The touchstone of precedents, relating to judicial proceedings at common law by G.F. of Grayes-Inn, Esquire.

Wager of Law.

IN Debt for an Amerciament in a Court-Baron 'tis said one cannot wage Law, But two or three Presidents are there cited, where in such Cases Wager has been, Mo. Pl. 430.

In Debt by an Attorney for his Fees the Defendant cannot wage Law, But for Mo∣nies laid out by him as a Solicitor he may, Rolls versus Jermin. Mo. Pl. 500.

Tenetur that the Defendant cannot wage Law in Account for the profits of Lands, Popworth versus Archee. Mo. Pl. 670.

A wager of Law may be done by eight, ten or twelve hands, As the Court shall appoint; The Party is to swear directly that he oweth or detayneth nothing, The Compurgators, that they beleive that he ow∣eth or detaineth nothing, Term. Ley. 341.

Cooke sayes Debts by simple Contract, are forseited by Outlary, though it puts by the party his Wager of Law, and so he

sayes is the latter opinion of the Books and of the Judges now, And he sayes in every Quo minus by the Kings Debtor it puts the Defendant by his Wager of Law, for the benefit of the King though not par∣ty à fortiori where the King is adjudged party, Slades Case, Co. 4. Rep. 93. a. 95. a b. 9 Rep. 88. a. 89. b.

In Debt for Arrearages of Account be∣fore one Auditor, the Defendant may wage his Law, because not within the Sta∣tute of W 2. Ca 11. unless two Auditors, And so if the Lord be found in Surplus in Debt against his Servant, it may be waged, because not within the Statute, which is made only as to Accountants, the rest be∣ing determinable at Common-Law, Debands Case 38 H 6. 5. b. contrary to this last, Co. 10. Rep 103 a.

'Tis said that Ley gager lies not before Justice of Peace or Justice of Oyer and Termi∣ner or any other inferior Court, but those at Westminster, Therefore an Information up∣on 23 H. 8. against Brewers to be brought at Westminster, not in the proper County, because the Statute, Ousts Ley gager; and so intends such Courts wherein it lay. Vide Kitchin. 494. b. Ley gager, the proper Try∣al in Court-Baron, and Per Pais. 1 Cro. 79. 104. Co. 4. Inst. 64. 65.

Commissioners of Bankrupt assign a Debt due by simple Contract to the Bankrupt; in Debt the Defendant may wage Law against the Assignee of the Commissioners, as well as he might have done against the Bankrupt; though obj. they coming in by Act of Parliament, 'tis quasi a Debt of Re∣cord, for that alters not the Law: quoad Wager. Morgan against Green. And so 'tis adjudged also, 2 Cro. 105. Bradshaw's Case, and Noy 112. 1 Cro. 135. 2 Cro. 105.

Debt by an Attorney for his Fees, De∣fendant cannot wage his Law, because the Plaintiff was compellable to be an Attor∣ney: but in Debt, by a Serjeant at Law, for 10 l. to be of his Counsel, for two years, the Defendant may wage Law; yet dict. the Serjeant was compellable to be of his Coun∣sel, but it seems, not for two years, nor are those his certain Fees appointed by the Law. 3 H. 6. 33. b. 34. a. In Debt, for 20 l. by Serjeant at Law. Good.

Debt against a Successor of an Abbey, and Counts of a Sale of Goods, by Deed to the Predecessor, which came to the use of the House, it seems the Defendant may wage Law, notwithstanding the Contract was by Deed, and by the Predecessor; for, the Deed binds not, had it not come to the use of the House: and that being it which main∣tains the Action, 'tis not material, though

it was the Predecessors Contract, Sed ibidem by Ascue, and not denyed: If I sell Goods to the Servant of J. S. and they come to the use of J. S. he cannot wage Law, because de auter Contract: but if my Servant sells my Goods to J. S. in Debt he may wage Law, because 'tis my Sale by my Servant, qu. Diversitatem. 21 H. 6. 23. a.

Detinue of three Tallies, the Defen∣dant wages Law; and so it seems he might, if it were a free Obligation. 21 H. 6. 30. a.

