in a and in certain pleadings in chancery. A party who is referee case, or parties who are commissioners appointed to make partition or admeasurement are usually required to take oath, before proceeding, that they will faithfully perform what is incumbent upon them in that relation, etc.2 The same is true of arbitrators.3 And in some of the States it has been held necessary to the validity of an assignment that it should be sworn to by the assignor.4 VI. HOW ADMINISTERED OR TAKEN.-The oath is administered to witnesses and jurors, in the open court, by the clerk; in case of a party applying for an extraordinary process it is administered by the officer who is to issue such process;6 in case of public ample authority coram judice), the jurats attached to a petition and schedules of a bankrupt will be taken to have been verified in court, if not proved to be otherwise. Schermerhorn v. Talman, 14 N. Y. 93. 1. Dan. Ch. Prac. 686-688, 785. 2. Baylie's Trial Prac. 263; 330-336; N. Y. Code Civ. Proc., §§ 1550; Cooper on References and Referees 61. But it is said that the omission of the referee to take the proper oath before proceeding to take testimony in a case where all the parties are of full age and present, in person or by attorney, is at most a mere irregularity and not a jurisdictional defect. Nason v. Luddington, 56 How. Pr. (N. Y.) 172; McGowan v. Newman, 4 Abb. (N. Y.) N. Cas. So. And the omission of a referee to be sworn is not, in any case, a ground for setting aside a judgment upon his report. Katt v. Germania Fire Ins. Co., 26 Hun (N. Y.) 429. See also Whalen v. Albany Co., 6 How. Pr. (N. Y.) 278. 3. Abbott's Trial Evid. 466; Browning v. Wheeler, 24 Wend. (N. Y.) 258; s. c., 35 Am. Dec. 617. But if a defendant proceeds without them it is considered as a sufficient evidence of a waiver. Day v. Hammond, 57 N. Y. 479; s. c., 15 Am. Rep. 522. See also ARBITRATION, vol. 1, p. 674. 4. Thus in New Hampshire, the assignor is required to make oath "that he has placed and assigned, etc., in the hands of his assignee all his property of every description except such as is by law exempt from attachment and execution, to be divided among all his creditors in proportion to their respective claims." See Flint v. Clinton Co., 12 N. H.430. In Massachusetts, under the statute of 1836, the debtor was required to make oath to similar effect; in New Fersey the debtor is required to verify his inventory by oath or affirmation. In Maine, the assignor is required to make oath to the truth of the assignment, likewise in Indiana. Burrill on Assignments (3rd ed.) 248. 5. Uusually by requiring them to hold up their right hands while they look upon the Bible he holds; or by placing their hands upon the book or in some cases kissing it. The manner of administering is governed almost entirely by usage. Regina v. Frost, 9 Carr. & P. (Eng.) 129; Bouv. L. Dict., Oath. A statute which requires an oath to be administered "by the court or judge," is complied with if the oath is ad ministered by the clerk in open court, under the direction of the court, and tested by the clerk. Qaks v. Rodgers, 48 Cal. 197. Where an act of congress requires an oath to be administered, such oath under the usage of the proper department of government, may be administered by a State officer having authority to administer oaths. United States v. Winchester, 2 McLean (U. S.) 135; United States v. Bailey, 9 Pet. (U. S.) 238. See generally as to who may administer oaths: United States v. Barton, I Gilp. (U. S.) 439; Herman v. Herman, 4 Wash. (U. S.) 555; Sugar v. Davis, 13 Ga. 462. Where the oath was administered by a deputy clerk of the circuit court in Indiana it was held to be as obligatory as if it had been administered by one of the judges. Servir v. State, 2 Blackf. (Ind.) 35. 6. A statutory provision that certain officers may "administer oaths necessary in the performance of their duties," relates to matters filed with or business officers it is by some one appointed by law for the purpose and in a manner prescribed by law or usage.1 The administering must be reverent and in the form provided for the particular occasion;2 and must also be according to the peculiar ceremonies of the religion. to which the person sworn adheres.3 In case a party is prevented by his religious convictions from taking an oath, he is allowed, now, simply to "solemnly affirm," and this affirmation has the same legal effect, for all purposes, as an oath. In general the manner transacted before the officer in which an oath is required, and in reference to which some duty is enjoined upon him. Wheat v. Ragsdale, 27 Ind. 191. 1. The President of the United States has the oath administered to him by the chief justice of the supreme court; in the several States the chief justice of the State court administers the oath to the chief executive. As to oath of office, see PUBLIC OFFICERS. Under the California Practice act of 1851, ch. 8, § 442, the mayor of San Francisco has no right to administer oaths of office. Payne v. San Francisco, 3 Cal. 122. 