Law, Book 4 · Chapter 37 – Chapter 40
CHAP. 37.
Of Triall by Battaile.
IN (a)Old Nat. Br. 1writs of right and in appeales (b)See the manor of waging battails and performing it. 9. H. 4. 3. in an appeale of robberie 17. E. 3. 2 …n an appeale of murder.that touch life, triall may be by battaile at the Defendants choice. Therefore (c)Old N. B. ibid. 9. E. 4. 35.the Demaundant in a Writ of right had neede alwayes to hauehave his Champion readie, elſe he may happen to be deceiued.
The battaile in a writ of right muſt be all by Champions. Therefore in a writ of right an Infant may ioyne the Miſe & trie it by battaile. So can he not in an appeale, for there it muſt be done in proper perſon: which Champions muſt bee (a)Br. Chal. 1 96.freem…n, not villeins, & (b)3. H. 6. 55.ſo is the iſſue takē that he is readie to defend it by the body of I. S. a freeman. Therefore (c)Bracton.for the Lord to offer his villein for his Champion in a writ of right, or in an appeale, is a manumiſſion of him. And the Demaundants champion Westm. 1. cap. 40. ſo reciteth i….muſt hauehave ſeene him or his aunceſtors i… poſſeſſion, and thereof take his oath.
Statutes.
Weſtm. 1. ca. 40. Touching the oaths of the Champions it is thus prouided, becauſe it ſeldome happened, but that the Champion of the demaundant is forſworne, in that he ſweareth that hee or his father ſaw the ſeiſin of the land or his anceſtor. And that his father commanded him to deraigne the right, that from henceforth the Champion of the demaundant ſhall not be compelled ſo to ſweare.
The battaile in an appeale muſt bee in …. E. 4. 35.proper perſon. And therefore there the Defendant is reſtreined from the choiſe of battaile, and muſt needs trie it by Iurie. If there be any notorious preſumption of the fact in him, as that hee brake priſon, or eſcaped (a) 1. aſſ. Pl. 6.by flight beeing led towards priſon for it, or was (b)22. E. 4. 19.endited for it. So in an appeale of murder, that he was taken in the act with a (c)6. H. 3. Coro. 411.bloudy knife, in an appeale of robberie, that vponupon freſh ſuite and hue and crie hee was taken with the manner, hauing ſome of the money about him, or 22. E. 4. 29.of imbecilitie in the Plaintife, as if he bee may med, or within age, &c.
But againſt a Peere of the Realme Diſcourſe of the Cuſt. of London. fol. 13. Stam. 108.bringing an appeale, the Defendant ſhall not wage battaile, much leſſe againſt the king either vponupon an enditement or appeale.
6. Ric. 2. cap. 6. Ouſteth battaile in an appeale of rape.
CHAP. 38.
Of Triall by witneſſe.
IN a writ of dower iſſue taken vponupon the 8. H. 6. 23.death of her husband ſhall bee tried by witneſſes. So ſhall no other caſe in the Law.
CHAP. 39.
Of Triall by wager of Law.
