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though it does not expressly repeal, prior statutes. The Act is 30 and 31 Vict. c. 75 (1867), entitled An Act to remove certain Religious Disabilities affecting some of Her Majesty's Subjects, and to amend the Law relating to Oaths of Office.
1. Every subject of Her Majesty shall, after the passing of this Act, be eligible to hold and enjoy the office of Lord Chancellor of Ireland, or Lord Keeper or Lord Commissioner of the Great Seal in Ireland, without reference to his religious belief, on taking and subscribing the oath hereinafter substituted for the oath now required to be taken instead of the oaths of allegiance, abjuration, and supremacy, and also any other oath or declaration of office, not involving any religious test, which now is or from time to time may be required to be taken by the holder of the said office.
2. Provision when the office shall be held by a person not a member of the Established Church, as to the exercise of Church patronage.
3. Provision when the chancellorship shall be held by a person not a member of the Established Church.
4. Every person holding any judicial or civil or corporate office may attend and be present at any place of public meeting for religious worship in England, Ireland, or Scotland in the robe, gown, or other peculiar habit of his office, or with the ensign or insignia of or belonging to the same, without incurring any forfeiture of office or penalty for such attendance.
5. In all cases in which any oath which has been substituted for the oaths of allegiance, supremacy, and abjuration is now required to be taken, or taken and subscribed, as a qualification for the exercise or enjoyment of any office, franchise, or civil right, the following oath shall be taken, or taken and subscribed, as the case may be, in lieu and instead of such substituted oath :
*I, A. B., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, and I do faithfully promise to maintain and support the succession to the Crown, as the same stands limited and settled by virtue of the Act passed in the reign of King William the Third, intituled “ An Act for the further Limitation of the Crown, and better securing the Rights and Liberties of the Subject," and of the subsequent Acts of Union with Scotland and Ireland. So help me God.'
6. The name of the sovereign for the time being shall be used in the oath.
7. Every person of the persuasion of the people called Quakers, and every other person for the time being by law permitted to make a solemn affirmation or declaration instead of taking an oath, may, instead of taking and subscribing the oath hereby appointed, make and subscribe a solemn affirmation in the form of the oath hereby appointed, substituting the words, “solemnly, sincerely, and truly declare and affirm,' for the word 'swear,' and omitting the words • 80 help me God;' and the making and subscribing such affirmation, with such substitution as aforesaid, by a person hereby authorized to make and subscribe the same, shall have the same effect as the making and subscribing by other persons of the oath hereby appointed.
8. This Act may be cited for all purposes as * The Office and Oath Act, 1867.'
Note.-It will be noticed that no mention is made in this Act, or in the 21 and 22 Vict. c. 48, as to the subscription of the assurance.
ABORTION. The giving of medicines, or application of force, to procure abortion, is not murder of the child, though previously quick in the womb. But it is murder if the woman herself dies from the effects. “A man and woman had sentence of transportation for seven years, for occasioning abortion in the fifth or sixth month of pregnancy, by means of an instruinent applied to the womb.— Robertson and Bachelor, 1806. A similar sentence was passed on a medical man, who, in the same manner, had, for hire, produced abortion on a young woman.Aitken at Perth, 1823. A man had sentence of fourteen years' transportation, for administering arsenic to procure abortion.—Munn at Inveraray, 1824. An attempt to procure abortion is a relevant charge. — 24th May 1858, Reid, 3 Irvine 95 ; 11th Nov. 1858, Reid, 3 Irvine 235. In England, where a child, though quick in the womb, is killed by a blow or by drugs, it is not inurder ; but if born alive, and dying of the previous treatment, it is murder. The English Act, 43 Geo. III. c. 58, superseded by 9 Geo. IV. c. 31, enacts that the use of any means to procure abortion of a child quick in the womb is felony, and to be punished capitally; and if the child be not proved quick, then it is felony punishable by transportation. And the Act 7 Will. iv. and 1 Vict. c. 85, renders such act to procure miscarriage of any woman, even though, in fact, not pregnant, felony, and punishable by transportation. See Consolidated Act, 24 and 25 Vict. c. 100, s. 58, 59, but which does not apply to Scotland.
ABSCONDING. A witness may be committed to prison until he find caution that he shall appear and give evidence at the trial of a cause, on good reasons for supposing he is about to abscond. But this power must be used with great caution ; it seems to be unknown in English law.
ABSCONDING FROM LEGAL DILIGENCE is one of the grounds for fixing notour bankruptcy under the Act 1696, c. 5, and 19 and 20 Vict. c. 79 (1856). In criminal indictments, absconding from justice after the fact charged, is set forth as evidence of guilt.
