Blacks Law Dict. 1st ed

TESTIS DE VISU, ETC.

1167

TESTATUM WRIT

TESTIFY. To bear witness; to give ev idence as a witness; to make a solemn dec laration, under oath or affirmation, in a judi cial inquiry, for the purpose of establishing or proving some fact. Testimonia ponderanda sunt, non nu meranda. Evidence is to be weighed, not enumerated. TESTIMONIAL. Besides its ordinary meaning of a written recommendation to character, "testimonial" has a special mean ing, under St. 39 Eliz. c. 17, § 3, passed in 1597, under which it signified a certificate under the hand of a justice of the peace, tes tifying the place and time when and where a soldier or mariner landed, and the place of his dwelling or birth, unto which he was to pass, and a convenient time limited for his passage. Every idle and wandering soldier or mariner not having such a testimonial, or willfully exceeding for above fourteen days the time limited thereby, or forging or coun terfeiting such testimonial, was to suffer death as a felon, without benefit of clergy. This act was repealed, in 1812, by St. 52 Geo. HI. c. 31. Mozley & Whitley. TESTIMONIAL PROOF. In the civil law. Proof by the evidence of witnesses, i. e., parol evidence, as distinguished from proof by written instruments, which is called "literal" proof. TESTIMONIES. In Spanish law. An attested copy of an instrument by a notary. TESTIMONIUM CLAUSE. In con veyancing. That clause of a deed or instru ment with which it concludes: "In witness whereof, the parties to these presents have hereunto set their hands and seals." TESTIMONY. Evidence of a witness; evidence given by a witness, under oath or affirmation; as distinguished from evidence derived from writings, and other sources. Testimony is not synonymous with evi dence. It is but a species, a class, or kind of evidence. Testimony is the evidence given by witnesses. Evidence is whatever may be given to the jury as tending to prove a case. It includes the testimony of witnesses, docu ments, admissions of parties, etc. 13 Ind. 389. See EVIDENCE. TESTIS. Lat. A witness; one who gives evidence in court, or who witnesses a document. Testis de visu preeponderat aliis. 4 Inst. 279. An eye-witness is preferred to others.

TESTATTTM WRIT. In practice. A writ containing a testatum clause; such as a testatum capias, a testatum ft. fa., and a testatum ca. sa. See TESTATUM. TESTATUS. Lat. In the civil law. Testate; one who has made a will. Dig. 50, 17.7. TESTE MEIPSO. Lat. In old English law and practice. A solemn formula of at testation by the sovereign, used at the conclu sion of charters, and other public instru ments, and also of original writs out of chan cery. Spelman. TESTE OP A WRIT. In practice. The concluding clause, commencing with the word "Witness," etc. A writ which bears the teste is sometimes said to be tested. " Teste " is a word commonly used in the last part of every writ, wherein the date is contained, be ginning with the words," Teste melpso," meaning the sovereign, if the writ be an original writ, or be issued in the name of the sovereign; but, if the writ be a judicial writ, then the word "Teste" is followed by the name of the chief judge of the court in which the action is brought, or, in case of a vacancy of such office, in the name of the senior puisne judge. Mozley & Whitley. TESTED. To be tested is to bear the teste, (q. v.) TESTES. Lat. Witnesses. Testes ponderantur, non numerantur. Witnesses are weighed, not numbered. That is, in case of a conflict of evidence, the truth is to be sought by weighing the credibility of the respective witnesses, not by the mere numerical preponderance on one side or the other. Testes qui postulat debet dare eis sumptus competentes. Whosoever de mands witnesses must find them in compe tent provision. TESTES, TRIAL PER. A trial had be fore a judge without the intervention of a jury, in which the judge is left to form in bis own breast his sentence upon the credit of the witnesses examined; but this mode of trial, although it was common in the civil law, was seldom resorted to in the practice of the common law, but it is now becoming common when each party waives his right to a trial by jury. Brown. Testibus deponentibus in pari numero, dignioribus est credendum. Where the witnesses who testify are in equal number, [on both sides,] the more worthy are to be believed. 4 Inst. 279.

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