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5 & 6 Will. 4, or by pawnbrokers (s. 12), on the transfer of stock at the Bank of
England (s. 14), and in suits on behalf of her Majesty in her Majesty's territories, &c. (17), -and the following provisions relative to the duties of justices of the peace.
Oath prohibited.] Sect. 13 recites, that "a practice has prevailed of administering and receiving oaths and affidavits voluntarily taken and made in matters not the subject of any judicial inquiry, nor in anywise pending or at issue before the justice of the peace or other person by whom such oaths or affidavits have been administered or received ; ” and that “doubts have arisen whether or not such proceeding is illegal ; ” “ for the more effectual suppression of such practice and removing such doubts," enacts,“that, from and after the commencement of this act, it shall not be lawful for any justice of the peace or other person to administer, or cause or allow to be administered, or to receive, or cause or allow to be received, any oath, affidavit or solemn affirmation touching any matter or thing whereof such justice or other person hath not jurisdiction or cognizance by some statute in force at the time being."114
Exception of Foreign countries.] “Provided always, that nothing herein contained shall be construed to extend to any oath, affidavit or solemn affirmation before any justice in any matter or thing touching the preservation of the peace,-or the prosecution, trial, or punishment of offences,-or touching any proceeding before either of the houses of parliament [Case S, ante, p. 1514), or any committee thereof respectively, nor to any oath, afidavit, or affirmation which may be required by the laws of any foreign country 115 to give validity to instruments in writing designed to be used in such foreign countries respectively."
114 A justice who had sworn witnesses in a matter before the Bishop of Exeter as to the conduct of two clergymen, was held to have brought himself within this enactment. Reg. v. Nott, 1 Car. & M.288.
115 The act is somewhat loosely drawn, but the correct construction of the words “ foreign country” in this section (13), taken in conjunction with sect. 15 (which applies to actions and suits in our colonies, except Victoria, 22 & 23 Vict. c. 12), would appear to be all countries and places abroad, whether or not they are part of her Majesty's dominions. As respects such foreign countries, if the justice satisfies himself by docu. ments or otherwise that the laws of such places require an oath or affidavit "to give validity to instruments in writing," he may safely receive the affidavit and administer the oath in such cases, and also, if necessary, add his seal; but it is conceived, that in other
cases of documents intended for such foreign places, not being for the purpose of "giving validity to instruments,” viz. in proof of debts or accounts and other matters, even where the laws of such places require an affidavit (of which it is said there are many, passed before the 5 & 6 Will. 4, c. 62, and which must be considered as virtually repealed by that act), an affidavit cannot be received, but a declaration must be taken under the general enactment of either sects, 16 or 18, p. 1417, as the case may require.
To take Declarations instead of Afidavits in relation to Actions 5 & 6 Will. 4, in certain Colonies.] Section 15, after reciting Geo. 2, c. 7, and c. 62. 54 Geo. 3, c. 15 (which related to the recovery of debts in the Plantations and Colonies of America and the Colony of New South Wales, by persons resident in Great Britain, and authorized the mayor or other chief magistrate of boroughs to take affidavits in such cases), and that “it is expedient that in future a declaration should be substituted in lieu of the affidavit on oath authorized and required by the said recited acts,” enacts,—that " in any action or suit then depending-or thereafter to be brought
or intended to be brought-in any court of law or equity within any of the territories, plantations, colonies or dependencies abroad, being within and part of his Majesty's dominions, for or relating to any debt or account w ein any person residing in Great Britain and Ireland shall be a party, or for or relating to any lands, tenements or hereditaments, or other property, situate, lying and being in the said places respectively," the plaintiff or defendant, and also any witness, may verify or prove any matter or thing relating thereto by solemn declaration or declarations in writing in the form in the schedule to the act, made “before any justice of the peace, notary public or other officer, now by law authorized to administer an oath, and certified and transmitted under the signature and seal of any such justice, notary public duly admitted and practising or other officer ;-which declaration, and every declaration relative to such matter or thing as aforesaid, in any foreign kingdom or state, or to the voyage of any ship or vessel, every such justice, &c. shall be, and he is hereby authorized and empowered to administer or receive ;-and every declaration so made, certified and transmitted, shall, in all such actions and suits, be allowed to be of the same force and effect, as if the person or persons making the same had appeared and sworn or affirmed the matters contained in such declaration vivâ voce in open court, or upon a commission issued for the examination of witnesses or of any party in any such action or suit respectively; 116–provided that in every such declaration there shall be expressed the addition of the party making such declaration, and the particular place of his or her abode.” [By 22 & 23 Vict. c. 12, s. 1, the above sect. 15 and sect. 17, and sects. 1, 2, 3 of the 54 Geo. 3, c. 15, are repealed so far as they apply to the colony of Victoria. Justices may, therefore, take a declaration in these cases under
116 If the matter in question is not relating to a suit or action in the colonies, and, therefore, not provided for by this section, sect. 18, supra, will apply. The 19 & 20 Vict. c. 113, which provides the mode of taking evidence in her Majesty's dominions in relation to civil and commercial matters pending before tribunals in a foreign country, would seem not to affect this enactment, nor does the 22 Vict. c. 20.
5 & 6 Will. 4, Sects. 16 or 18, infra, as the case may require, or an affidavit, C. 62.
should the colonial laws so provide.]
To take Declaration of Execution of Wills or Deeds.] By sect. 16, any attesting witness to the execution of any will or codicil, deed or instrument in writing, or any other competent person, mas verify and prove the signing, sealing, publication, or delivery of any such will, &c., by such declaration in writing.
