to regulate.73 Conducting. The present participle of conduct." CONDUCTI ACTIO. In the civil law, an action which the hirer (conductor) of a thing might have against the letter (locator).75 CONDUCTIO. In the civil law, a hiring.76 CONDUCT MONEY. Money paid to a witness who has been subpoenaed on a trial sufficient to defray the reasonable expenses of going to, staying at, and returning from the place of trial." CONDUCTOR.78 A director or manager in gen eral.79 a the person so employed is not 73. Worcester D. [quot Harvey v. 74. Webster D. [a] "Effecting" as synonymous 77 [e] The term "conducting transportation" is used to distinguish that class of operating expenses of a railroad company which is neither maintenance of way and structures, maintenance of equipment, nor general expenses. Southern Pac. Co. v. Bartine, 170 Fed. 725, 752. 75. Black L. D. 76. Black L. D. [a] Use of term.-The term is used generally in connection with the term "locatio," a letting. Locatio et conductio (sometimes united as a compound word, "locatio-conductio,") a letting and hiring. Black L. D. 77. Black L. D. of law applicable to a trial on an employment be the moving power, | L. R. 1 Q. B. 259, 260. on 1 think we may gather that the in tention was to create a court consisting of the Judge, designated for each case by the President of the High Court of Justice, for the trial of the person charged: and to give to the court so created, under the general power to conduct the trial,' the power to bring the person charged before the court, to try him for the offence, and to sentence him if found guilty, for all these powers are conferred upon the Judges in sec. 188 of the Ontario Election Act, which is incorporated by reference in sub-sec. 4 of sec. 91 of the Liquor Act, 1902." Rex v. Walsh, 5 Ont. L. 527, 531, 532, 2 OntWR 222. cr [c] Charge or conduct of ship In construing the General Pilot Act (6 Geo. IV c 125 § 70) providing that every person attempting continuing to act in charge or conduct of any ship or vessel without being a duly licensed pilot should forfeit a certain sum, the court said: "These words are to be understood in the sense ascribed to them in other parts of the act; that is, they mean the taking the charge and direction, as a pilot, whose appropriate, and indeed sole duty it is to select the course, and take the management and conduct of the vessel, for the purpose of directing her in that course. The master of a coasting vessel may, if he pleases, perform that duty himself; but if he chooses to employ another for that purpose, he must employ a licensed pilot; and an unlicensed person taking that duty on himself by com mand of the master, when a licensed pilot offers his services, would be liable to the penalty in the 70th section. But the master is not precluded from employing any moving power which he may please; he may make use of another vessel, or boats, or a steam-tug for that purpose; and if that cannot be done without necessarily devolving upon those who apply the power, the selection of the course, and a certain portion, or indeed all the charge and conduct of the vessel in that course, still if the bona fide object of the [b] "Conducting actions."-Where [c] "Conducting a business.”—(1) and the proviso limiting the compen- [d] Conducting cattle.-Where a or 78. Conductor: Failure to employ as negligence see Carriers 11 C. J. p 606 et seq; Mechanic see Mechanic [26 Cyc 1610 Regulations designating number of 79. Century D. [a] "Manager" as synonymous.In construing a statute providing that the conductors or managers on all railroads shall have power, and are hereby required, to assign to each white or colored passenger his or her respective car or coach or compartment the court said: "Generally speaking, the conductor is the manager of the train, and we think the words 'conductor' or 'manager' are used interchangeably and intended to mean the same person, unless it should be that a person not called or designated a 'conductor' should be in charge of a train, and in a state of case like this, he might appropriately be called the 'manager.' Louisville, etc., R. Co. V. Renfro, 142 Ky. 590, 596, 135 SW 266, 33 LRANS 133. " [b] Person in control of train."It is a matter of common knowledge that the conductor is the person who has charge of the train, controls its movements, and is held responsible by the company for obedience to its rules and regulations." Louisville, etc., R. Co. v. Renfro, 142 Ky. 590, 597, 135 SW 266, 33 LRANS 133. [c] Superior in authority to other employees.