5. Where an oath is administered by a person that hath lawful authority to tender the same, and it be afterwards broken, yet if it be not in a judicial proceeding, it is no perjury, nor punishable by the common law. 3 Inst. 166.

6 Therefore, if one call another a perjured man, he may have an action upon the case, because it shall be intended to be contrary to his oath in a judicial proceeding; but for calling one a forsworn man, no action lies; because the forswearing may be extrajudicial, and consequently no perjury in law. 3 Inst. 166.

As to the form of oaths to be taken by different public officers, see 1st & 2d vol. Rev. Code, index, title OATHS.

The oath administered to a witness, on a trial, generally is, 'The evidence which you shall give in the case now depending between A B, plaintiff, and C D, defendant, shall be the truth, the whole truth, and nothing but the truth. So help you God.' And then kisses the book.

If to answer questions, upon an examination.

'You shall true answer make to such questions as shall be propounded to you, relative to the matter now before me' (or the court, if depending in court.)

As to affirmations, the party affirming has a right to prescribe

his own form.

II. WHAT SOLEMNITIES MAY BE USED INSTEAD OF

OATHS.

By an act of May session, 1779, ch. 7(1 vol. Rev. Code, p. 55, sect. 8) a person, who, from religious scruples, refused to take an oath, might be qualified according to the solemnity used by the church of which he professed to be a member; but the act of 1806 goes still further, and permits a person to use the solemnity and ceremony, and repeat the formulary, which, in his own opinion, ought to be observed. Any person refusing to take an oath in the manner the same hath heretofore been usually administered, and declaring religious scruples to be the true and only reason of such refusal, if he or she shall use the solemnity and ceremony, and repeat the formulary observed on si. milar occasions, by those of the church or religious society of which such person professed himself or herself to be a member, or to join in and repeat communion with, or shall use the solemnity and ceremony, the formulary which, in his or her opinion, is or ought to be observed on such occasions, according to the religion in which such person professeth to believe, he or she shall thereupon be deemed as competent a witness, or be as duly qualified to execute an office, or perform any other act, to the sanction whereof an oath is or shall be required by law, and shall be subject to the same rules, derive the same advantages, or incur the same penalties or forfeitures, as if he or she had

sworn.'

III. OATHS OF INFIDELS.

A Jew is to be sworn on the old testament, and perjury upon the statute may be assigned upon this oath. 2 Keb. 314.

Upon error in debt upon a bond, the bail being both Jews, were suffered to put on their hats while they took the oath. Str. 821.

At the council, Dec. 9, 1738. Present the two chief justices. On a complaint of Jacob Fachina against general Sabine as governor of Gibraltar, alderman Ben Monso, a Moor, was produced as a witness, and sworn upon the Koran. Str. 1104.

So in the case of Omichund against Barker, in the court of chancery, the depositions of several persons who were heathens of the Gentou religion, sworn after their own country manner, were admitted to be read. 2 Eq. Cas. Abr. 397. 1 Atk. 21.

So a Mahometan may be sworn on the Alcoran, in a prosecution for a capital offence. Leach 58.

ORDINARIES.

THE term ordinary was very early adopted in Virginia, to signify what in law is called an inn, and is now commonly called a tavern, or public house. Ordinary-keepers were at first licensed by the governor (see I Stat. at large, 287) but afterwards by the county courts Ibid. 471) which continues to be the case at the present day. See 1 Rev. Code, ch. 107, p. 202, as to licensing and regulating the rates of taverns, &c. Also, acts of 1809, ch. 12. sect. 3, p. 13. As to gaming in taverns, see 1 Rev. Code, p. 204, 373. 2 Rev. Code, ch. 15, p. 13.

Warrant for taking more than the legal rates, on sect. 3, of 1 Rev. Code, p. 203.

county, to wit.

Whereas complaint is this day made to me, J P, a justice of the peace for this county, by A J, that on the

day of

last

past, A O, of an ordinary keeper in this county, did demand and take from him the said A J, a greater price for drink, diet, &c. (as the case may be) than is allowed by the rates established by the court of this county. These are, therefore, to require you to summon the said A O to appear before me, or some other justice of the peace for this county, to shew cause why the penalty of twelve dollars should not be levied upon him, for the said offence, according to law. Given, &c.

By the 7th section of the act (1 Rev. Code, p. 203) Every justice of the peace is required and strictly enjoined to cause this act to be put in strict execution within his county.'

And if any justice, either from information, his own knowledge, or other just cause, shall suspect any person of keeping a tippling house, or retailing liquors, as aforesaid, he is hereby empowered, and required to summon such person to appear before him, together with such witnesses as he may judge necessary; and upon the person's appearing, or failing to appear, if the justice, upon examining the witnesses upon oath, shall find sufficient cause, he may, and is hereby required to direct the attorney for the commonwealth in such county to institute a prosecution against such person on the public behalf, which such attorney is hereby required to institute accordingly. And such justice may also cause the person so suspected to give bond, with two sufficient securities, for his or her good behaviour, for the term of one year, the principal in the sum of one hundred and fifty dollars, and the securities in the sum of seventy-five dollars each; and upon failing to give such bond and security within three days after being thereto required, such person may be committed to the jail of the county, there to remain until he or she shall give bond and security accordingly, and if such person shall afterwards, during the said term, keep a tippling house, or retail liquors as aforesaid, the same shall be, and is hereby declared a breach of good behaviour, and of the condition of such bond.'

