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the affiant's opinion, more solemn and obligatory, the officer may, in his discretion, adopt that mode." And one believing in any other than the Christian religion may be sworn according to its peculiar ceremonies."
Subject to the foregoing qualifications a party has the right to insist that the usual common law mode of administering an oath, “ by the person who swears laying his band upon the gospels,” be observed ;74 unless the affiant desires to dispense with that act of reverence, in which case the formula must be, “ You do swear in the presence of the ever-living God,” while the affiant lifts his hand or not, at his option.
3. Overt act or oral declaration necessary.] – To make a valid oath, for the falsity of which an indictment for perjury will lie, there must be, in some form, in the presence of an officer author. ized to administer the oath, an unequivocal and present act by which the affiant takes upon himself the obligations of an oath. The silent delivery of a signed affidavit to the officer, who there upon signs the jurat, is not sufficient for this purpose; and is not made so by the intention of the one party or the supposition of the other. 75
72 N. Y, Code Civ. Pro., § 848.
So in Rule 91 of the U. S. Ct. Equity Rules. (Jones Fed. Rules, 150.) “Whenever, under these rules, an oath is or may be required to be taken, the party may, if conscientiously scrupulous of taking an oath, in lieu thereof make solemn aflirmation to the truth of the facts stated by him.”
73 Id., § 849. State 1. Chyo Chiagk, 92 Mo. 395, 4 S. W. Rep. 704.
For proper oath in the case of Jews, and in the case of idolators, see Fryatt 1. Lindo, 3 Edw. 239; People 1". Jackson, 3 Park. Crim. 590. See also note in 1 City Ct, Rep. 290, on judicial oaths.
it By an amendment to $ 845, Code Civ. Pro., in 1899, the practice of kissing the gospels has been dispensed with.
75 O'Reilly v. People, 86 N. Y. 154, 40 Am. Rep. 525; s. C., 10 Abb. N. C. 53, with note as follows: As affidavits are so frequently authenticated in this loose manner, it may be of interest to inquire whether, in case of falsity of an affidavit used to obtain a civil remedy, there is any other remedy than indictment. As to proceedings for contempt, see Code Civ. Pro., $88, 14; Matter of Stacy, 10 Johns. 328; Bonesteel v. Lynde, 8 How. Pr. 226; Yates 1. Lansing, 9 Johns. 395, afl'g, 5 id. 282, and Yates v. People, 6 id. 336, revig, Matter of Yates, 4 id. 317; article on Contempt, 20 Am. Law Reg. (N. S.) 84; Wilmerdings v. Fowler, 14 Abb. Pr. (N. S.) 249, aff'g Fowler v. Lowenstein, 7 Lans. 167; and see further proceedings in that case in 15 Abb. Pr. (N. S.) 86. As to whether fraud or perjury in obtaining a decision is a ground of action, see also Stilwell v. Carpenter, 2 Abb. N. C. 238, and cases cited in 1 Abb. N. C. 232.
The decision in Moffatt 1. Herman, 17 Abb. N. C. 62, that to put in a false verified pleading is a contempt, was reversed in Id. 107.
The Code section (845) requires that the witness shall “ express assent to the oath."
4. Religious belief. ]- No witness is incompetent on account of his religious belief ;+6 but although no witness is to be required to declare his religious belief as a condition of being sworn," this restriction does not prevent the court or officer about to administer an oath from inquiring of the person what peculiar ceremonies in swearing he deems most obligatory."
5. Mental competency.]— Before administering an oath to an infant or a person who is apparently or is suggested to be of weak intellect, the court or officer may examine him to ascertain his capacity and the extent of his knowledge of the significance of an oath or affirmation.
6. Jurat or record.]— It is usual, though not essential in American practice, to indicate in the jurat or minutes which record the act, whether it was an oath or an affirmation; but in legal effect an affirmation is the equivalent of an oath when taken on account of religious scruples against the oath, and a certificate or statement using the word sworn is valid in case of affirmation, though it may lead to inconvenience.
The statement in a jurat or minutes that a person was affirmed, does not in American practice necessitate adding a statement that he first declared that he had religious scruples against being sworn in any form, but the fact will be presumed in support of the record. 80
7. Irregularities.]—A person swearing, affirming, or declaring in any form where an oath is authorized by law, is lawfully sworn, though laying the hand upon the gospels be omitted ;81 and
76 N. Y. Const. of 1895, art. 1, $ 3. See Clinton v. State, 33 Ohio St. 27; Blocker v. Burness, 2 Ala. 354. 77 This is the rule in New York under the constitutional amendment.