—(1) "The conductor of a train is the superior in authority and grade in every train crew, and has charge of the train and its operations, and all the other members of the crew are under his control and subject to his orders, which they must obey, regardless of whether they concur in the necessity or propriety of them. He is the representative of the company, and is vested with all of its authority over the train and its crew in the work being done, and charged with all the duties and responsibilities which the company owes to its employees, engaged in this perhaps the most hazardous of all industrial pursuits, chief of which is the duty to carefully and skillfully superintend the movements of its cars and trains for the prevention of accidents, upon the proper discharge of which the safety of the employees is so greatly CONFEDERACY.99 CONFECTIONERY. A place where sweetmeats and similar things are made and sold.97 It is a generic word, which includes a great variety of kinds of articles usually sold in a confectioner's shop.98 Where two or more combine together to do any damage or injury to another, or to do any unlawful act.1 In equity pleading, an improper combination alleged to have been entered into between the defendants to a bill in equity.2 In international law, a league or agreement between two or more independent states whereby they unite for their mutual welfare and the furtherance of 92. Confection: Comfit as onymous see Comfit 11 C. J. p 1233. Standard D. which "goods are left with the bailee 83. See Drains [14 Cyc 1018] Municipal Corporations [28 Cyc 9181; Waters [40 Cyc 658]. CONFECTIO. The making and completion of a dependent." Alabama Great Southern R. Co. v. Baldwin, 113 Tenn. 409, 413, 82 SW 487, 67 LRA 340, 3 AnnCas 916. (2) "The conductor of a railway train is the master of the train, in the same sense in which the captain of a ship at sea is master of the ship. With respect to those measures which are necessary for the safety of the persons board the train, he wields the whole power of the railway company, except in so far as those powers have been specially committed to the engineer or to other servants." 4 Thompson Negl. [quot Tabor v. St. Louis, etc., R. Co., 210 Mo. 385, 399, 109 SW 764, 124 AmSR 728]. on [d] Foreman as conductor.-(1) In construing a statute providing that every railroad corporation shall be liable for damages sustained by any employee thereof without contributory negligence on his part, unless the damage is caused by the negligence of conductors, etc., the court said: "It could not be sincerely claimed that the word 'conductor' can be applied to the foreman of a section gang or of a bridge crew, because he merely conducts or manages the work; or that it can be applied to any other conductor than the one who manages the railroad train; and yet the act does not say 'train conductor.'" Hartford V. Northern Pac. R. Co., 91 Wis. 374, 378, 64 NW 1033 [quot Reinke v. Northern Pac. R. Co., 145 Fed. 988, 990; St. Louis, etc., R. Co. v. Guin, 109 Miss. 187, 196, 197, 68 S 78]. (2) It has been held that the conductor of yards whose actual position was that of foreman in charge of a night switching crew under the immediate direction of a yardmaster was not a conductor. St. Louis, etc., R. Co. v. Guin, supra. [e] "Man in charge of train" as synonymous "The terms 'conductor' and 'man in charge of the train' should be treated as synonymous.' Council v. St. Louis, etc., R. Co., 123 Mo. A. 432, 440, 100 SW 57. [f] A yardmaster is not a conductor. St. Louis, etc., R. Co. Guin, 109 Miss. 187, 195, 68 S 78. V. [g] Brakemen and other employees distinguished.-"A conductor, having the entire control and management of a railway train, occupies a very different position from the brakemen, the porters, and other subordinates employed. He is in fact, and should be treated as, the personal representative of the corporation, for whose negligence it is responsible to subordinate servants." Chicago, etc.. R. Co. v. Ross, 112 U. S. 377, 390, 5 SCt 184, 28 L. ed. 787. 