(A) Summons to bring a person suspected of keeping a tippling house, or retailing spirituous liquors, without license, before a magistrate.

to wit.

Whereas I have just cause to suspect, from my own knowledge (or from the information of A J) that A O, of this county, doth keep a tippling house (or doth retail spirituous liquors without license first had and obtained, as required by law.) These are, therefore, to require you, in the name of the commonwealth, to summon the said A O, to appear before me, at on the next, to answer the premises, and further to be dealt with according to law. And summon also A W, B W, &c. to appear as witnesses, on behalf of the commonwealth in this case, at the time and place above mentioned. Given under my hand and seal, &c.

day of

(The recognizance may be in the form (A) under title RECOGNIZANCE,' the principal in 150 dollars, and the securities in 75 dollars each) with the following condition.

The condition of this recognizance is such, that whereas the above bound A O, hath been duly convicted before J P, one of the commonwealth's justices of the peace for the county of for keeping a tippling house (or retailing spirituous liquors without license) within the said county, within months last past, contrary to the act of the General Assembly in that case made and provided. Now if the said A O shall be of good behaviour for and during the term of one

year, next ensuing the date hereof, then the above recognizance to be void, else to remain in full force.

Το

to wit.

(C) Mittimus for want of sureties.

day of

constable, and to the keeper of the jail in the said county. Whereas, on the last past, A O of this county, labourer, was duly convicted before me, JP, one of the commonwealth's justices of the peace for the said county, by the oaths of A W, B W, &c. of keeping a tippling house (or retailing spirituous liquors without license) within the county aforesaid, within months last past, contrary to the act of the General Assembly in that case made and provided; and the said A O having failed, within three days after the date of the conviction aforesaid, to enter into a recognizance, with two sufficient securities, himself in the sum of one hundred and fifty dollars, and his securities in the sum of seventy-five dollars each, for the said A O being of the good behaviour for the term of one year, thence next ensuing; and the said A O now before me having refused to find such securities. These are, therefore, in the name of the commonwealth, to command you the said constable forthwith to convey the said A O to the jail of this county, and to deliver him to the keeper there, together with this precept. And I do, in the name of the said commonwealth, hereby command you the said keeper to receive the said A O into your custody, in the said jail, and him there safely to keep, until he shall find such securities as aforesaid. Given under my hand and seal, &c.

(D) Directions to the attorney for the commonwealth, to institute a prosecution against the keeper of a tippling house, or a retailer of liquors without license.

to wit.

Whereas upon the examination of A W, B W, &c. this day taken` upon oath before me, J P, one of the commonwealth's justices of the peace for this county, it appears to me that A O, of the county of aforesaid, is guilty of keeping a tippling house (or of retailing spirituous liquors without license.) These are, therefore, in the name of the commonwealth, and by virtue of the powers to me given, by the seventh section of the act of the General Assembly, entitled An act to regulate ordinaries, and restraint of tippling houses,' to require you to institute a prosecution against the said A O, on the public behalf. Given, &c.

To A A, Esq. attorney for the commonwealth, in the county of

ORPHANS. See APPRENTICES.

-}

OVERSEERS OF THE POOR. See PоOR.

PARDON.

1. A PARDON is a work of mercy, whereby the executive, either before the attainder, sentence or conviction, or after, forgiveth any crime, offence, punishment, execution, right, title, debt, or duty, temporal or ecclesiastical. 3 Inst. 233, 5 Co. 110. b.

2. Pardons are either general or special. General are by act of Assembly; of which, if they are without exceptions, the court must take notice ex officio; but if there are exceptions therein, the party must aver that he is none of the persons excepted. 3 Inst. 233. Hale's

Pl. 252.

3. Special pardons are either of course, as to persons convicted of manslaughter, or se defendendo, and by divers statutes to those who shall discover their accomplices in several felonies; or, of grace, which are by the executive's charter, of which the court cannot take notice ex officio, but they must be pleaded. 3 Inst. 233.

4. The executive cannot pardon an offence before it is committed; but such pardon is void. 2 Haw. 389.

5. As the release of the party will not bar an indictment at the suit of the commonwealth; so neither will a pardon by the executive be any bar to an appeal at the suit of the party. 2 Haw. 392.

6. And in some cases, even where the commonwealth is sole party, some things there are which it cannot pardon; as for example, for all common nuisances, as for not repairing of bridges or highways, the suit for avoiding multiplicity of suits) is given to the commonwealth only, for redress and reformation thereof; but the executive cannot pardon or discharge either the nuisance, or the suit for the samé, because such pardon would take away the only means of compelling a redress of it. But it hath been holden by some, that a pardon of such an offence will save the party from any fine, for the time precedent to the crime. 3 Inst. 237. 2 Haw. 391.

7. Thus also, if one be bound by recognizance to the governor, to keep the peace against another by name, and generally all other citi zens of the commonwealth; in this case, before the peace be broken, the governor cannot discharge or release the recognizance, although it be made only to him, because it is for the bencfit and safety of the citizens generally. 3 Inst. 238.

8. Likewise, after an action popular is brought, as well for the commonwealth as for the informer, according to any statute; the commonwealth can but discharge its own part, and cannot discharge the informer's part; because, by bringing of the action, the informer hath an interest therein; but before the action is brought, the executive may discharge the whole (unless it be provided to the contrary by the act) because the informer cannot bring an action or information ori