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

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fore, though the defender ftiouJd acknowledge upon oath
his having received the goods, yet, if he adds, that he
paid the price, this laft part, being a denial that the debt
iubfifts, is intrinfic, fince it is truly the point referred to
oath. Where the quality does not import an extindtion
of the debt, but barely a counter-claim, or mutua petitio,
againft the purfuer, it is held as extrinfic, and muft be
proved aliunde. Neither can a defender who in his
oath admits the conftitution of a debt, get off by adject¬
ing the quality of payment, where the payment ought
by its nature to be vouched by written evidence.
6. Oaths of verity are fometiraes deferred by the judge to
either party, ex officio; which becaufe they are not found¬
ed on any implied contradl: between the litigants, are not
finally decifive, but may be traverfed on proper evidence
afterwards produced. Thefe oaths are commonly put
by the- judge -for fupplying a lame or imperfed proof*
and are therefore called oaths in fupplement. See § 2.
7. To prevent groundlefs allegations, oaths of calumny
have been introduced, by which either party may demand
his adverfary’s oath, that he believes the fad contained in
his libel or defences to be juft and true. As this is an
oath, not of verity, but only of opinion, the party who
puts it to his adverfary, does not renounce other proba¬
tion ; and therefore no party is bound to give an oath of
calumny, on recent fads of his own, for fuch oath is
really an oath of verity. Thefe oaths have not been
fo frequent fince the ad of federunt, Feb. 1. 1715,
whereby any party, againft whom a fad ftiall be alledged,
is obliged, without making oath, to confefs or deny it ;
and in cafe of calumnious denial, is fubjeded to the ex¬
pence that the other party has thereby incurred.
8. In all oaths, whether of verity or calumny, the ci¬
tation carries, or at leaft implies, a certification, that if
the party does not appear at the day afligned for depofing,
he Ihall be held pro confeffo ; from a prefumption of his
confcioufnefs, that the fad upon which he declines to
fwear makes againft him ; but no party can be held pro
eonfeffo, if he be in the kingdom, without a previous per-
fonal citation ufed againft him. Though an oath which
refolves into a non memini, cannot be faid to prove any
point; yet where one fo depofes upon a recent fad, to
which he himfelf was privy, his oath is confidered as a
difiembling of the truth, and he is held pro confeffo, as if
he had tefufed to fwear.
9. An oath in litem, is that which the judge defers
to a purfuer, for afcertaining either the quantity or the
value of goods which have been taken from him by the
defender without order of law, or the extent of his da¬
mages. An oath in litem, as it is the affirmation of a
party in his own behalf, is only allowed where there, is
proof that the other party has been engaged in fome ille¬
gal ad, or where the public policy has made it neceffary,
fee Tit. xx. 11. This oath, as to the quantities, is not
admitted, where there is a concurring teftimony of wit-
neffes brought in proof of it. When it is put as to the
value of goods, it is only an oath of credulity, and there¬
fore it has always been fubjed to the modification of
the court.
xo. The law of Scotland rejeds the teftimony of wit-
uaeffes, 1. In payment of any fum above Z,..ioq Scots, all
A W.
which muft be proved either fcripto vsl juramento. 2„
In all gratuitous promifes, though for the fmalleft trifle.
3. In all contrads, where writing is either effential to their
conftitution, (fee Tit. xxi. 2 ) or where it is ufually adhi¬
bited, as in the borrowing of money. And it is a general
rule, fubjed to the reftridions mentioned in the next
that no debt or right, once conftituted by writing, can
be taken away by witneffes.
11. Oh the other part, probation by witneffes is ad¬
mitted to the extent of L. 100 Scots, in payments, nun¬
cupative legacies, and verbal agreements which contain
mutual obligations. And it is received to the higheft ex¬
tent, 1. In all bargains which have known engagements
naturally arifing from them, concerning moveable goods.
2. It»fads performed in fatisfadion, even of a written
obligation, where fuch obligation binds the party precifely
to the performance of them. 3. In fads which with dif¬
ficulty admit of a proof by writing, even though the ef-
fed of fuch proof flxould be the extindion of a written
obligation, efpecially if the fads import fraud or violence ;
thus, a bond is reducible ex dolo, on a proof by witneffes.
Laftly, all intromiflion by a creditor with the rents of his
debtor’s eftate payable in grain, may be proved by wit¬
neffes; and even intromiffion with the filver-rent, where
the creditor has entered into the" total poffellion of the
debtor’s lands.
12. No perfon, whofe near relation to another bars him
from being a judge in his caufe, can be admitted as a wit-
nefs for him; but he may, againft him, except a wife or
child, who cannot be compelled to give teftirnony againft
the huftand or parent, ob reverenliam perfonee, et me-
turn perjurii. Though the witnefs, whofe propinquity
to one of the parties is objeded to, be as nearly related
to the other, the objedion (lands good.
13. The teftimony of infamous perfons is rejeded, i. e.
perfons who have been guilty of crimes that law declares
to infer infamy, or who have been declared infamous by
the fentence of a judge; but infamia fatti does not difr
qualify a witnefs. Pupils are inhabile witneffes ; being,
in the judgment of law, incapable of the impreffians of an
oath. The teftimony of women is feldom admitted, where
other witneffes can be had. And in general witneffes 0-
therwife exceptionable may, where there is a penury of
witneffes arifing from the nature or circumftances of the
fad, be received cum nota-, that is, their teftimbny,
though not quite free from fufpicion, is to be conjoined
with the other evidence, and to have fuch weight given
_ it as the judge (hall think it deferves.
14.. All witneffes, before they are examined in the
caufe, are purged of partial counfel; that is, they muft
declare, that they have no intereft in the fuit, nor. have
given advice how to condud it; that they have got neither
bribe nor promife, nor have been inftruded how to de-
pofe ; and that they bear no enmity to either of the par¬
ties. Thefe, becaufe they are the points put to a witnefs
before his making oath, are called initialia tejlimonii.
Where a party can bring prefent proof of a witnefs’s par^
tial counfel, in any of the above particulars, he ought to
offer it before the witnefs be fworn ; but, becaufe fuch
objedion, if it cannot be inftantly verified, will be no bar
to the examination, la,w allows the party in that cafe to
proteft,;.