80. Black L. D. See also Coggs v. Bernard, 2 Ld. Raym. 909, 913, 92 Reprint 107, 5 ERC 247 (where it was said that the term may be used to designate the bailee in a bailment in 84. Sefton v. Prentice, 103 Cal. 670, 673, 37 P 641. [a] Similar definition-The term is "defined to be either a channel or a pipe." Cheyney v. Atlantic City Water Works Co., 55 N. J. L. 235, 237, 26 A 95. 85. Sefton v. Prentice, 103 Cal. 670, 673, 37 P 641. 86. "The tie of marriage was formed among the patricians by the ceremony of confarreatio, in which none could partake except those who had the privileges of the jus sacrum." Hammond Introd. to Sandars' Justinian 31, 32, Compare Sohm Rom. L. (3d ed) 453. a was 87 "Confarreatio was solemn religious ceremony, before ten witnesses, in which an ox was sacrificed, and a cake of wheaten bread divided by the priest between the man and woman as an emblem of the consortium vitae, or life in common." Mackenzie Rom. L. 95. "In farreum women pass in manum by a kind of sacrifice made to Jupiter Farreus, in which a farreum, that is a wheaten cake (farreus panis) is used; from which the ceremony is named confarreatio. But, besides, in order to establish this right, many other acts and things are done, and a set form of words used in the presence of ten witnesses. Nor is this rite disused even in our time, for greater Flamines--namely, the Dialis, the Martialis, the Quirinalis, and also the Rex Sacrorum-must be begotten in marriage celebrated by confarreatio. And a Flamen too, if he marries, must do so by confarreatio." Gaius Inst. I, 112. 88. "A sacrifice offered to Jupiter with solemn words, prescribed by tradition (certa verba), and accompanied by certain ceremonies had the effect of formally uniting a man and woman for all sacrificial purposes, and consequently for lifelong companionship, and of placing the woman at the same time-for the two things were considered inseparable-in the manum mariti." Sohm Rom. (3d ed) 453. L. 89. Sohm Rom. L. (3d ed) 456. 90. "We learn from Plutarch (Quaest. Rom. p. 270) that the marriage of confarreation was dissolved by a sacrifice under the authority of the Pontiff, who took care that it should be infrequent and costly. The sacrifice is said to have required certain abominable rites. The wife of the Flamen Dialis could not be divorced." Hunter Rom. L. (4th ed) 227. 93. syn 94. U. S. v. Schall, 147 Fed. 760, 762 [aff 154 Fed. 1005, 83 CCA 3291. 95. Confectioner: As subject to license tax see Licenses [25 Cyc 617, 618]. 96. Standard D. [a] Apothecaries.-"In early days an apothecary was called a confectionary or confectioner, because he used sweets to disguise the nauseous taste of his medicines, and thus by analogy, we have come to look upon the confectioner as the master of the art of making candy and confections." U. S. v. Meadows, 147 Fed. 757. [b] "Baker" distinguished.-"The confectioner uses practically no flour, and the baker always uses it; in varying quantities, it is true, but in every case to a substantial amount." U. S. v. Meadows, 147 Fed. 757, 758. 97. Webster D. [quot New Orleans v. Jane. 34 La. Ann. 667, 668]. 98. Com. v. Chase, 125 Mass. 202, 203 (holding that an indictment which charged defendant with adulterating one pound of confectionery did not sufficiently describe the substance alleged to have been adulterated). [a] Dragees-So-called dragees, small round bodies with a silver coating, which are composed of sugar and starch, and are used by bakers for decorating cakes, and to some extent by confectioners, are not "sugar candy" or "confectionery," within the meaning of the Tariff Act July 24, 1897, c 11 § 1 Schedule E par 212. but are dutiable as articles in part of silver under Schedule C par 193. La Manna v. U. S., 154 Fed. 955, 956. [b] Sweet crackers, known as "wafers and biscuits," in which the proportion of the sweetened centers to the pastry envelopes is large, but in which flour is used to a substantial extent, are not dutiable either directly or by similitude as "confectionery," under the Tariff Act of July 24, 1897. c 11 § 1 Schedule E par 212. U. S. v. Meadows, 147 Fed. 757 [aff 154 Fed. 1005, 83 CCA 297). [c] Liquors.-The term "'confectionery" can by no possible stretch of construction be held to include the selling of liquors by the drink. New Orleans v. Jane, 34 La. Ann. 667, 668. [d] "Chocolate" distinguished.— In the tariff acts a distinction has been preserved between chocolate and confectionery. Arthur v. Stephani, 96 U. S. 125, 128, 24 L. ed. 771. 99. See generally States [36 Cyc 834]. 