(recoit); an admission made in Court; notoriety (quand la chose qu'on a à prouver est si clair de soi-même qu'il n'y convient autre témoin); and presumptions. In his remarks on the validity of witnesses, he incorporates the doctrine of the Roman law.

The proceeding which he describes was substantially continued by the ordonnance of 1667, and is explained at length by Pothier (m). By the Code 252, et seq., and which furnishes an excellent guide for those who wish to reform our pleading, the party who means to prove certain facts is to state them concisely, and if they are not denied or admitted by his adversary in three days they are to be taken as true.

Before 1667, it was necessary to write "requêtes, repliques, and dupliques" until the parties had agreed upon the facts to be proved. Judge, says a writer on French law (n), of the delay and expense of such a system! It was, he continues, to extirpate so detestable a system, that the ordonnance of 1667 (can an Englishman read the date without a blush?) said, and that the Code has repeated, that the facts are to be stated simply, without any argument or detail, the object merely being to state what it is intended to prove ;—a tariff is fixed for the fee allowed for drawing up these facts, which can never, whatever the importance of the matter in dispute, be exceeded. Art. 2, 25. The reply contains the admission or denial of these facts, or objections to their relevance and admissibility. It does not follow because facts are denied that the enquête is to take place; they must be admissible, relevant, in the language of the Roman law, "ut intentioni (0) præbeant adminiculum."

The judgment ordering the enquête contains,

The facts to be proved,

The name of the judge before whom the proof is to be brought forward.

(m) Procédure civile et criminelle, 1. 127.

(n) Bouceune Théorie de la Procédure, p. 221, vol. 1.

(0) Intentio is the statement of the plaintiff.

256. "La preuve contraire sera de droit." But if the defendant means to confess the truth of the plaintiff's statement, and neutralize its effect by some other fact, he must ask for an enquête in his turn.

The Code has made one material improvement on the system established by the ordonnance 1667. It has admitted both parties to be present at the inquiry (261); whereas formerly the witness deposed in the presence of the commissioner alone, who took the depositions,-the parties after the oath had been administered to the witness being obliged to withdraw.

There are two cases in the French law where another proceeding is substituted for the examination of witnesses before a commissioner. These are, first, in certain civil cases where the inquiry is called summary; and again, in criminal investigations. First, let us consider the summary proceeding in civil matters.

Oral evidence was always allowed before the consular tribunal. This jurisdiction was established for the sake of commerce in the year 1563; and, to use the expression of one of Louis 14th's jurists, "God having blest the simplicity of the judges, consuls;" in other words, the advantages derived from the opportunity given to the judge of seeing and examining the witness, by the evidence of whom he was to be guided being so manifest; it was resolved by the framers of the ordonnance of 1667, tit. 7, art. 8, in spite of the remonstrances of Lamoignon, to introduce the oral system before tribunals that decided on summary matters. By the Law of the 6th October, 1790, which organized the method of proceeding en justice de paix, a third application of the summary mode of investigation was introduced. Cod. de Proc. art. 34, 40.

The summary matters which are settled before civil tribunals according to a more simple mode of proceeding, will be found in the 404th article of the Code de Procédure. To these

must be added all those which, by the first article of the Law of the 11th April, 1838, are within the jurisdiction of those tribunals. Thus, all matters judged without appeal are summary; but the converse of the proposition is not true, for in the majority of the instances cited, art. 404, Cod. Proc. civ., the matter is summary from its nature, whatever be the amount of the sum at issue.

In these summary cases it is not necessary that the facts should be "articulated" beforehand. The meaning of this is, that the facts may be "articulated," i. e., stated particularly, when the cause is heard without the formalities and delay required by the law in cases of more importance. In cases before the tribunal of commerce, where an appeal lies, the depositions of the witnesses are to be taken down in writing by the clerk and signed by the witness (art. 432).

EXCLUSION OF PAROL EVIDENCE IN CIVIL CASES.

