Testes

Witnesses.

When the validity of a will is contested, the executor, instead of proving it in the common form, — i.e. upon his own oath simply, — before the registrar of the court of probate (which is deemed sufficient, where no opposition is made), is expected to make proof guage of the ecclesiastical courts, making proof per testes (by witnesses), and in open court. When a will is so proved, two witnesses are, by the civil law, indispensable; although it does not appear to be necessary that they should have read the will, or even heard it read, provided they can depose on oath that the testator declared that the writing produced was his last will and testament, or that he duly executed the same in their presence. A trial had before a judge, without the intervention of a jury, in which the judge is left to foi-m in his own breast his sentence upon the credit of the witnesses examined, is called, in the language of the civil-law courts, a trial per testes. The phrase was applied especially to trials according to the method of the Roman civil law, and, in this strict sense, is now obsolete, though the trial of questions of fact by the judge and without a jury has always been common in admiralty and equity, and has been introduced by statute in a number of causes and proceedings in courts of common-law origin. But there is no force in terming such trials " trials per testes." The distinction marked by that phrase was that between trial by witnesses, and such sorts of trial as combat, oath of parties, or ordeal. Trial by the court and trial by jury are in their nature equally trials by witnesses.