1. Jacob L. D. [quot Watson v. Harlem, etc., Nav. Co., 52 How Pr (N. Y.) 348, 353; State v. Crowley. 91. Black L. D. [cit Clayton's 41 Wis. 271, 284, 22 AmR 719]. Case, 5 Coke 1a, 77 Reprint 48]. 2. Black L. D. 3. Black L. D. [a] Common usage.-The term may apply to a union so formed for a temporary or limited purpose, as in the case of an offensive and defensive alliance; but it is more commonly used to denote that species of political connection between two or more independent states by which a central government is created invested with certain powers of sovereignty, mostly external, and acting upon the several component states as its units which, however, retain their sovereign powers for domestic purposes and some others. Black L. D. 4. See also Confederation post this page. Confederate and Union soldiers distinguished see Army and Navy § 238 note 60 [a]. "Confederated states" defined see International Law [22 Cyc 1706]. 5. Standard D. were [a] As referring to persons jointly indicted. Where the jury charged that they might find defendant guilty, in case they were satisfied from the evidence, beyond a reasonable doubt, of his guilt, although they might find that the alibi asserted by him, both as regarded himself and his confederates. and also a designated witness, might be true, the court said: "We think the word 'confederates,' as used in the charge, was used in the sense of 'those indicted with him,' words used in the former part of the charge, and that it must have been so understood by the jury." Jones v. State, 64 Ind. 473, 489. 6. Standard D. 7. Standard D. See also Confederate States of America post this page. 8. Confederate money: Acceptance by executor or administrator in payment of debt see Executors and Administrators [18 Cyc 225]. In French law, a concordance or identity between two laws or two systems of laws.19 CONFESS. While the word has several different meanings, it is ordinarily used to characterize the admission of personal sin or wrongdoing.20 CONFESSING ERROR.21 A plea to an assignment of error, admitting the same.22 CONFESSIO. [§ 1] A. Nature and Requisites. In the civil law, the acceptance of a fact which dispenses with proof thereof.22% Formerly, confessions were not regarded as constituting a means of proof,2 ,22% but the contrary view is now taken.221⁄4 The confession must relate to the confessor's individual acts and he must have legal capacity to make it.22% [2] B. Terminology. In considering this subject, we encounter a difference between the civil and the common law, which, however, as in many other instances, is more apparent than real. In the civil law facts of this nature are grouped under the general head of "confessions,' 22% while under the common law, there is an attempt to restrict this term to criminal cases, and to apply the word "admissions" to civil cases. This distinction will not hold, however, even under the last named system, where it is still permissible to speak of a 'confession of judgment" or of a "judgment by confession" or of motions, or of demurrers 66 this has been repealed by the new code of civil procedure). Currency of, as cash see Cash 11 C. J. p 21 text and note 11 [b]. Protest by notary in, as being void see Notaries [29 Cyc 1075]. Validity of agreement for sale of bonds of see Contracts [9 Cyc 476]. 12. Webster Int. D. 13. Confederation: By one state with another, constitutional prohibition of see States [36 Cyc 835]. See also Confederacy ante p 414. 14. 15. Black L. D. Webster Int. D. [a] "To confer a title of nobility, is to nominate to an order of persons to whom privileges are granted at the expense of the rest of the people. It is not necessarily hereditary, and the objection to it arises more from the privileges supposed to be attached, than to the otherwise empty title or order." Horst V. Moses, 48 Ala. 129, 142. 16. Webster Int. D. [a] Thus, a meeting between a counsel and solicitor to advise on the cause of their client is termed a conference. Black L. D. [b] In the practice of legislative bodies, when the two houses cannot ågree upon a pending measure, each appoints a committee of "conference," and the committees meet and consult together for the purpose of removing differences, harmonizing conflicting views, and arranging a compromise which will be accepted by both houses. Black L. D. 18. Black L. D. confessio 22%. Roman Law.