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Of Triall by wager of Law.
IN some cases also the triall shall bee by the Defendants oath, which wee call * 1.1 waging of his Law. As 1. where the te∣naunt in a praecipe quod reddat alledgeth that he was not lawfully sommoned ac∣cording to the Law of the land. 2. in meere personall contracts, wee call them simple contracts, as (a) 1.2 debts for money lent, or
rent vpon a lease for yeares of a stocke of sheepe, or such like: (but (c) 1.3 not vpon a lease of land. And though it be of land sto∣red 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, * 1.4 or of a lease for years of land, nor in an acti∣on vpon the case, for it is not by reason of any contract growing without deed, for in debt vpon sale of a horse for x. l. if the plain∣tife haue a specialtie of it, he shall estoppe the defendant to wage his Law. But vpon 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 ta∣king * 1.5 of it backe againe, &c. or priuitie of o∣thers, for in detinue vpon 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 vpon a Contract by another mans hand. But not in accompt vpon receit by a∣nother mans hand, for there he must answer to the receit: the defendant may wage his law. Therefore in such kind of actions ex∣exutors * 1.6 are not chargable, as in debt vpon sale of goods to the Testator, & (b) 1.7 though the partie haue a taile ensealed of it, for that is no specialtie: or for (c) 1.8 wages due by the Testator vpon a retainer. Otherwise it is in
such an action brought by a Laborer (who is bound by Statute to serue) in (d) 1.9 debt vp∣on arrerages of an account made by the Te∣stator before Auditors (who are Iudges of record) or (e) 1.10 vpon a lease for yeares though it bee made without deed, for in none of these cases the testator could wage his law.
No wager of Law shall bee against the * 1.11 King. Therefore in an attachment vpon a prohibition the partie shall not wage his law that he did sue forward contrary to the Kings prohibition, for the King is quod amo∣do party of the contempt. And for this cause * 1.12 also, debt vpon 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 haue waged his Law.
Magn̄ chart. cap. 28. Wager of Law shall not bee admitted without credible witnesses.
5. H. 4. cap. 8. In actions of debt vpon the arrerages of an accompt fayning to the in∣tent (to put the defendants from their law) that the same was found before their Ap∣prentices or seruants Auditors assigned in, shall be in the Iudges discretion vpon exa∣mination
of the Atturnies, or whom else they please to receiue, or oust the defen∣dants of their law.
3. In plaints in Court Barons personall things vnder 40. s. yet (by pre∣scription) * 1.13 it may be by Iurie: which i•• a∣gainst the common course and order of it.
22. H. 6 41.
1. H. 6. 1.
9. E. 4. 1.
34. H 8. Br. leyga∣ger 97. 18. E. •• 23. 39 H 6 35. ••7. H. 8. 22.
18. H. 8. 3.
15. E. 4. 25.
2••. E. 3. 40.
11. H. 6. 48.
10 H. 6. Execut. 21.
Br. Execu. 33.
24 E. 3. 39. 18. E. 3. 4.
50. E. 3. 5.
1••. H. 7. 18.