which corroborate such witness, the defendant is entitled to be acquitted.1 2

13 Russ. on Crimes, 77-86; [Gr. Ev. i. §§ 257-259; Williams v. Comm., 91 Pa. St. 493; People v. Stone, 32 Hun, 41; State v. Heed, 57 Mo. 252; Comm. v. Parker, 2 Cush. 212; U. S. v. Wood, 14 Pet. 430.]

2 [It is a chancery rule that where a bill is so framed as to compel an answer on oath and such answer denies the allegations of the bill, the uncorroborated evidence of one witness in support of the bill, will not be sufficient basis for a decree. Gr. Ev. i. § 260; Morris v. White, 36 N. J. Eq. 324; Vigel v. Hopp, 104 U. S. 441; Campbell v. Patterson, 95 Pa. St. 447; Jones v. Abraham, 75 Va. 465; Mey v. Gulliman, 105 Ill. 272. But in New York this rule no longer exists. Stilwell v. Carpenter, 62 N.

Y. 639.

After some doubt, it is now held that a usage of business may be established by the testimony of one witness. Robinson v. U. S., 13 Wall. 363; Bissell v. Campbell, 54 N. Y. 353; Jones v. Hoey, 128 Mass. 585; Adams v. Pittsburgh Ins. Co., 95 Pa. St. 348.]

CHAPTER XVI.

OF TAKING ORAL EVIDENCE, AND OF THE
EXAMINATION OF WITNESSES.

ARTICLE 123.

EVIDENCE TO BE UPON OATH, EXCEPT IN CERTAIN CASES.

ALL oral evidence given in any proceeding must be given upon oath, but if any person called as a witness refuses or is unwilling to be sworn from alleged conscientious motives, the judge before whom the evidence is to be taken may, upon being satisfied of the sincerity of such objection, permit such person, instead of being sworn, to make his or her solemn affirmation and declaration in the following words :—

"I, A B, do solemnly, sincerely, and truly affirm and declare that the taking of any oath is according to my religious belief unlawful, and I do also solemnly, sincerely, and truly affirm and declare," &c.1

2 If any person called to give evidence in any Court of Justice,

1 17 & 18 Vict. c. 125, s. 20 (civil cases); 24 & 25 Vict. c. 66 (criminal cases).

232 & 33 Vict. c. 68, s. 4; 33 & 34 Vict. c. 49. I omit special provisions as to Quakers, Moravians, and Separatists, as the enactments mentioned above include all cases. The statutes are referred to in T. E. s. 1254; R. N. P. 175-6. [Provisions similar to those set forth in this article have been generally adopted in this country by statute. Thus it is provided in the U. S. Revised Statutes (§ 1) that "the requirement of an oath' shall be deemed complied with by making affirmation in judicial form." So in New York, a solemn declaration or affirmation, in the following form, is administered to a person who declares that he has conscientious scruples against taking an oath: "You do solemnly, sincerely, and truly, declare and affirm," etc. Code Civ. Pro. § 847. Other States have like provisions. Under such laws a wilful false oath or affirmation constitutes perjury. Id. § 851; U. S. Rev. St. § 5392.]

whether in a civil or criminal proceeding, objects to take an oath, or is objected to as incompetent to take such an oath, such person must, if the presiding judge is satisfied that the taking of an oath would have no binding effect on his conscience, make the following promise and declaration :

:

"I solemnly promise and declare that the evidence given by me to the Court shall be the truth, the whole truth, and nothing but the truth."

If any person having made either of the said declarations wilfully and corruptly gives false evidence, he is liable to be punished as for perjury.

ARTICLE 124.

FORM OF OATHS; BY WHOM THEY MAY BE ADMINISTERED.

Oaths are binding which are administered in such form and with such ceremonies as the person sworn declares to be binding.1

Every person now or hereafter having power by law or by consent of parties to hear, receive, and examine evidence, is empowered to administer an oath to all such witnesses as are lawfully called before him."

11 & 2 Vict. c. 105. For the old law, see Omichund v. Barker, 1 S. L. C. 455. [By the regular common-law form, the oath is administered upon the Gospels, the witness kissing the book, the usual formula repeated to him being, You do swear that," etc.- So help you God." But often, nowadays, the witness, instead of kissing the book, simply raises his hand while taking the oath. But the rule stated in this article is everywhere accepted. Thus a Mohammedan may be sworn on the Koran, a Brahmin or a Chinaman by the peculiar methods used in their countries, etc. See People v. Jackson, 3 Park. Cr. 590. But if such persons take the usual form of oath without objection, they are liable for perjury, if they wilfully swear falsely. Gr. Ev. i. § 371.

In some States, these general rules, more or less modified, are prescribed by statute. See N. Y. Code Civ. Pro. §§ 845-851; Mass. Pub. St., c. 169, § 13-18.]