-"A must be an admission of the right of the plaintiff, as well as of the facts supporting the claim (D. 42, 2, 5.)." Hunter Rom. L. 1003. Spain.-"Confession is the answer which one party makes to the other in court, by which he acknowledges something to be true." Las Siete Partidas III tit XIII ley 1. This refers to a judicial confession only. 2213. Mascardus de probatione I; Quæstio VII n 1, 10, 11. 2214. Spain.-Civ. Code art 1232. Louisiana.-Civ Code art 2270. Philippine.-Civ. Code art 1232 (according to the late Justice Willard [Notes Spanish Civ. Code 71] 2214 Porto Rico.-Civ. Code § 1200. Bolivia. Civ. Code art 1105. Chili. Civ. Code art 1713. Colombia.-Civ. Code art 1769. con France. Bonnier Traite des Preuves (where the author says that it is a play on words, to reproduce to the contrary the opinion of the ancient writers, according to whom confession is not proof, but dispenses with all proof, for, he says, this conclusive force of a confession does not obtain in criminal law, nor even in all civil matters.) Compare Civ. Code arts 1316, 1356. Germany.-Mittermaier Proof Cr. Cas. (4th ed) pt IV c 2. VI. Holland.-Civ. Code art 1962. Italy.-Ricci Teoria del Prove tit Compare Civ. Code art 1356. Portugal.-Civ. Code art 2412. Uruguay.-Civ. Code art 1569. Venezuela.-Civ. Code art 1330. 22. Spain. Civ. Code art 1231. Philippine.-Civ. Code art 1231. Porto Rico.-Civ. Code § 1199. France. Civ. Code art 1359. Holland.-Civ. Code art 1368. Italy. Civ. Code art 1365. Portugal.-Civ. Code art 2411. Venezuela.-Civ. Code art 1338. 2216. Roman Law.- See tit De Confessie, Digesta, lib XLII tit II; Codex lib VII tit LIX. Spain. "There are various kinds of proof by which men may support their pretensions: as by the confession of a party against himself, made either in, or out of court, in the manner we have before shown in the laws which treated of that matter; or by witnesses who concur as to the fact, and who, on account of their character, or from the nature of their testimony, are free from reproach; or by writings executed by the hand of a notary public; or by any legal credible evidence, as will be fully explained in the laws of this title." Las Siete Partidas III tit XVI ley 8. 2214. See Paige v. Cagwin, 7 Hill (N. Y.) 361, 368 (an action on a note, where it was observed: "The confessions of Van Dyke were at the time of the trial claimed to be admissible on the ground that he was still the owner of the note in question; but the circuit judge refused to admit them, holding that, as the evidence then stood, Cagwin was the party beneficially as well as legally inter 22% 66 fessed" in a civil cause." Equally unsound is the attempt to restrict the term "admissions" to civil cases. 22% A more logical distinction between these terms, and one which finds support in authoritative usage, is that which gives to 'confessions" the meaning of statements which cover the whole case against the party making them,22% and uses the term "admissions" as referring to statements which are adverse to such party, but which do not relieve his opponent of the necessity of producing other evidence.221 It is true that the term "admissions" is not known in the civil law, and that the former is sometimes applied to partial as well as to complete statements adverse to the party making them,2 22 but the restriction of the term "confessions" to the sense above suggested will at least open the way to a common terminology in the two systems, and lead to greater clearness of expression in the Anglo-American law. [3] C. History. As far back as the Twelve Tables 22 and probably much earlier, we find in the Roman law a recognition of the principle embodied in the maxim, Confessus pro judicato est (confession is equivalent to judgment).22 ested. I think his decision was correct"). Admissions see Evidence [16 Cyc 938]. 221. See Equity [16 Cyc 490]; Judgments [23 Cyc 699]. 2216. "The accused in a criminal case may make admission, just as a party in a civil case, i. e. by saying things inconsistent with the present point of his proof. Admissions, in the sense of inconsistencies, are not peculiar to civil cases.' Wigmore's note to Greenleaf Ev. (16th ed) 170-a note p 293. U. S.-"The argument is, that the testimony is not admissible, because, in criminal cases, the declarations of the master of the vessel, are not evidence to charge the owner with an offence; and that the doctrine of the binding effect of such declarations by known agents, is, and ought to be, confined to civil cases. We cannot yield to the force of the argument." Per Story, J., in U. S. v. Gooding, 12 Wheat. (U. S.) 460, 469, 6 L. ed. 693. Connecticut.