23. Defences, are pleas offered by a defender for eliding an action. They are either dilatory, which do not enter into the cause itself, and so can only procure an ahsolvitor from the as pendens ; or preremptory, which entirely cut off the pursue' s's right of action.
24. A cause, after the parties had litigated it before the judge, was said by the Romans to be litiscontested. By litiscontestation a judicial contract is understood to be enter ed into by the litigants, by which the action is perpetuated against heirs, even when it arises ex delito. By our law, litiscontestation is not formed till au act is extracted, ad mitting the libel or defences to proof.
25. All allegations by parties to a suit most be supported by proper proof. Probation is either by by the party's own oath, or by witnesses. In the case of allega tions, which may be proved by either of the three ways, a proof is said to be admitted (trout de jure ; because in such ease all the of probation are competent to the party. If the proof he brings by be lame, he may have recourse either to witnesses, or to his adver sary's oath ; but if he should first take himself to the proof by oath, he cannot thereafter use any other probation.
26. As obligations or deeds, signed by the party himself, or his ancestors or authors, must be, of all evidence, the least liable to exception ; therefore every debt or allegation may be proved evidence in writing.
27. Regularly, no person's right can be proved by his own oath, nor taken away by that of his adversary ; because these are the bare averments of parties in their own favour. But where the matter at issue is referred by one of the par ties to the oath of the other, such oath, though made in favour of the deponent himself, is decisive of the point. The par ty to whom reference is made, in place of making oath, sometimes defers the point back to his adver sary ; but this is nut indulged, unless it shall appear, from the circumstances of the case, that he himself cannot depose in the matter referred to him with distinctness.
28. The law of Scotland rejects the testimony of witnes ses, 1. In payments of any sum above 100/. Scots, all which
must be proved either script° vel juramento. 2. In all gra tuitous promises, which, though for the smallest trifle, cannot be proved by witnesses. 3. In all contracts, where writing is either essential to their constitution, or where it is usually adhibited, as in the borrowing of money. And it is a general rule, subject to the restrictions about to be mentioned, that no debt or right,once constituted by writing, can be taken away by witnesses. On the other part, pro bation by witnesses is admitted to the extent of 100/. Scots, in payments, nuncupative legacies, and verbal agreements which contain mutual obligations. And it is received to the highest extent, 1. In all bargains, which have known engagements naturally arising from them,concerning move able goods. 2. In facts performed in satisfaction even of a writ ten obligation, where such obligation binds the party precisely tothe performance ofthem. 3.In facts which with difficulty ad mit of a proof by writing, even though the effect of such proof should be the extinction of a written obligation, especially if the facts import fraud or violence. Thus a bond is redu cible ex dolo, on a proof by witnesses. Lastly, All intro mission by a creditor with the rents of his debtor's estate, payable in grain, may be proved by witnesses.
29. No person, whose near relation to another bars him from being a judge in the cause, can be admitted as a wit ness for him, but he may against him. Formerly', domes tic servants and moveable tenants, i. e. tenants who have no written tacks, were disallowed, from the presumed in fluence of their masters and landlords over them ; but now our practice admits them. The testimony of infamous persons is rejected, i. e. persons who have been guilty of crimes that the law declares infer infamy, or who have been declared infamous by the sentence of a judge. Pupils are inhabile witnesses, being in the judgment of law incapable of the impression of an oath. The testimony or women was formerly received with reluctance, but it is now as ad missible as that of men, except in the single cas • of c 0 as instrumentary witnesses.