214 & 15 Vict. c. 99, s. 16. [Similar statutes are generally in force in

ARTICLE 125.

HOW ORAL EVIDENCE MAY BE TAKEN.

Oral evidence may be taken (according to the law relating to civil and criminal procedure)—

In open court upon a final or preliminary hearing ;

Or out of court for future use in court

(a) upon affidavit,

(b) under a commission,

this country.

2

See U. S. Rev. St. §§ 101, 183, 474, 1778, etc.; N. Y. Code Civ. Pro. 843; Mass. Pub. St., c. 169, §§ 7, 12.]

As to civil procedure, see Order XXXVII to Judicature Act of 1875; Wilson, pp. 264-7. As to criminal procedure, see 11 & 12 Vict. c. 42, for preliminary procedure, and the rest of this chapter for final hearings.

2 [As to preliminary hearings in criminal cases, there are statutes in force in the several States of this country, providing for an examination before a magistrate into the circumstances of a charge against an accused person, and the prisoner may be examined, as well as witnesses for and against him. Bishop, Cr. Pro. §§ 225-239, 3d ed.; N. Y. Code Cr. Pro. §§ 188-221. So in civil cases, statutes in some States provide for the examination before trial of the parties to a cause, or of other persons whose testimony is material and necessary, and may otherwise be lost (see N. Y. Code Civ. Pro. §§ 870-886; Mass. Pub. St., c. 167, ss. 49–60); but the examination of a party before trial is not permissible in actions at law in the U. S. courts. Ex parte Fisk, 113 U. S. 713.]

3 The law as to commissions to take evidence is as follows: The root of it is 13 Geo. III. c. 63. Section 40 of this Act provides for the issue of a commission to the Supreme Court of Calcutta (which was first established by that Act) and the corresponding authorities at Madras and Bombay to take evidence in cases of charges of misdemeanor brought against Governors, etc., in India in the Court of Queen's Bench. S. 42 applies to parliamentary proceedings, and s. 44 to civil cases in India. These provisions have been extended to all the colonies by I Will. IV. c. 22, and so far as they relate to civil proceedings to the world at large. 3 & 4 Vict. c. 105, gives a similar power to the Courts at Dublin.

[There are statutes in the several States of this country, providing for the issuing of commissions by a court or judge, by which commissioners are appointed to take the depositions of witnesses in other States or countries, for use in the particular State issuing the commission. The courts of the

(c) before any officer of the Court or any other person or persons, appointed for that purpose by the Court or a judge [under due legal authority, or designated by statute, or selected by agreement of the parties.] 2 Oral evidence taken in open court must be taken according

foreign jurisdiction will usually aid such commissioners in obtaining the desired testimony, by compelling witnesses to come before them, etc., either upon principles of comity, or in accordance with their own local statutes making this their duty. Another mode of obtaining such evidence is by the issuing of "letters rogatory," which are in the form of a letter missive from a domestic to a foreign court, requesting it to procure and return the desired testimony, under promise of a like favor when required. Gr. Ev. i. § 320. Sometimes foreign courts will comply with such a request, but will not aid commissioners, and then the use of letters rogatory is necessary; but the usual practice is to issue a commission. See U. S. Rev. St. §§ 863-876; N. Y. Code Civ. Pro. §§ 887-920; Mass. Pub. St., c. 169, §§ 23-64; Anonymous, 59 N. Y. 313; Stein v. Bowman, 13 Pet. 209]

[This paragraph is somewhat changed from the original, and the next one in the original is wholly omitted here, since they relate to the special provisions of English statutes. Their original form is as follows: (c) before any officer of the Court or any other person or persons appointed for that purpose by the Court or a judge under the Judicature Act, 1875, Order XXXVII, 4.

"Oral evidence taken upon a preliminary hearing may, in the cases specified in 11 & 12 Vict. c. 42, s. 17, 30 & 31 Vict. c. 35, s. 6, and 17 & 18 Vict. c. 104, s. 270, be recorded in the form of a deposition, which deposition may be used as documentary evidence of the matter stated therein in the cases and on the conditions specified in Chapter XVII."]

2 [Commonly in this country, by the provisions of statutes or of rules of court, persons called variously referees, auditors, commissioners, examiners, etc., may be appointed by a judge or court to take testimony and report it for the information of the court; or such persons may be appointed or selected by the parties to act as judges in hearing and deciding causes (see N. Y. Code Civ. Pro. §§ 827, 1011-1026; Mass. Pub. St., c. 159, 51; Howe Machine Co. v. Edwards, 15 Blatch. 402); masters in chancery perform similar duties. So statutes providing for the taking of testimony in special cases may designate by official name the persons before whom it may be taken. N. Y. Code Civ. Pro. § 899; U. S. Rev. St. § 863.]