-State V. Willis, 71 Conn. 293, 314, 41 A 820 (a prosecution for murder in which the accused made a declaration to the sheriff which "consisted in a statement that the accused had pawned the watch taken from the murdered man, at a described pawn-shop in Philadelphia, and was offered in connection with evidence identifying the watch and proving that it was found in pursuance of the statement of the accused at the place described. This declaration was admissible, no matter what promises had been previously made"). Philippine.-U. S. v. Ching Po, 23 Philippine 578, 583, 11 Off. Gaz. 58; U. S. v. Maquilan, 10 Philippine 193. 2210. In the Anglo-American law, confessions are direct assertions of guilt on the part of the accused (I Wigmore Ev. § 821; 1 Greenleaf Ev. $213; Thayer's Cases 285 note). Hence the term is broader than mere admissions and does not include them. U. S.-Ballew v. U. S., 160 U. S. 187, 16 SCt 263, 40 L. ed. 388. But see Bram v. U. S.. 168 U. S. 532, 18 SCt 183, 42 L. ed. 568. California.-Peo. v. Miller, 122 Cal. 84, 54 P 523. Georgia.-Shaw v. State, 102 Ga. 660, 29 SE 477. Iowa. State v. Knowles, 48 Iowa 598. Louisiana.-State v. Picton, 51 La. Ann. 624, 25 S 375, Thayers Cases 112. The Twelve Tables themselves expressly affirm 22% the validity of in jure cessio,22% a proceeding which depended wholly on that principle. Later, the rule was extended to other proceedings and the confessio in jure became eventually a very common practice in Rome.2 22/T [4] D. Kinds. The civil law has always drawn a marked distinction between judicial and extrajudicial confessions.22% Judicial confessions are the ordinary confessions, and the phrase "confessio in jure" is derived from the fact that it was always made before the prætor at the first stage of a trial under the formulary procedure.22% A judicial confession must now usually be made under oath before a judge of competent jurisdiction and when the party profiting thereby is represented.22% Extrajudicial confessions are self-disserving statements made outside of court22 1/21 and lacking the other formalities of a judicial confession. Decisive oaths. Under the Roman law a party might demand of his adversary answer under oath which, if self-disserving, afforded a basis for judgment. This was known as jusjurandum in jure.22 1/22 Philippine.-Act 619 § 4; G. O. 58, $25; U. S. v. Magtibay, 2 Philippine 703, 1 Off. Gaz. 932. Confessions do not include a plea of guilty ignorantly made at the preliminary investigation (U. S. v. Tolosa, 5 Philippine 616), nor mere silence or refusal to deny or to explain (U. S. v. De la Cruz, 12 Philippine 87, 92, 6 Off. Gaz. 1833; U. S. v. Luzon, 4 Philippine 343; U. S. v. Navarro, 3 Philippine 143, 2 Off Gaz. 551). England.-Crossfield's Case, 26 How. St. Tr. 1. 2211. "The truth seems to be that under the term 'admission' are included two things, wholly distinct in evidential theory and effect. (1) A deliberate and formal waiver, made usually in court or by writing preparatory to trial, by the party or his attorney, by conceding for the purposes of the trial the truth of some alleged fact, has the effect of a confessory pleading, in that the fact is thereafter to be taken for granted and the other party need offer no evidence to prove it. This is what is commonly termed a solemni. e. ceremonial or formal-or judicial admission, and is in truth, as above suggested, a substitute for evidence, in that it does away with the need for evidence. (2) Statements by a party, other than these, are also termed admissions." Greenleaf Ev. (16th ed) § 169. 221/12. "A confession is a declaration by a person acknowledging a fact tending to produce judicial consequences contrary to his interest." Bonnier Traite des Preuves § 347. 2213. Sohm Rom. L. (3d ed) 56 and note. 2214. Sohm Rom. L. (3d ed) 56. 22115. Table VI 1, 12. been utilized for developing a new kind of private juristic act-the act of transferring ownership by means of a fictitious vindicatio (in jure cessio)-and one the validity of which could be represented as resting on the Twelve Tables. The same process could be utilized for establishing patria, potestas and effecting the manumission of a slave by means of a fictitious vindicatio 'in patriam potestatem' and 'in libertatem' respectively. Thus in jure cessio became the medium through which a whole host of new juristic acts were introduced into the working system of Roman law." Sohm Rom. L. (3d ed) 57. 