2. 1 Dan. Ch. Pr. 746. An oath, administered substantially according to the prescribed form is valid. That the witness did not repeat the words "So help me God," as required by the statute regulating the form of oaths, is immaterial. State v. Mazon, 90 N. Car. 676. 3. The court may enquire of a witness before he is sworn what form of oath he considers as most binding and cause him to be sworn accordingly. See 1 Greenl. on Ev., 371, and authorities cited; McKinney v. People, 7 Ill. 541; s. c., 43 Am. Dec. 65; Gill v. Caldwell, I Ill. 53. A Jew is sworn on the Pentateuch or on the Old Testament, with his hat on, closing his oath with "so help me Jehovah," instead of "so help me God." 1 Stra. (Eng.) 821; Newman v. New man, 7 N. J. Eq. 26. A Mohammedan on the Koran. Rex v. Morgan, I Leach (Eng.) 54; C. C. Best's Prin. of Ev. 162. A Gentoo, by touching with his hand the foot of a Brahmin or priest of his religion. A Brahmin by touching the hand of another such priest. 1 Wils. (Eng) 549; Best's Prin. of Ev. 162; Ormichund v. Barker, 1 Atk. (Eng.) 21. A Chinaman by breaking a china saucer. The swearing of a Chinaman is done thus: "On getting into the witness box he knelt down, and a china saucer having been placed in his hand, he struck it against the brass rail in front of the box and broke it. The officer then administered the oath in these words, which were translated into the Chinese language by the interpreter, 'You shall tell the truth and the whole truth; the saucer is cracked, and if you do not tell the truth your soul will be cracked like the saucer.' Reg. v. Entrehman etc., 1 Carr. & M. 248. In another case the saucer was first filled with salt." Best's Prin. of Ev. 162. But in the case of State v. Chyo Chiagk, 92 Mo. 395, it was held that where the statute required the witness to be sworn according to the peculiar ceremonies of his own religion, and the interpreter states that "the joss-stick burning" is the true oath among the Chinese it is error to compel him to be sworn in any other manner. See also 4 Minor's Insts. (2nd ed.) 697-8; 2 Bouv. L. Dict., art. Oath; 1 Starke's Ev. 21, 22; Best's Prin. of Ev. 162, 165, 166. In the case of Com. v. Buzzell, 16 Pick. (Mass.) 153, Roman Catholics were directed by the court to be sworn upon the Holy Evangelists, on the ground that those who profess the Catholic faith generally regard this to be the most solemn form of administering the oath. In the case of United States v. Bailey, 9 Pet. (U. S.) 238, it was held that, where a State officer authorized to administer oaths in his own State administered the oath to a party making a claim against the United States, although the officer was not authorized by act of congress to administer such oaths, yet since it was in conformity with the usages of the treasury department, he was sufficiently authorized in such cases to constitute a false swearing, under such oath, perjury. 4. This is true of the oath of witnesses, of officers and all others. See U. S. Const., art. 2, § 1, par. S; 1 Greenl. on Ev. (4th ed.), § 371; in which an oath or affirmation is administered is presumed to be correct unless it appear otherwise by the record.1 Ormichund v. Barker, 1 Atk. (Eng.) 21, 46; Best's Prin. of Ev. 165, 166. I "Oath," as used in district court act includes affirmation or declaration. L. 1857, 729, ch. 344, § So (N. Y.); N. Y. Code Crim. Proc., § 957. In England it is said that in acts of parliament passed since the end of 1850, "the words 'oath,' 'swear,' and 'affidavit,' shall include affirmation, declaration, affirming and declaring, in the case of persons by law allowed to declare or affirm instead of swearing." §. 4, 13 & 14 Vict., ch. 21; Vƒ. § 3 Interp. act 1889. "Proof made upon oath" (§ 32, Solicitor's act, 1843, 6 & 7 Vict., ch. 73). "I think that admits proof on affidavit, but is not confined to it." Per ESHER, M. R., Osborne v. Milman, 56 L. J., Q. B. 264. i. Coxe v. Field, 13 N. J. L. 215; Dayton v. Johnston, 69 N. Y. 419. 1024 INDEX. Murder. See Homicide Action on assessments, 74 Certificate, remedies and defences on, Collecting assessments, 70 Contract, effect of constitutions and Contract, forfeiture and suspension Contract, title to proceeds of, 61 Definition and distinctions, 17 Distribution, 105 Endowment, 33 Name-Continued. 1025 Compensation, right of riparian Easement of passage, 259 . Public, 246 Semi-public, 253 Navigation, 270 Collision, duties after, 337 Damages, 349 Decree, 364 Definition, 272 Departing from rules, 335 Evidence, 360 Fishing vessels, 326 Legislative control, 272 Local regulations, 336 States, power of, 273 Steamer and row boat, 319 Steering and sailing rules, 293 Tugs and tows, 287, 319 Vessels aground, 332 Vessels anchored, moored, etc., 326 Vessels drifting, 332 Necessary, 368 Ne exeat, 373 Against whom issued, 381 Application for, 379 Bond, etc., 382 Definition of modern writ, 375 History of, 374 How discharged, 383 When granted, 375 Negligence, 386 Action or omission, may be either, |