Page:Black's Law Dictionary (Second Edition).djvu/1158

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TESTATUM 11 writ and the sheri.fi's answer to the same. may be directed to the sheriff of some other county wheI‘e.iu the deieudant is supposed to he, or to have goods, coinnninrling him to ex- ecute the writ as it may require; and this second writ is called a “te.xtatmn" writ, from the words with which it concludes, viz.: "whereupon, on behalf of the said plalutitt, it is tostified in our s‘ud court that the said defendant is [or has goods. etc.] \vithin your biiiilwi(3l.{."

In conveyancing. That part of a deed which commences with the words, “This indenture Wltuesseth.”

TESTATUM WRIT. In practice. A vii-it containing I1 lie.-rlatum clause; such as a tcstatum copies, a testatum fi. fu., and a testatum ca. ea. See TESTATUM.

TESTATUS. Lat. in the civil law. Test.ite; one \vho has made a will. Dig. 50, 17, 7.

TEST}? MEIPSO. Lat. In old English law and practice. A solemn formula of attestation by the sovereign. used at the conclusion of charters, and other public instruments, and also of original writs out of chacnery. Spelman.

TESTE OF A WRIT. In practice. The concluding clause, commencing with the word “Witness," etc. A writ which bears the tests is sometimes said to be tested.

"Teste" is I1 word commonly used in the last part of every writ, wherein the date is contojned, beginning with the words, “Tests meipso," meaning the sovereign, if the writ be on originsi writ, or be issued in the name of the sovereign; but, if the writ he a judicial writ, then the word “’1‘este" is followed by the name of the chief judge of the court in which the action is bi-on-rht, or, in case of a vacancy of such office. in t e name of the senior

puisne judge. Moziey 8: Whitley.

TESTED. To be tested is to bear the teste, (q. 1).)

TEST!-IS. 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- tbough it uas common in the civil law, was seldom resorted to in the pracfice of the com- mon law, but it is now b(‘COITiIlJg common when i’{lCi) party waives his right to B triai by jury. l‘UWfl.

Testes ponderizntnr, non nunlerantiu. Witnesses are weighed. not numbered. That is, in case of a conilict of evidence, the truth is to be sought by weighing the credibiiity of the respective witnesses, not by the mere nunierical preponderance on one side or the Other.

Testes qui postulnt deliet dare ein sumptus eompetentes. Whosoever do-

5

0 TESTIMONY rnnnds witnesses must find them in competent provision.

Testibns deponentibns in purl nnmero, fligniorlbul est oi-edcndum. Where the witnesses who testify are in equai number. [on both sides,] the more worthy are to be believed. 4 Inst. 279.

TESTIFY. To bear witness; to give evi- dence as :1 witness; to make a solemn dec- laration. under oath or nflirination, in a judicial inquiry, for the purpose of estabiishing or proving some fnct. See State v. Robert- son. 26 S. 0. 117, 1 S. E. 443: Gannon v. Stevens, 13 Kan. 459; Nash v. Hoxle, 59 Wis. 384. 18 N. W. 408: O'Brien v. State. 125 Ind. 38, 25 N. 171 137, 9 L. R. A. 323; iiiudge v. Gilbert, 43 How. Pmc. (N. Y.) 221.

Testhuonin pomlernnda lunt. nan nu-

mex-anda. Evidence is to be weighed. not enumerated. TESTIMONIAL. Besides its ordinary

nieining of a written reconimenrlution to character. “testlmonial" has a speciui meaning. 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 lostifying the piace 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 soidler or mariner not having such a testimonial, or willfully exceeding for above fourteen days the time limited thereby, or forging or counterfeiting such testimonial, was to suller death as a felon, without benefit of clergy. This act was repealed. in 1812, by St. 52 Geo. III. e. 31. Mozley & Whitley.

TESTIMONIAL I-‘ROOF. In the civil law. Proof by the evidence of witnesses, 1. e., parol evidence, as distinguished from proof by written instruments, which is called “litern.l" proof.

TESTIMONTO. In Spanish law. An nuthentic copy of a deed or other instrument made by a notary and given to an interested party as evidence of his title, the originai

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 aftirrnation; as distinguished from evidence derived from writings, and other sources.

Testi1nIJn1j is not synonymous with evi-

dence. It is but a species, a class, or kind of