2217. Hunter Rom. L. 1003. 2218. Spain.-Civ. Code art 1231. "There are three kinds of confessions: the first is that which a party makes in court, in presence of his adversary, of which we spoke in the preceding law: the second is, that which one person makes to another, without compulsion, out of court: the third is, where any one confesses when compelled by force or torture." Las Siete Partidas tit XIII ley 3. Philippine.-Civ. Code art 1231. Porto Rico.-Civ. Code § 1199. Chili. Civ. Code art' 1713. France. Civ. Code art 1354. Holland.-Civ. Code art 1960. Italy. Civ. Code art 1355. Portugal.-Civ Code art 2409. Uruguay.-Civ. Code art 1567. Venezuela.-Civ. Code art 1334. 2219. Sohm Rom. L. (3d ed) 225. 226. 2220. Spain. Civ. Code art 1235. Louisiana.-Civ. Code art 2270. Philippine.-Civ. Code art 1235 (although the late Justice Willard [Notes Spanish Civ. Code 71] considered this repealed by the code of civil procedure). Porto Rico.-Civ. Code § 1203. Bolivia.-Civ. Code art 1105. Chili.-Civ. Code art 1714. France.-Civ. Code art 1356. Holland. Civ. Code art 1981. Italy. Civ. Code art 1356 (providing that the judge need not be competént). 2216. "If a person confessed before the magistrate that his opponent in the action was the owner, he was divested of his ownership, provided that at the moment of the confessio he was still owner. This suggested a general method of transferring ownership. If A desired, on any legal ground whatever, to transfer his ownership in a thing to B, A and B would go before the magistrate, B (the intended transferee) would claim ownership as fictitious plaintiff, A (the intended transferor), as fictitious defendant, would admit 2221 Italy.-Civ. Code art 1357. his title, and the magistrate would 2222. "An affirmation confirmed by then pronounce his award (addictio) oath was occasionally a means of in favour of the transferee. Thus facilitating a trial or determining a the transferor was divested of his case. (D. 12, 2, 1.) Such an oath ownership and the transferee was in- could be made with effect only when vested with it. A rule of procedure it was given in answer to the de(confessus pro judicato est) had mand of an adversary. An oath Portugal.-Civ. Code art 2410. Venezuela.-Civ. Code art 1330 (providing that the judge need not be competent). The codes of various civil law countries have retained this proceeding in some form, treating, as a confession, both the self-disserving oath,22 1/23 and the refusal to make oath.22 1/24 An oath thus taken cannot be contradicted by other evidence,22 1/25 and is available for or against the parties who submit to it, their heirs and legal representatives.22 1/26 By some of the codes the oath proffered a debtor by one of the creditors to whom he is jointly and severally liable releases the former as to the latter's portion only; but an oath proffered as to the debt to a principal releases the sureties and vice versa; and an oath proffered one of joint and several debtors benefits the others.22 1/27 By other codes the oath cannot be demanded on incriminating facts nor on questions not subject to compromise.22 1/28 [5] E. Admissibility and Effect. By the Roman law "a voluntary admission of the plaintiff's claim by the defendant made it unnecessary to resort to a judex, and had, although at one time there seemed to be some doubt on the point, the same effect as a judgment by the judex." 22 1/29 A confession loses its force and may be excluded if shown to have been made under a mistake of fact, but not for a mistake of law.22 1/30 So it is some volunteered by a party had no efficacy. (D. 12, 2, 3 pr.) This mode of terminating litigation was viewed by the law in a somewhat peculiar light. The reference to the oath of an adversary was considered of the nature of a bargain or compromise. a new contract upon which either party could proceed. (D. 12, 2, 2; D. 12, 2, 26, 1.) Thus if the oath were favourable to the party who swore, he could repel any future action on the subject thereby settled by an equitable defence of agreement; if it were unfavourable, his adversary could sue him in an action in which the only question to be tried would be, whether the defendant had sworn as alleged, (D. 12, 2, 9, 1.) As a result of this view, it seems to follow that there was no remedy, except a new trial, for perjury (D. 12, 2, 31); and, indeed, from the nature of the case, it may be inferred that an oath was never put until all other means of evidence were exhausted (D. 12, 2, 31.)" Hunter Rom. L. 1005, 1006. 