To take Declarations in other Matters.] Sect. 18, reciting that it may be necessary and proper in many cases, not herein specified, to require confirmation of written instruments, or allegations, or proof of debts, or of the execution of deeds, or other matters," enacts “that it shall and may be lawful for any justice of the peace, notary public, or other officer now by law authorized to administer an oath, to take and receive the declaration of any person voluntarily making the same before him in the form in the schedule in this act annexed, 117—and if any declaration so
117 This section seemingly authorizes any declaration being received by the justice or other person which he may think it “necessary and proper” for the confirmation of “written instruments, or allegations, ... or other matters.". In Reg. v. Boynes, 1 Car. & Kir. 65, Erskine J., expressed an opinion that this section is not confined to the cases mentioned in the preamble, which might perhaps mean matters ejusdem generis, but that it extends to declarations generally. The later decision of Byles
, J., in Reg. v. Cox, 9 Cox, C. C. 301; 4 F. & F. 42, that the preamble must be read with the enacting part overrides this. The general opinion and practice now is, that the enactment of sect. 18 is controlled and limited by the recital; otherwise, why should the legislature have taken the trouble in the previous sections to declare what declarations may be taken, if it was intended that justices and others should have power to take ons declaration whaterer. This subject has been much discussed at the present tiine (March, 1872], both in parliament and in the legal journals and other newspapers, in reference to the scandalous charges brought against the wife of a gentleman holding a high official appointment, which were contained in a voluntary declaration made before a metropolitan police magistrate. In the course of that discussion the following published regulation, the practice referred to in which had been adhered to at the Mansion House, London, for thirty years, met with unqualified approval :
** 5. Subject of Afidavit or Declaration.]— The subject matter and the facts set forth in the affidavit or declaration will be examined, and only such affidavit as is authorized by law, or such declaration as appears to be * necessary and proper,' will be taken.” To this regulation there is this note appended : --.* The Statutory Declaration Act,' 5 & 6 Will. 4, c. 62. authorizes the taking of a declaration in relation to actions in our colonies (s. 15), except Victoria, ...; and of execution of wills or deeds (s. 16); and also by sect. 18, where it may be necessary and proper 10 many cases, not herein specified, to require confirmation of written instru. ments or allegations, or proof of debts, or of the execution of deeds or other matters.' Declarations will, therefore, not be received respecting immoral practices, or involving criminal charges or supposed criminal charges, affecting the declarant or other persons, whether or not they are the subject of proceedings commenced, pending, or determined, nor in any other improper case. Of course, an affidavit of the same purport cannot be taken.
made shall be false or untrue in any material particular the 5 & 6 Will. 4, person wilfully making such false declaration shall be deemed C. 62. guilty of a misdemeanor.” See sect. 21, p. 1520, and Offence 159, ante, 1064.]
Fee for Declaration.] The same as for an oath (s. 19).
Form of Declaration.] Sect. 20 provides, that in all the cases such declaration, unless otherwise directed in revenue cases, &c., shall be in the form prescribed in the schedule.118 The following is the form of it, with the addition of the declarant's abode and quality required by the act only in case of a declaration for the Colonies (see s. 15), and the title of the act and jurat.
I, A. B., of the parish of in the [county] of — do solemnly
is to say; and then number the paragraphs.]
Amongst other improper declarations frequently attempted to be passed off under various pretexts are those which, or the documents set out in or annexed to them, contain puffs of different trades, or articles of commerce, or give the nature of the ingredients of articles of other traders, and which declarations are intended to be used to the advantage of the declarant or the disadvantage of others in our colonies or in a foreign country, where the documents, being thereby clothed with a sort of legal or judicial sanction, are readily received as authentic and the statements in them relied upon.
118 Stamp Duty on Affidavits and Declarations.]-By “The Stamp Act, 1870," 33 & 34 Vict. c. 97 (schedule “ Affidavit”) a duty of 28. 6d. is payable on an " Affidavit or Statutory Declaration under the provisions of 5 & 6 Will. 4, c. 62," from which there are these "Exemptions," viz.:“(1.) Affidavit made for the immediate purpose of being filed, read, or
used in any court, or before any judge, master, or officer of
sioners of any public board of revenue, or any of the officers
justices of the peace.
England or the Bank of Ireland to prove the death of any
ment to the transfer of any such stock.
ment of any bank note or bank post bill. “15.) Declaration required to be made pursuant to any act relating to
marriages in order to a marriage without licence." Justices, however, cannot refuse to take a declaration because it is not on a revenue stamp.
119 For a variety of forms of statements of facts for declarations, as of identity, authentication of a signature, correctness of copy of a parish register, of a birth, &c., of execution of a power of attorney, &c., as well as of mayors, and forms of jurats, where the declarant is a marksman, blind, &c., ride Oke's “ Formulist,'' 6th ed. pp. 867—873.
5 & 6 Will. 4, Abolition of Oaths and Affirmations taken and made in various c. 62.
Departments of the State, and to substitute Declarations in lieu thereof, for the more entire Suppression of voluntary and extrajudicial Oaths and Affidavits, and to make other Provisions for the abolition of unnecessary Oaths."
of — this — day of —, in the year of
Place where A ffidavit or Declaration is taken.] The taking of an affidavit or declaration, being an act of voluntary jurisdiction, may, like recognizances (for which see ante, p. 11), be taken out of the jurisdiction of the justice (Barclay's Law of Scotland, p. 15), except where the act relating to the affidavit or declaration provides otherwise.
31 & 32 Vict. c. 72.
III. Promissory Oaths Act, 1868.
[1, 2, 3 sub-sects. which do not relate to matters in this work.]
included within the saving clauses thereof an oath is re-
as such oath : “5. The making a declaration in pursuance of this section instead
of oath, shall in all respects have the same effect as the taking the oath for which such declaration is substituted would have had if this act had not passed."