Detinue and Counts of a Delivery in London: If the Delivery were in Middlesex the Defendant may wage Law by Newton, and not denyed, Quia non detinet modo & forma, &c. And so if in Debt, and suppose the Delivery in Middlesex, and it was in Truth in Essex. 21 H. 6. 25. b.

In Detinue of Charters and other Wri∣tings, the Defendant wages Law as to the other Writings; but as to the Charters on∣ly, he pleads in Bar 38. H. 6. 21. In Deti∣nue of a box of Charters sealed, it seems he may wage, unless he counts of some Inspect. 21 H. 6. 24. a. 22. H. 6. 15. b.

In Debt against a Lombard, the Receipt is to be read to him in the Language which he understands, and in his own Language he is to wage his Law, not in French or Latine. 21 H. 6. 42. a.

Debt against one, and counts that he set A. and B. to board with the Plaintiff, at 15 s. a Week; the Defendant wages Law, and so it seems might A. and B. (the parties that took the Board) have done, if the Acti∣on had been brought against them. 22 H. 6. 13. b.

Debt, and Counts of Arrearages of Ac∣count before Auditors. It appears, the Parties by Deed submitted the Account to Award of Arbitrators, who awards 20 l. for which, the Action is brought; the De∣fendant wages Law, and may, for this is but an Award, and not Arrearages, found by Auditors of the Account, and ibi∣dem, 23 H. 6. In Arrearages of Account the Defendant pleads Riens lui doit, and prays, the Attorney of the Plaintiff might be exami∣ned, who could not; if the Defendant wage Law, he shall not make it present, but have day to do it. 22. H. 6. 41. a. 33. H. 6. 24. a.

In Debt, upon an Insimul computaverunt, against four whereof, one was out-lawed, one of the other waged his Law alone, and though opposed, resolved he may do it, and so did make his Law; and the Plaintiff was Nonsuit. Hob. 244. Essington against Butcher.

Wager of Law must be duodecima manu, the Party himself de fidelitate, the other ele∣ven

to be sworn de credulitate, so is equal to a Jury. Vid. Mag. Ch. 1. 28 Co. 1. Inst. 295. a.

When one has any thing of common Right, or by Course of Law, the same may be enlarged by Prescription, as the Lord has Court-Baron of common Right, and by Course of Law, all Pleas therein are deter∣mined therein by Wager of Law, yet the Lord may prescribe to determine them by Jury. Co. 2. Inst. 143.

In Debt, upon an Account before Audi∣tors, brought either by the Master against the Accountant, or the Accountant against the Master for Surplus, the Wager of Law lyes: for the Auditors by Westminster 2. 11. are Judges of Record, the Statute being in the nature of their Commission. Co. 2. Inst. 308.

Where the Statute gives a Forfeiture to be recovered in any of the King's Courts, wherein no Wager of Law, Essoin or Pro∣tection, shall be allowed. Per Co. 4. R. 55. It may be in a Case where no Essoin lyes; for 'tis Reddere singula singulis; viz. There shall be no Essoin if they lye in the C. But 1 Cro. in Faringdon and Comer's Case, p. 79. and Green's and Girle's Case, p. 104. the contrary is held by the Court. Co. 4. Inst. 64. 65.

In Debt, upon the Statute of Coppi∣ces, the Defendant would have waged his

Law, but could not, the Action being grounded upon a Statute, 9 H. 3. a. No Wager in Debt for Arrearages in Account before Auditors, aliter, on Account to the Plaintiff. H. 10. H. 7. Pl. 18.

No Wager of Law can be against a Spe∣cialty, (as if I deliver a Charter to another by Indenture, and the Bailiff dye, Detinue lyes against his Executor, by reason of the Indenture) nor against a Receipt Per auter maines, in account. Dyer, 265. a. vi. 39 H. 6. 35. a.

Detinue on a Contract of Goods bailed, the Defendant may wage his Law, or plead non Detinet. Dy. 30. a.

In such Actions where the Defendant is put from his Wager in Law, there he may traverse a point that is but inductive to the Action, and not a point of the Action; as in Debt, upon a Lease he may plead non di∣misit. In Debt, for Arrearages of Account he may plead non computavit; but in Debt, for Money or Wares, sold to him, he may plead non debet, and traverse, that he sold them. Dyer 121. b.