Weary of the ordeal and of compurgators, and of trial by battle, France returned to the system of vivâ voce evidence. "Sachez," says Bouteillier, who wrote A. D. 1400, "que la vive voix passe vigueur de lettres, si les témoins sont contraires aux lettres, et se doit plus le juge arrêter à la disposition des témoins qui, de saine mémoire, déposent et rendent sentence de leur dépositions, que à la teneur des lettres qui ne rendent cause." If this means that the evidence of a witness delivered vivâ voce, in the presence of a judge, is more satisfactory than his deposition, experience attests its truth. If it means, as it has been supposed by some to mean, that the statement of a stander by, who hears a contract made, is better evidence of the contract than the written instrument which contains its stipulations, a doctrine more erroneous has been rarely promulgated. Whatever, however, may have been the original sense of the expression "témoins passent lettres," the errors that arose from the fallacious memory or the intentional fraud of witnesses were grievous.

In this, as in most other tracks of modern civilization, Italy took the lead. A statute of Bologna, which bears date a. D. 1453, and was ratified by Pope Nicholas 5, forbids oral proof of payments above 50 lire, and of contracts above the value of 100. And in 1498 the statutes of Milan forbid, in certain cases, the introduction of oral proof. A similar improvement took place in the 16th century in France, under the auspices of the illustrious L'Hôpital; and it was from the South, the "pays de droit écrit," that the suggestion emanated. The Parliament of Toulouse sent deputies to Charles 9 to the States General of Moulins, to solicit the regulation which afterwards became the 54th article of the Ordonnance A. D. 1566, and by which it is ordered, that all contracts for matters above the value of 100 livres shall be in writing. The only reason assigned in the preamble of this edict for its enactment is, the length and intricacy of legal proceedings. Still that the perjury of witnesses had risen to an alarming height we know from Loisel, who cites the legal proverb, "Fol est qui se met en enquête, car qui mieux abreuve, mieux preuve." When this edict was first passed, as it tended to make justice cheaper and more attainable, it encountered the virulent opposition of the great body of legal practitioners in Francemen about as well qualified to form an opinion on any legislative measure as the carrier between Versailles and Paris would have been to write a Treatise on Geography. Boiceau, a contemporary writer, says accordingly, "Cum primum nata et promulgata fuit hæc Carol. 9, regia sanctio plerisque visa est, dura et odiosa, et juri contraria." But these clamours were silenced by every day's experience; and the same writer adds, that after a time "nulla toto hoc sæculo constitutio ac lex regia sanctior et probatior visa fuit amplissimo nostro Galliæ senatui.”

The 54th article of the Ordonnance de Moulins was in substance transferred to the 2nd article of the 20th title of

G

the Ordonnance 1667, and is now engrafted in the article 1341 of the Code Civil.

Thus, in France, oral evidence is rejected in all matters of contract exceeding the value of 150 francs.

There are two exceptions to this rule.

One, where it was impossible for the creditor to procure oral evidence of the obligation on which he insists.

This exception comprises (p),—1. Obligations arising from "quasi contrats, délits et quasi délits." 2. Deposits made necessarily in cases of fire, ruin, tumults, shipwrecks, by guests at an inn. 3. Unforeseen accidents. 4. Where in consequence of an accident arising from "force majeure,” the creditor has lost the instrument which furnished the literal proof.

The second exception is where there exists a commencement de preuve par écrit." This expression signifies, among other things, any writing which has emanated from him against whom the demand is made, or from him whom he represents, and which makes the fact alleged probable. This principle has been established by a decision of the Court of Colmar, 21st April, 1848, and is acquiesced in by all the French authorities.

The extra judicial confession calls for no particular remark, it must be proved, like any other fact in the cause, and its value when proved is left to the appreciation of the judge; but in the § 1355 of the Code Civil, the legislator reminds us that a verbal confession of a debt, above the value of 150 francs is inadmissible.

It is remarkable that both in the Ordonnance of Louis 14, 1667, and the Code, the deposit is expressly mentioned as not

(p) This is borrowed from the Code de Testibus, L. 18. "Sin vero facta quidem per scripturam securitas est fortuito autem casu vel incendii vel naufragii vel alterius infortunii perempta tum liceat his qui hoc perpessi sunt causam peremptionis probantibus, etiam debiti solutionem per testem probare damnumque ex amissione instrumenti effugere."