. 3 Both as to the fact, and as to the law.-Oughton. * If the cause is of a high nature, and there is a temptation to perjury; or if it is a criminal cause; or if more witnesses might be produced to the same fact; then this oath cannot take place.-Wood's Civil Law, p. 314. 5 i. e. unless the petition was made before the conclusion.-MS. Oughton. petitioning for the oath suppletory is a disreputable, and dishonourable person, guilty of some crime, or held in no esteem; then this oath is not to be administered in any case1. EXPENCES OF A RETARDED PROCESS. Retarded process. Allegation. TITLE CXXXIX. THE EXPENCES OF A RETARDED PROCESS, WHEN AND HOW I. If the plaintiff or defendant has proposed any defensive matter, in the form of an allegation, or exceptions, and the like, and on the admission of the same has had a term assigned for proof, by which the progress of the suit is retarded, (inasmuch as, pending this delay, the adverse party could make no application to the court in order to bring the cause to a conclusion), suppose the party proposing such defensive matter to fail in proof, on the lapse of the term probatory, the adverse party should say, 2 II. "I allege that N. has failed in proof of the allegation 1 The following observation is added in an ancient MS.: " Remark, if this oath has not been applied for before the conclusion in the cause, it can neither be applied for, nor admitted, after the conclusion, even in cases in which it would otherwise have been admissible."-Oughton. 2 1. In an ancient MS. there are the following additions: 2. If the party proposing the defensive allegation fails in proof, and after the lapse of the term probatory, the adverse party makes application to hear sentence on the first assignation in a summary suit, and to propound all acts in a plenary cause, in order to the conclusion, and that party which had previously given in the said matter, on the day assigned to hear sentence on the first assignation; or to conclude; or, on the lapse of the said term probatory, and before the adverse party has made application to hear sentence on the first assignation, or to conclude, has proposed some other matter, (no suitor of the court being precluded from adopting more modes of defence than one, although contrary to each other,) and has applied for a new term to be assigned him, to prove the same, the proctor of the adverse party, against whom such matter, or allegation, was given in, shall say, 3. "I allege that N. the party bringing forward this second statement, |