3 Blackstone Comm. p 342 [cit Codex IV L XII] calls attention to the similarity between "wager of law" (compurgation) and "the sacramentum decisionis, or the voluntary and decisive oath of the civil law." 2223. Spain-Civ. Code art 1236 et seq. Philippine. Civ. Code art 1236 et seq. (claimed by the late Justice Willard [Notes Spanish Civ. Code 71] to have been repealed). Porto Rico.-Civ. Code § 1204 et seq. Chili. Civ. Code art 1714. 224. Spain.-Civ. Code art 1236. And see other references in preceding note. 22145. Spain. Civ. Code art 1238. Philippines.-Civ. Code art 1238 (claimed by the late Justice Willard [Notes Spanish Civ. Code 71] to have been repealed). Porto Rico.-Civ. Code § 1206. [12 C. J.-27]} times provided that a confession is not evidence against its author if such result would render possible an evasion of the law.22 1/31 The confession cannot, usually, be divided so as to be used in part only against the confessor,22 1/32 although some codes except confessions which relate to distinct facts, or parts of which are otherwise proved, or are contrary to nature or law.221/33 Subject to the exceptions above noted, judicial confessions are admissible and afford competent evidence against the author.22 1/34 Such force has not usually been accorded, however, to extrajudicial confessions, in the Roman and civil law.22 1/35 The later Spanish law treats the extrajudicial confession as a circumstance to be weighed, according to the ordinary rules of evidence, in connection with other items of proof.22 1/36 CONFESSIO FACTA IN JUDICIO OMNI PROBATIONE MAJOR EST.23 CONFESSIO FACTI. Admission of a fact.2 24 CONFESSIO IN JUDICIO. A confession made in or before a court.25 2226. Spain. Civ. Code art 1238. Porto Rico.-Civ. Code § 1206. 1347. 2227. France.-Civ. Code art 1365. 22130. Spain. Civ. Code art 1234. Porto Rico.-Civ. Code § 1202. Porto Rico.-Civ. Code § 1200. Philippine. Civ. Code art 1233 Porto Rico.-Civ. Code § 1201. Porto Rico.-Civ. Code § 1201. been repealed). Porto Rico.-Civ. Code § 1200. Bolivia.-Civ. Code art 1105. Chili. Civ. Code art 1713. Colombia.-Civ. Code art 1769. France. Civ. Code art 1356. Italy. Civ. Code art 1356. Portugal. Civ. Code art 2412. Uruguay. Civ. Code art 1569. Venezuela.-Civ. Code art 1330. 22135. Roman Law.-"Such naked confessions amounted only to semiplena probatio, upon which alone no judgment could be founded; and at most the party could only in proper cases be put to the torture. But if voluntarily made, in the presence of the injured party, or if reiterated at different times in his absence, and persisted in, they were received in plenary proof." Greenleaf Ev. (16th ed) § 217. a Spain.-Forum Judicum bk VII tit V, II; Las Siete Partidas III, tit XIV ley 7. Compare Ley Provisional art 52/2; Sentence Supr. Trib. Dec. 16, 1864, 10 Jur. Civ. 491. For the later law see Civ. Code art 1239. Louisiana.-Civ. Code art 2269. Porto Rico.-Molina v. Martinez, 3 Porto Rico 204, 215 (1903, before present Evidence Act). For the general Anglo-American rule see 2 Wigmore Ev. § 1069. Bolivia. Civ. Code art 1412. Chili. Civ. Code art 1714. France.-Bonnier Traite des Preuves, 357. "The allegation of an extra-judicial confession which is purely verbal is useless whenever the action is one in which oral evidence would not be received." Civ. Code art 1355. Germany.-Mittermaier Proof Cr. Cas., pt IV ch 2. Holland.-Civ. Code arts 1964, 1965. Italy. Civ. Code art 1358. Ricci Teoria del Prove 8 234; Decision of Supreme Tribunal of Naples of Febr. 1, 1873 (Anales VIII, I, 427). Portugal.-Civ. Code art 2416. Uruguay.-Civ. Code art 1571. Venezuela.-Civ. Code art 1331. 2236. Spain.-Civ. Code art 1239; Manresa Codigo Civ. VIII 544. Philippine.-Civ. Code art 1239 (claimed by the late Justice Willard [Notes Spanish Civ. Code 71] as repealed). Porto Rico.-Civ. Code § 1207. 23. A maxim meaning "A confession made in court is of greater effect than any proof." Black L. D. Anderson L. D. Black L. D. Anderson L. D. 24. 25. 26. |