ABSENCE of a defender in a civil action entitles the pursuer to decree, but which is subject to be recalled at any time before implement total or partial, but under certain conditions. In strictly criminal cases, no procedure can take place in absence, but the accused may be outlawed and his bail-bond forfeited. In some statutory penal offences, the offenders may be proceeded against on citation, and convicted though absent. In such cases care should be taken to have personal citation, or that the citation be left at the proper abode of the accused party.
ABSOLUTE DISPOSITION is a conveyance without any qualification or reservation. It may, however, be absolute in itself, and yet qualified by a separate deed or back-bond.
ABSOLUTE WARRANDICE (-against all mortals') is complete guarantee from every claim and objection, in contradistinction to warrandice from fact and deed, which protects only from the granter's own acts, and not from those of third parties.
ABSTRACTED MULTURES—An action against those astricted to a certain mill, and who have carried their grain to another mill, concluding for the multures of the abstracted grain. This claim prescribes in five years.—1669, c. 9. This anomalous servitude may be redeemed by a pecuniary compensation, fixed by sheriff and jury, under Act 39 Geo. III. c. 55; and few such burdens on land now exist.
ACCESSION—The commencement of the reign of a sovereign.
ACCESSION-A mode of acquiring property. It is either natural or artificial. The former comprehends the young of cattle-fruits and produce of the groundaddition to land on banks of rivers. The latter embraces trees planted-houses built. A person building by mistake on another person's ground has claim for the value, so far as it is an improvement; but he cannot retain possession until repaid the value.—27th May 1831, Beattie, 9 S. 639. The maxim, taken from the civil law, is accessorium sequitur principale, signifying that the accessory right follows the principal.
ACCESSION, DEED OF, whereby the creditors of a bankrupt agree to a trust-deed for their benefit, and to forego individual diligence and preferences. Accession may be established without a formal deed by facts and circumstances (such as by letters, presence at meetings, and acceptance of dividends), though a regular deed is always expedient. -10th March 1871, Marianski, 43 Jur. 325
ACCESSORY-ABETTOR-ACCOMPLICE-ART AND PART. An accessorg is one who aids or assists in a crime, and is held guilty, not as actor, but as art and part. Such are those who conspire together to commit a crime, or give direct counsel or instigation thereto, or actual assistance in its commission. In England it is termed abetting, and there is accession after, as well as before, the fact. An accessory before the fact one who instigates another to commit a crime, but is absent when it is committed ; an accessory after the fact is one who knowingly harbours or assists the criminals. In Scotland, the former is not recognised, unless it infers previous knowledge, counsel, or co-operation. In Scotland, both principals and accessories may be tried in one indictment, and the accessory, though the principal has not been tried. In the style of criminal charges in Scotland, all offenders must be charged alternatively as actors or art and part' in the commission of the offence; and omission is fatal (Act 1592, c. 153), with the exception of cases of treason and child-murder by reason of concealment of pregnancy. In England, at one time, an accessory could not be tried until conviction of the principal; but he may now, as in Scotland, be tried beforehand. The law on this subject relative to summary procedure is there regulated by 24 and 25 Vict. c. 96 and 97. In high treason all are principals in the same degree.
ACCESSORY ACTIONS are those which are merely secondary or incidental to original actions, such as wakenings and transferences; but these, by recent Acts, are nearly rendered unnecessary.
ACCESSORY OBLIGATIONS are supplementary to primary obligations. Such are bonds of corroboration and cautionary obligations.
