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

L A
protefl: for re^robator, before the witnefs is examined;
i. e, that he may be afterwards allowed to bring evidence
of his enmity, or other inhability. Reprobator is com¬
petent even after fentence, where proteftation is duly
entered ; but in that cafe, the party inlifting muft confign
L. too Scots, which he forfeits if he fuccumb. This
action muft have the concurrence of the King’s Advocate,
becaufe the concluflon of it imports perjury; and for this
reafon, the witnefs muft be made a party to it,
i 5. The interlocutory fentence or warrant, by which
parties are authorifed to bring theirproof, is either by way
of a<ft, or of incident diligence. In an adt, the Lord Or¬
dinary who pronounces it, is no longer judge in the pro-
cefs ; but in an incident diligence, which is commonly
granted upon fpecial points, that do not exhauft the caufe,
the Lord ordinary continues judge. If a witnefs does
not appear at the day fixed by the warrant of citation, a
fecond warrant is granted of the nature of a caption, con¬
taining a command to meffengers to apprehend and bring
him before the court. Where the party to whom a proof
is granted, brings none within the term allowed by the
warrant, an interlocutor is pronounced, circumducing the
term, and precluding him from bringing evidence there¬
after, Where evidence is brought, if it be upon an ad,
the Lord Ordinary on the ads, after the term for pro¬
ving is elapfed, declares the proof concluded, and there¬
upon a ftate of the cafe is prepared by the Ordinary on
concluded caufes, which muft be judged by the whole
Lords ; but if the proof be taken upon an incident dili¬
gence, the import of it may be determined by the Lord
Ordinary in the caufe.
16. Where fads do not admit a dired proof, prefump
ticns are received as evidence which, in many cafes, make
as convincing a proof as the dired. Prefumptions are
confequences deduced from fads known or proved, which
infer the certainty, or at leaft a ftrong probability, of a-
nother fad to be proved. This kind of probation is
•therefore called artificial, becaufe it requires a reafoning
to infer the truth of the point in- queftion, from the fads
that already appear in proof. Prefumptions are either,
I juris et de jure ; 2. juris ; or 3. hominis or judicis.
The firft fort obtains, where ftatute or cuftom eftablifti es
the truth of any point upon a prefumption ; and it is fo
ftrong, that it rejeds all proof that may be brought to e-
lide it in fpecial cafes. Thus, the teftimony of a witnefs,
who forwardly offers himfelf without being cited, is, from
a prefumption of his partiality, rejeded, let his charader
be ever fo fair ; and thus alfo, a minor, becaufe he is by
law prefumed incapable ofconduding his own affairs, is,
upon that prefumption, difabied. from ading without the
confent of his curators, though he fhould be known to
behave with the greateft prudence. Many fuch prefump-
tions are fixed by ftatute.
17. Prrefumptiones juris are thofe, which our la\w
books or decifions have eftablifhed, without founding any
particular confequence upon them, or ftatuting fuper pre&-
futnpto. Moft of this kind are not proper prefumptions
inferred from pofitive fads, but are founded merely on the
want of a contrary proof ; thus, the legal prefumptior.s
for freedom, for life,, for innocence, i&c are in effed fo
at any negative propofitions, that fervitude, death, and
W. ^ 9.5*
guilt, are hot to be prefumed, without evidence broughr
by him who makes the allegation. Ail of them, whether
they be of this fort, or proper prefumptions, as they are
only conjedures formed from what commonly happens,
may be elided, not only by dired evidence, but by other
conjedures, affording a ftronger degree of probability to
the contrary. Prxfumpttones hominis or judicis, are
thofe which arife daily from the circumftances of parti¬
cular cafes; the ftrength of which is to be weighed by the
judge.
18. A Jiftio juris differs from a prefumption. Things
are prefumed, which are likely to be true; but a fidioa
or law affumes for truth what is either certainly falfe, or,
at leaft, is as probably falfe as-true. Thus, an heir is
feigned or confidered in law as the fame perfon with his
anceftor. Fidions of law muft, in their efteds, be al¬
ways limited to the fpecial purpofes of equity, for which
they were introduced ; fee an example. Tit. xxx. 3.
Tit. 32. Of Sentences and their Execution.
Property would be moft uncertain, if debateable
points might, after receiving a definitive judgment, be-
brought again in queftion, at the pleafure of either of the
parties: Every ftate has therefore affixed the charader
of final to certain fentences or decrees, which in the Ro¬
man law are called res judicatx, and which exclude all
review or rehearing.
2. Decrees of the court of Seffion, are either in foro
contradittorio, where both parties have litigated the
caufe, or in abfence of the defender. Decrees of the
Selfion in foro cannot, in the general cafe, be again
brought under the review of the court, either on points
which the parties negleded to plead before fentence
(which we call competent and omitted), or upon points
pleaded and found infufficient (proponed and repelled.)
But decrees, though/'w/rn?, are reverfible by the court,
where-either they labour under eflential nullities ; e. g.
where they are ultra petita, or not conformable to their
grounds and warrants, or founded on an error in calcul,
ijc.; or where the party againft .whom the decree is ob¬
tained has thereafter recovered evidence fufficient to over¬
turn it, of which he knew not before.
3. As parties might formerly reclaim againft the fen-
tences of the fefiion, at any.time before extrading the
decree, no judgment was final till extfad; but now, a
fentence of the inner-houfe, either not reclaimed againft
within fix federunt-days after its date, or adhered'to upon
a reclaiming bill, though it cannot receive execution till
extrad, .makes the judgment final as to the court of Sef-
fiqn. And, by an order of the houfe of Lords, March-
24. 1725* , no appeal is to be received by them from fen¬
tences of the Seffion after five years from extrading the
fentence ; unlefs the perfon entitled to fuch appeal be mi-
.nor, clothed with a hufband, mv compos tnentis, im-
prifaned, or out of the kingdom. Sentences pronoun¬
ced by the Lord Ordinary have the fame effed, if not
reclaimed againft, as if they were pronounced in prefence .;
and a!! petitions againft: the interlocutor of an Ordinary,
muft: be preferred within eight federunt-days after fign-
ing fuch interlocutor.
4. Be-