Encyclopaedia Britannica; or, A dictionary of arts and sciences, compiled upon a new plan … > Volume 2, C-L

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wakenings and transferences, being but incidental, on fix;
fee the liii of'privileged fummonfes, in afl: of federunt'
June 29. 1672. A furomons muft be executed, e.
ferved againlt the defender, fo as the iaft diet of appear¬
ance may be within a year after the date of the fummons ;
and it mnft be called within a year after that diet, other-
wife it falls for ever. Offence againlt the authority of
the court, afts of malverfation in office by any member
of the college of juftice, and adtsof violence and oppreifion
committed during the dependence of a fuit by any of the
parties, may be tried without a fummbns, by a fummary
complaint.
30. Where an aftion is in part penal, e. g. a remo¬
ving. fpuilzie, <bc. a purfuer who reltrifts his demand to,
dnd obtains decree merely for reflitution, cannot tbsreaf-.
ter bring a new procefs for the violent profits'* Yet the
fame £ad may be the foundation both of a criminal and
civil aftion, becaufe thefe two are intended for different
purpofes-; the one for fatisfying the public juftice, the
other for indemnifying the private pasty: And though
the defender fhould be abfolved in the criminal trial, for
want of evidence, the party injured may bring an aftion
ad civilem effettum, in which he is intitled to refer the
.libel to the defender’s oath.
31. One lib?l or fummoris may contain different con-
clufions on the fame ground of right, refeiffory, declara¬
tory, petitory, if they be not repugnant to each o-
ther: Nay, though different- fums be due to one, upon
diftimft grounds of-debt, or even by different debtors,
the creditor may infift againft them all in' the fame fum-
mons.
32. Defences are pleas offered by a defender for eli¬
ding an aftion. They are either dilatory, which do not
enter into the caufe itfclf, and fo can only procure an ab-
folviture from the Us pendens : Or peremptory, which en¬
tirely cut off the purfuer’s right of adion. The firft, be¬
caufe they relate to the forms of proceeding, muft be of¬
fered in limine judicii, and all of them at once. But
peremptory defences may be proponed at any time before
fentence.
33. A caufe, after the parties had litigated it before
the judge, was faid by the Romans to be litifeontefted.
By litifeonteftation a judicial contrafl is underftood to be
entered into by the litigants, by which the action is per¬
petuated againft heirs, even when it arifes ex delifto. By
our law, litifeonteftafion is not formed till an aft is ex-
trafted, admitting the libel or defences to proof.
Tit. 31, Of Probation.
All allegations by parties to a fuit, muft be fiipported
by proper, proof. Probation is either by writing, by the
party’s own oath, or by witneffes. In the cafe of alle¬
gations, which may be proved by either of the three
w^ys, a proof is faid to be admitted prout de jure ; be¬
caufe, in fuch cafe', all the legal methods of probation
are competent to the party: If the proof he brings by
writing be lame, he may have recourfe either to witneffes
or to his adverfary’s oath ; but, if he Ihould firft take
himfelf to the proof by oath, he cannot thereafter ufe
any other probation, for the reafen affigned § 3, and, on
Vol. II. Numb. 66. 2
l w. 949
the contrary, a purfuer, who has brought a proof by wit-
neffes, on an extrafled aft, is not allowed to recur to the
oath of the defender. Single combat, as a fort of appeal
to Providence, was, by our ancient law, admitted as evi¬
dence, in matters both civil and criminal. It was after¬
wards reftrifted to the cafe of fuch capital crimes where
no other proof could be had ; fome traces of this blind
method of trial remained even in the reign of "f. VI,
who, by 160b. c. 12. might autborife duels on weighty
occafions.
2. As obligations or deeds figned by the party himfelf,
or his anoeftors or authors, muft be, of all evidence, the
leaft liable to exception ; therefore every debt or allega¬
tion may be proved by proper evidence in writing. The
folemnities effential to probative deeds have been already
explained. Tit. xxi. 3. et fq. Booksof account kept by-
merchants, tradefmen, and other dealers in bufinefs,
though not fubferibed, are probative againft liim who
keeps them ; and, in cafe of furnilhings by a Ihop-keeper,
fuch books, if they are regularly kept by him, fupported
by the teftimony of a fingle witnefs, afford a Jemiplena
probatio in his favour, which becomes full evidence by
his own oath in fupplement Notorial iqftruments and
executions by meffengers bear full evidence, that the fo¬
lemnities therein fet forth were ufed, not to be invalida¬
ted otherwife than by a proof of falfehood ; but they do
not prove any other extrinfic faiSs therein averred, againft
third parties.
3. Regularly, no perfon’s right can be proved by his
own oath, nor taken away by th^t of his adverfary ; be¬
caufe thefe are the bare averments of parties in their owo
favour. But, where the matter in iflus is referred by
one of the parties to the oath of the other, fuch oath,
though made in favour of the deponent himfelf, is deci-
five of the point; becaufe the reference is a virtual contract
between the litigants, by which they are onderftood to
put the iffue of the caufe upon what ftiall be depofed:
And this contract is fo ftriCtly regarded, that tire the par¬
ty who refers to the oath of the other cannot afterwards,
in a civil aCiion, plead upon any deed againft the party
depofing, inconfiftent with his oath. To obviate the
fnares that may be laid for perjury, he, to whofe oath of
verity a point is referred, may refufe to depofe, till his
adverfary fwear that he can bring no other evidence in
proof of his allegation.
4. A defender, though he cannot be compelled to
fwear to faCts in a libel properly criminal; yet may, in
trefpaffes, where the conclufion is limited to a fine, or to
damages. In general, an oath of party cannot either hurt
or benefit third parties; being, as to them, res inter alios
alia.
5. An oath upon reference, is fometimes qualified by
fpecial limitations reftriCHng it. The qualities which are
admitted by the. judge as part of'the oath, are called in-
trirtfic ; thofe which the judge rejects or feparates from the
oath, extrinfic. Where the quality makes a part of the
allegation which is relevantly referred to oath, it is in-
trinfic. Thus, becaufe a merchant, fuing for furniftiings
after the three years, muft, in order to make a relevancy,
offer to prove by the defender’s oath, not only the deli¬
very of the goods, but that the price is ftili due ; there-
10 G fore