ACCOMPLICE, ASSOCIATE, or Socius Criminis, may be a witness against his associates. How far (if at all) he is to be believed, is matter for the judge or jury, and his testimony must always be supported by other and credible witnesses. A witness is not bound to give evidence of his own turpitude, even though freed from the penal consequences; and so he cannot be committed for refusing to answer questions which may criminate himself, such as confessing participation in a crime. A justice or fiscal has no power to make a promise of pardon to an offender, on condition of his being a witness. If the prosecutor calls an associate, and he is cautioned by the judge, he is thereby freed from prosecution on account of the particular offence, whatever may be bis evidence; but he may be subsequently prosecuted for perjury, or instantly committed for prevarication. The Court has the power, where obvious justice appears to require such proceeding, to separate the trial, and to try one of the parties charged, so that he may be a witness for the others. This is a power which ought to be very delicately exercised, and only where it clearly appears that a person has had no participation whatever in the offence, and has been put in as a panel to exclude his evidence. Instead of going at first to trial with some of the parties, and so travelling over the evidence twice, it is preferable to go to trial at once with all, notice being first given of the motion to separate the trials; and if, on the evidence for the prosecution being finished, there is no case against some of the parties charged, those parties may be acquitted, so as to be then allowed to give evidence for the remaining parties ; or further, evidence for those first-mentioned parties may be heard, so as to establish their innocence. In this way the case is kept entire, with a great saving of time; and in either way, as the proposed witness behoves to be present during the proof against himself, no benefit is gained by having separate trials. Three persons were charged before the police magistrate of Gorbals of Glasgow in one complaint with the same offence. On the motion of the agent for the accused parties, the bailie ordered one to be first tried separately, but he refused to admit the other two as witnesses in exculpation;
and the first party being convicted, the other two were tried and also convicted. The Court of Justiciary quashed the conviction of all three. The Lord Justice-Clerk (Hope) remarked, "Is there any authority for saying that after a separation of the trials of different panels, those whose trial is postponed cannot be received as witnesses for the other panel ??— Bell and Shaw v. Houston, 228 Jan. 1842, 1 Broun 49. The mistake here was making the separation before grounds were established to warrant such an act; the plan of proceeding to trial with all the parties, and acquitting any one on the close of the prosecutor's eridence, has been often followed in the Jury Court.—7th Jan. 1830, Jamieson. See English case, 3d Feb. 1855, Luck, etc., W. R. S. C. 3 Foster and Finlason, 483. In Scotland, an accomplice who gives evidence is called a king's or queen's witness. In England and Ireland he is termed an approver.
ACCRETION is where a right originally imperfect is made valid by a subsequent act or deed. If a person gives a title to a subject to which he has not himself a completed title, the subsequent completion of the seller's title operates to complete that of the purchaser. The maxim is, Jus superveniens auctori accrescit successori. But the seller must originally have had some title, however defective.—Dunlop, 13th Jan. 1864, 36 Jur. 195 ; 25th Nov. 1869, Smith, 42 Jur. 82.
ACID, SULPHURIC. The throwing sulphuric acid or other corrosive substance at any person, with intent to murder, maim, disfigure, or to do some other grievous bodily harm, and whereby such harm is done, is made a capital offence by 10 Geo. iv. č. 38 (1829), superseding 6 Geo. IV. c. 126 (1825).—Euphemia M.Millan (17th Dec. 1827) received sentence of death for throwing sulphuric acid in a man's face and eyes ; but the sentence was commuted into transportation for life.
ACKNOWLEDGMENT. A debt may be acknowledged by writing. A loan of money exceeding £8, 68. 8d. can only be proved by the borrower's writing or oath. An acknowledgment of receiving money without reference to a prior debt, plac the party under obligation to repay, or show it was not to constitute a debt against him.-13th June 1837, Heriot, 9 Jur. 535; 1864, M'Keen, 36 Jur. 190. Care must be taken not to introduce any promise to pay, else the writing becomes a bill or promissory-note, and so void without a stamp; and which (differing from the rule applicable to all other writings requiring stamps) cannot be stamped on payment of penalty of any amount. This denial of remedy is intended to protect the revenue, because of the multiplicity of bill transactions, but has led to great oppression and injustice. A graduated penalty, increasing with the amount vouched, would effectually protect the revenue, without inflicting ruin on unfortunate creditors lending in exuberance of good faith. The penalty is out of all measure beyond the offence. An omission to pay a few shillings has thus been more than once punished by the loss of many hundreds of pounds by an innocent party, and caused the ruin of families, at the same time rewarding fraud.
ACQUIESCENCE. Parties are deprived of a known legal claim, by allowing it to remain dormant for a length of time, or by acts contrary thereto.--23d Feb. 1855, Sir P. M. Thriepland, 17 Jur. 215; 16th March 1870, Robson, 42 Jur. 366.
ACQUITTAL is the deliverance or setting free for ever of a person from a charge of guilt, either by a desertion of the charge simpliciter, or by verdict or finding of Not Guilty or Not Proven.
ACRE is a denomination of land measure. The imperial acre is a square raised on the basis of a chain of 66 feet or 22 yards ; ten of these form an acre or 4840 square yards, or ten square chains. The division is into roods, of which there are four in the acre ; and into poles or perches, of which there are forty in the rood. The Scotch acre is raised from a chain of 24 ells, equal to 1.2612 imperial acre. In practice, the Scotch acre is found to be 6150 square yards. The imperial acre is now the legal standard, and recognition of any other is attended with much bazard. -5 and 6 Will. iv. c. 63 (1835).
ACRE-DALE-An ancient term denoting lands let out to villagers in sections.
