Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-11-16

sum or value OF d uuhuA0N AAi
paid at one time, contracts should be
passed in writing, by which alone PROOF
Of the matter should be reserved; q
no proof beyond the contents Of such IN
struments should be receivable"
This provision was confirmed and even
extended and developed, by the Ordon-
nance Of 1867, TIT. %, Art. ?, thus
worded; a Acts shall be passed before
notaries or under private signature Tor
all matters that exceed the sum or value
Of a hundred livres, even for voluntary
deposits and no proof Of witnesses shall
he received. against and beyond the eon-
tents Of acts, mol as TO anything alleged
10 have been said, before, at the time OF,
or after the execution Of the acts, even
il the matter be Of g sum less than q
hundred livres."
This article excepted commercial mat
ters; and the next article excepted alse
cases of unforeseen accidents, and those
iu which there was q commencement Of
prof. by writing.
The Civil Code Code NaPoleon)
adopted these provisions, increasing the
amount from one hundred livres to u
hundred and fifty francs.
The French law, following in that the
Roman law, does not permit servants
and domestics to testify in favour Of
those by whom they are employed.
Law 6, #. de testi5ps says Ldonei non
videutlT esse testes, quibus imperGri ut
testes fdnt: They are held not to be mt
witnesses, for those who may constrain
them to become witnesses. But he 10
man law applied only to children under
the p~aternal government, and to slaves
and ought not to have been applied to
servants and domestics who are free per
o n and only dependent in a certain de-
gree: but the disqualification only the
more strongly shows the distrust Of
oral testimony hsbitusl to that law.
So the Roman law rejected, for suspi-
cion Of Partially, the testimony of an
advocate or attorney Of either Of the par
ties in q cause and it is to be regretted
that they are not disqualified by curl law
PoTHIER held that it ought to be ex-
eluded, though the Ordonnance Of 1867
said nothing on the subject. For, he
said. such testimony would be suspected
of partlslity. if given in favour Of the
client. and It would be indecent to allow
an advocate or attorney TO testify against
his client.
By the Roman law, the deposition Of q
single witness was in general insufficient
to establish q fact 10 matter how worthy
Of credit or Of what dignity the witness
might be: etiamsiprGcJar0 cwi8 boHOTe
prqfRgeat, said Law 9, i, Cod. de
testibus and this was Eneisntly followed
in the French Courts, according to the
saving of the bar, tests uHEs, tesas
Fagus , D witness, no witness.
HADRzAE said to the Legste Of Cilieia
that it was impossible 10 define with
certainty what ought IL every case to
suffice for proof; that the truth cogld got
slwavs. but yet could often be arrived st
without the aid OF public records and
that sometimes the number Of the wit
pesses. sometimes tbejr dignity and
credit. and sometimes geaefsl apd con-
current repute would establish faces.
% Wherefore" he said, ~ can, on the
whole. only give you this instruction,
that yoa are not confined to any one
kind Of proof bVt oaght by the convic-
tons Of your own miBd G Determine
what you should believe, or what sou
should consider not sufficiently proven. T"
In accordance with which, the French
law holds that oFai tesdmopy is to be re-
gardsd less as prcof properly 50 called
than as raising . presumption, the sun
cheney Of which is to be judged Of by the
magistrate.
MARCADE, the most acute and philoso-
phicai Of al writers upon what we term
Jurisprudence, OF tie science Of the law,
says, upon this subject OF ofSi testimony,
that 4" c0mplaisant witnesses SEEM, IN
fortunately, to be an easy thing to OBJ
tain sad if our fathers repeated the
sdags, reputei by LOIsEL, 'qta mieur
aBrelrUe, mieuz preugs,'s 1t may be that
in our own days the infuenas q the
table and other influences not less POtest
( Oban il, are not less to be feared. Atany
rate, the Legislators OF France have dis
trusted witnesses, and the precautions
which they have taken to aasbnriGe q
party to object to witnesses who have
eaten and drunken at the costs Of his adj
versary, have not seemed to them suhi-
cient to justify the unlimited admission
Of oral testimony"
"On the other hand" he says, " and
even supposing that all witnesses were
conscientious and v~eraciOus, the exclu.
sion Of oral testimony has been deemed
an excellent means Of avoiding a swarm
OF ruinous utigations. The Ordonnanos Of
MoULINs, Of 1866, which for the first
time made the dispositions afterwards
confirmed by the Ordonnance OF 1867 and
which Section 1871 Of the Code repro,
duces, declared that they were made " tc
obviate the multiplication Of facts which
have been heretofore seen to be brought
into litigation, calling for oral testimony.
and i-mpeachments Of witnesses, whence
come many inconvenience and inUolu.
Hoas of suits. So that it is the fear o.
the su~boFnation Of witnesses, on the one
hand. and on the other the desire Of pre-.
venting multiplicity OF suits that have
led 10 the prohibition, at least In prinei.
pie. Of oral testimony"
The French law, IS Interpreted by
MARcADE, excludes oral testimony in al
cases whatever, where the amount OF
value Of the matter in dispute is Of more
than $50 francs, and excerpts only thosG
cases ia which It was impossible for the
claimant 10 have obtained an Instrument
in writing.
We are 20 accustomed 10 our own sys.
TEN Of admitting psrol evidence Of every
thing, except in a few cases where the
Statute OF France excludes it, that We
are unconscious or unooserVant OF me
multiplicity Of mischiefs that it engen-
ders. The very prohibitions Of that
Statute prove the v%iciousness OF our sys.
TEN. There is no reason, in the nature
Of things, why . promise to pay the debl
of another, or q promise that is not 10 be
performed within 4 year, should not be
proveable by parol rs well o. any OtheI
contract. There Is nc more danger Of
s~ubornstion Of perjury in these matters,
than in Others; and the Statute Of
Frauds makes only a step in the dinec.
ton Of preventing litigation. The prin-
I ciuA Of the French lawis that 3 man shall
not prove by parole 3 contract that in
wolves an amount sufficient 70 make it
-- -Af1. a raduca IL N writing nm