For the English rule, see Atty.-Gen. v. Bradlaugh, 14 L. R. Q. B. Div. 667; s. C., 54 L. J. Q. B. 205.
78 N. Y. Code Civ. Pro., § 850, last clause. It is improper, however, to permit a witness to be cross-examined upon his religious belief. See Brink v. Stratton, 176 N. Y. 150.
79 N. Y. Code Civ. Pro., $ 850. The statute stops with the word “knowl. edge,” but neither knowledge of the matters to be sworn to nor general knowledge is meant.
80 The English rule seems to be different. Matter of Prince Henry, LXIX of Reuss-Köstritz, 49 L. J. Prob. Div. 67. And in New Jersey. State v. Putnam, 1 N. J. Law, 260.
81 Y. Y. Code Civ. Pro., § 851.
a departure from the statute, to which no objection is made at the time, does not necessarily vitiate the oath.82
FORM No. 89.
Oath taken upon the Evangelists. [The officer extends the book to the affiant, who takes hold of it, and the officer says: ] “You do solemnly swear, that * [here state the object of the oath, e. g., thus:] the matters stated in this affidavit subscribed by you are true. So help you God.”
FORM No. 90.
Oath taken by uplifting the hand. [The affiant raises his right hand or not at his option,83 and the officer says:] “You do swear, in the presence of the everliving God, that * the matters stated in this affidavit subscribed by you are true.”
[And the affiant responds usually with the words, “I do.”]
FORM No. 91.
[The officer says:] “You do solemnly, sincerely, and truly declare and affirm, that” [etc., as in preceding Form).
FORM No. 92.
Oath or affirmation of witness to be interrogated on a particular subject.
[Substitute in preceding forms at the asterisk] that you will true answers make to the questions that shall be put to you concerning [here state the matter, e. g., thus] your property.
FORM No. 93.
Another form, where witness is about to testify on a trial. [Insert in preceding forms] that the evidence you shall give
82 People v. Cook, 8 N. Y. 67. (Using hymn-book instead of the gospels, by mistake.)
U. S. v. Baer, 18 Blatchf. (U. S.) 493, 6 Fed. Rep. 42; Dunlap v. Clay, 65 Miss. 454, 4 So. Rep. 118; 8. C., 8 Chic. L. N. 6. (Omission of the words " in the presence of the ever-living God.”)
Pullen v. Pullen (N. J., 1886), 4 Atl. Rep. 82. (Omitting to kiss the book).
83 Under N. Y. statute.
Code Civ. Pro., § 846.
in this issue joined between84 A. B., plaintiff, and Y. Z., defendant, shall be the truth, the whole truth, and nothing but the truth. So help you God.
84 To use the words “in relation to the matters of difference here de. pending between,” etc., or words of like import, rather than a reference to the issues joined between the parties, may be preferable, because the
issues existing at the time of administering the oath may be changed by amendment during the testimony. But the above form is the one usually employed.
ORDERS. [In order to save space by avoiding repeated reference to the useful clauses common to orders for a great variety of purposes, there are here gathered all the points which it seems desirable to treat as characteristic of orders generally. Matters peculiar to orders for particular purposes will be found illustrated by the forms given for those purposes in other parts of the work.
It will be seen that orders have this peculiarity (in common, to some extent, with judgments), that the recitals often the only assurance the practitioner has that the advantage secured to him by the substantive provisions or ordering parts will be permanent. Probably the success or failure of appeals, or motions to get rid of orders, has been more frequently determined by the recitals than by any other point in the form or regularity of the paper.
The practitioner will be repaid by a careful attention to the illustrations of recitals here given, and to the principle involved, which will at once suggest others appropriate to cases of less frequent occurrence.
It is to be remembered, however, that the recitals rarely have any bearing on the validity of the order and an order without recitals cannot be disre. garded on that account, unless it may be the tribunal has only a limited special jurisdiction, or where, if ever, some statute makes not only the fact which might have been recited, but also the reciting of it, indispensable to jurisdiction or validity.]
I. NATURE OF AN ORDER. 1. What is an order. 2. Practical requisites. 3. Distinction between orders and
judgments. 4. Order on the minutes in open
court. 5. Distinction between orders and
rulings. 6. Orders by consent, without ap
plication to court. 7. consent as to form. 8. as to facts. 9. Consent for party non sui juris. 10. Consent to hearing by judge
having no jurisdiction. 11. Orders of court or of judge. 12. — trial term; special term ad
journed to chambers.
15. — order of judge not available
as court order. 16. - form of judge's order; ap
parent court order may avail. 17. court motion heard at cham
bers by stipulation.
sent. 24. in order by default of party
moved against. 25. — in order dismissing motion
for default of moving party.