ACT AND COMMISSION- A warrant from the Court of Session to a commissioner to examine havers, witnesses, or parties, either on oath, affirmation, or declaration. It may be, and was often, granted to a justice of peace, who ought strictly to attend to the rules for executing such writs. It will be advantageous for him, wherever possible, to provide himself with a law-clerk, who will see that the forms are duly observed. The clerk ought to be sworn faithfully to record the evidence (de fideli), and it must be so stated in the report of the commission, though in practice the oath is seldom administered. The commission is accompanied with a diligence or warrant to cite witnesses or havers, and, where for recovery of writings, a particular specification of such is annexed. By Act 13 and 14 Vict. c. 36, the proof may proceed on a certified copy of the interlocutor, without any extracted commission. Where the diligence is from the Court of Session, it is authority to cite witnesses in any part of Scotland. Where from sheriffs, magistrates, or justices, it must be indorsed by a magistrate of the particular locality
to authorize a citation of a witness residing therein. The duties of the commissioners acting under authority of the Court of Session, are contained in Act of Sederunt ilth March 1800, made perpetual by Act 22d June 1809. By the first Act, the commissioners must either be, 1st, Advocates resident in Edinburgh, and attending the Court of Session, of more than five years' standing (but in practice the necessity of this last is disregarded); 2d, Sheriff or stewart-depute, or substitute; 3d, Any other inferior magistrate ; or, 4th, The clerk or assistant-clerk of any Court. It is by said Act recommended to the commissioners to exercise their own judgment in the manner of conducting the proof; and particularly to allow no matter to be introduced which is not pertinent to the cause, nor any unnecesBary pleading or altercation about the competency of questions, or the admissibility of witnesses; and to check the parties if they attempt to load the proceedings with unnecessary evidence, or superfluous matter of any kind. It is likewise recommended to them to attend to the rules of evidence, and to give their own deliverances either viva voce or in writing, as they see cause, upon any debate which may occur ;-that if, in the course of the proof, it shall appear to the commissioner that any witness is not disposed to tell the truth, or behaves in any unusual manner, it is recommended to him to take a note thereof at the time, by way of assistance to his memory, in case he should be appealed to on that subject by either of the parties when the proof comes to be advised ; or, if he thinks proper, he may annex the same to the report of the proof.' The witness is sworn, and in administering the oath, proper solemnity ought to be observed. The words of the oath are: I swear by Almighty God, and as I shall answer to God at the great day of judgment, that I will tell (or speak) the truth, the whole truth, and nothing but the truth.' Sometimes it is added, so far as I know or shall be asked ;' but these words are clearly implied. The commissioner ought to be very accurate in recording the name, trade, residence, or other designation and description of witnesses, and in some cases with their ages, and whether married or not. The fact of the Witness being solemnly sworn, must be set forth at the commencement; and at the close, the words, all which is truth, as the deponent (or I) shall answer to God,' must be added, without which the witness's deposition would not probably be received, nor would it perhaps support an indictment for perjury. Sometimes, after the deposition is closed with these words, further questions are put, or statements voluntarily made by the witness on the deposition being read over to him, in which case there ought to be added the words, which also is truth, as the deponent (or I) shall answer to God.' In an examination on oath, the person under examination is called the deponent,' and his statement. a deposition. When examined not on oath, he is called the declarant,' and his statement a declaration,' or judicial examination ;' and therefore care must be taken to distinguish between the words depone and declare, and declarant and deponent. A declaration may be, and in practice is, finished with the words, which he declares to be truth, without the additional words, as he shall answer to God.' Such judicial statement cannot support an indictment for perjury or false swearing.
When the party against whom a witness was opposed wished to raise an objection, he commenced with what is called an initial examination (voir dire in English law), and which behoved to be strictly confined to questions which might disqualify the witness on the ground of interest in the action, agency, or enmity, and such like. The rule is, that an examination with the view of casting the witness is initial; whilst only to affect his credit, it should be cross. In practice it has sometimes happened that, disregarding this rule, much time and expense bave been expended in an initial examination to discredit a witness, who, when examined on the merits, that is, on the facts at issue, was found to be of no avail. Since recent legislation has admitted all evidence, there is little or no room for initial examination. Special questions ought always to be first put; and then general, as, the questions being first answered in the general, further special questions may necessarily lead the witness into difficulties and contradictions. But where a witness has given generally a statement of occurrences, and has said that soch is all that passed, it is then competent to ask him specially on any other circumstances, so as to refresh his memory, or with the view of showing that certain other matters did not occur. All leading questions must, in the first instance, be