IN ſome caſes alſo the triall ſhall bee by the Defendants oath, which wee call 22. H. 6 41.waging of his Law. As 1. where the tenaunt in a praecipe quod reddat alledgeth that he was not lawfully ſommoned according to the Law of the land. 2. in meere perſonall contracts, wee call them ſimple contracts, as (a)1. H. 6. 1.debts for money lent, or rent vponupon a leaſe for yeares of a ſtocke of ſheepe, or ſuch like: (but (c)9. E. 4. 1.not vponupon a leaſe of land. And though it be of land ſtored with beaſts, yet the defendant ſhall not wage his Law for the rent due for the beaſts, for it is all but one entire contract) detinue of a horſe, or other perſonal thing: but not of a deed indented, or obligation, 34. H 8. Br. leygager 97. 18. E. … 23. 39 H 6 35. …7. H. 8. 22.or of a leaſe for years of land, nor in an action vponupon the caſe, for it is not by reaſon of any contract growing without deed, for in debt vponupon ſale of a horſe for x. l. if the plaintife hauehave a ſpecialtie of it, he ſhall eſtoppe the defendant to wage his Law. But vponupon detinue and count of a bailement by deed, yet the defendant may wage his Law, for detinue is the cauſe of the action, which may bee diſcharged by matter en fait, as the defendants redeliuerie, or the plaintifes taking 18. H. 8. 3.of it backe againe, &c. or priuitie of others, for in detinue vponupon a bailement by another mans hand, the defendant may wage his Law, becauſe he is not to anſwer to the bailement, but to the detinue. So in debt vponupon a Contract by another mans hand. But not in accompt vponupon receit by another mans hand, for there he muſt anſwer to the receit: the defendant may wage his law. Therefore in ſuch kind of actions exexutors 15. E. 4. 25.are not chargable, as in debt vponupon ſale of goods to the Teſtator, & (b)2…. E. 3. 40.though the partie hauehave a taile enſealed of it, for that is no ſpecialtie: or for (c)11. H. 6. 48.wages due by the Teſtator vponupon a retainer. Otherwiſe it is in ſuch an action brought by a Laborer (who is bound by Statute to ſerue) in (d)10 H. 6. Execut. 21.debt vponupon arrerages of an account made by the Teſtator before Auditors (who are Iudges of record) or (e)Br. Execu. 33.vponupon a leaſe for yeares though it bee made without deed, for in none of theſe caſes the teſtator could wage his law.
Prerogatiue.
No wager of Law ſhall bee againſt the 24 E. 3. 39. 18. E. 3. 4.King. Therefore in an attachment vponupon a prohibition the partie ſhall not wage his law that he did ſue forward contrary to the Kings prohibition, for the King is quod amodo party of the contempt. And for this cauſe 50. E. 3. 5.alſo, debt vponupon a ſimple contract ſhall not be forfeit to the King by outlawry, for then the partie were in worſe caſe then before, where he might hauehave waged his Law.
Statutes.
Magn̄ chart. cap. 28. Wager of Law ſhall not bee admitted without credible witneſſes.
5. H. 4. cap. 8. In actions of debt vponupon the arrerages of an accompt fayning to the intent (to put the defendants from their law) that the ſame was found before their Apprentices or ſeruants Auditors aſſigned in, ſhall be in the Iudges diſcretion vponupon examination of the Atturnies, or whom elſe they pleaſe to receiue, or ouſt the defendants of their law.
3. In plaints in Court Barons perſonall things vnderunder 40. s. yet (by preſcription) 1…. H. 7. 18.it may be by Iurie: which i… againſt the common courſe and order of it.
CHAP. 40.
Of Demurrers.
AN iſſue of the Law which we call a demurrer, is when admitting the 7. E. 6. Pl. 85.matters alledged either of them reſteth in the iudgement of the Law. The forme of ioyning a demurrer is, Et praed. quer' dicit quod placitum praed. definimus ſufficiens in lege exiſtit ad ipſum, the Plaintife, ab actione ſua praed. &c. praecluden. quodque ipſe ad placitum illud modo & forma placitatum neceſſe non habet, nec per legem terre tenetur reſpondere, vnde pro defectu ſufficient. reſponſionis petit Iudicium, &c. Et praed. Def. ex quo ipſe ſufficient. mater in lege ad praed. quer' ab actione ſua praed. verſus eum habend. praecludend. ſuperius allegauit quam ipſe paratus eſt verificare, quam quidem … praed. quer' non dedicit, nec ad eam equa… reſpondet, ſed verificationem illam admitte… recuſat petit Iudicium: & quod praed. quer' ab actione ſuo praed. verſus eum habend. praec… datur.
This beeing ioyned vponupon an exception 50. E. 3. 20.to the originall it ſelfe or count for ſome fault appearing in it, doth onelyonly driue the defendant to make a better anſwer, which we call a reſpondes ouſter, if it paſſe againſt him.