KFLCC Kingdom Law 2nd Ed.

1150

TESTATUM

TESTIMONY

writ and the sheriffs answer to the same, may be directed to the sheriff of some other county wherein the defendant is supposed to be,,or to have goods, commanding him to ex ecute the writ as it may require; and this second writ is called a "testatum" writ, from the words with which it concludes, viz.: "Whereupon, on behalf of the said plaintiff, it is testified in our said court that the said defendant is [or has goods, etc.] within your bailiwick." In conveyancing. That part of a deed which commences with the words, "This in denture witnesseth." TESTATUM WRIT. In practice. A writ" containing a testatum clause; such as a testatum capias, a testatum fi. 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 OF 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 con tained, beginning with the words, "Teste meipso," 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, trial per. A trial had before a judge without the intervention of a jury, in which the judge is left to form in his own breast his sentence upon the credit of the wit nesses examined; but this mode of trial, al though it was common in the civil law, was seldom resorted to in the practice of the com mon law, but it is now becoming common when each party waives his right to a trial by jury. Brown. Testes ponderantur, non nnmerantnr. 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 postnlat debet dare eis sumptus eompetentes. Whosoever de

mands witnesses must find them in compe tent provision. Testibns deponentibns in pari nnmero, dignioribns est eredendnm. Where the witnesses who testify are in equal number, [on both sides,]' the more worthy are to be believed. 4 Inst 279. TESTIFY. To bear witness; to give evi dence as a witness; to make a solemn dec laration, under oath or affirmation, in & judi cial inquiry, for the purpose of establishing or proving some fact See State v. Robert son, 26 S. 0. 117, 1 S. E. 443; Gannon v. Stevens, 13 Kan. 459; Nash v. Hoxie, 59 Wis. 384, 18 N. W. 408; O'Brien v. State, 125 Ind. 38, 25 N. E. 137, 9 L. R. A. 323; Mudge v. Gilbert 43 How. Prac. (N. T.) 221. Testimonia ponderanda sunt, non nn 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. III. c. 81. Mozley & Whitley. In the civil law. Proof by the evidence of witnesses, t. e., parol evidence, as distinguished from proof by written instruments, which is called "literal" proof. TESTIMONIO. In Spanish law. An au thentic copy of a deed or other instrument made by a notary and given to an interested party as evidence of his title, the original remaining in the public archives. Guilbeau v. Mays, 15 Tex. 414. TESTIMONIUM CLAUSE. In convey ancing. That clause of a deed or instrument with which it concludes: "In witness where of, the parties to these presents have here unto 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 TESTIMONIAL PROOF.