In Account, the Defendant pleads ne un∣que Receiver, and waged Law thereon, and had day, and at the day, would have wa∣ved his Law for part, and confessed the Action for it, and waged Law for the Re∣sidue: per Curiam he cannot without the Plaintiffs assent. Dy. 261. a.

'Tis held, that at the Common Law, he that waged Law in a Court of Record, was to bring with him Fideles Testes, where∣with Glanvil agrees, Lib. 1. C. 9. But in in∣feriour Courts, one might wage Law with∣out Witnesses; to prevent which, was Magn. Ch. 28. made Nullus Ballivus ponat aliquem ad legem, &c. sine testibus fidelibus ad hoc inductis. Others hold, that Ballivus there extends to all Judges. Co. 1. Inst. 168. b.

An Infant cannot wage his Law, but the Husband and Wife, for the Debt of the Wife, may: 18. E. 3. 53. a. A Mute wages Law by Signs. Co. 1. Inst. 172.

Wager of Law is not allowed in any case where a Contempt, Trespass, Deceit or In∣jury, is offered; but 'tis allowed in some Cases, in Debt, Detinue, and Account; 'tis not allowed when there is a Specialty. Co. 1. Inst. 295. a.

One Infamous cannot wage Law, nor an Infant, but a Fem•• Covert with her Hus∣band, may. No Wager lyes where the Suit is for the King, or his Benefit, by Quo minus; no Wager against an Infant. An Alien must wage Law in his own Language. No Wager against Receipt, P••r auter maines on Account, unless his Wives or his Com∣panion. Bailiff of a Mannor cannot wage Law in Account, in Debt, for Rent, or

nue, for a Lease no Wager, because sound∣ing in the Realty.

It lyes in Debt for a Fine in a Leet, be∣cause a Court of Record; otherwise, for an Amercement. No Wager in Debt upon Ac∣count, before Auditors; otherwise, if but one Auditor. No Wager in Debt by a Goal∣er for Victuals, nor against an Attorney in Debt for his Fees, nor against a Servant re∣tained according to the Statute in Debt for his Wages. One charged as Executor, &c. shall not wage; no Wager in Debt for a Penalty given by a Statute. Co. Ent. 118. Pl. 1.

Error of a Judgment against an Executor in Bristol, upon a Concessit solvere per Cu∣stom, there to pay a Debt of the Testator, by simple Contract, because it takes from the Wager of Law, Cur' advise &c. Wigg against Roberts. H. 22. C. 1. b. r. Rot. 956. Pascal against Spurning. p. 1649. b. r. Rot. 75. Sti. 145. 198. 199. 228.

In Debt against Baron and Feme, for Beer sold to the Feme dum sola, they waged Law. So note, he waged Law for the De∣fendant. Hucks against Holmes, 3 Cro. 161.

Debt against an Executor for Money a∣warded to be paid by the Testator, it lyes not, for the Testator might have waged his Law, which the Executor cannot. Hampton against Bower. Sed vide Latch 213. Symonds Case.

no Wager of Law against an award, P. 1. H. 7. Pl. 18. 13. H. 3. Noy 96. No Wager against an Award, because the third Per∣son cannot 3 Cro. 557. 600. 11. H. 4. 56. b. Wager in Debt, for the Son award.

In Account against A. as Bailiff of his Mannor of D. the Defendant waged Law, and had day to make it: but, at the day, 'twas ruled, that Ley gager lyes not in this Case, being a matter tryable per Pais Ar∣chees Case. 3 Cro. 579.

Debt on a Contract against two, one pleads Nil debet per Patriam, the other wa∣ged Law; he cannot, but must plead per Patriam, being joyntly concerned in one Contract. 3 Cro. 645.

Debt sued by one in Chancery, a Servant to the Lord Keeper; Defendant, as to part waged Law, and to the Residue pleaded Nil debet per Patriam. And being sent in∣to the King's Bench, 'tis doubted if he may make his Law good, but, de bene esse, it was done, Audley against Franke. 3 Cro. 648.

In Debt for Money on sale of Land, doubt if the Defendant could wage Law, being on a real Contract, and resolved he may, and he did make his Law. Miller against Eastcrowe; and so 'tis held by Newton, 22 H. 6. 11. a. and not denyed, 3 Cro. 750.

In Account against one as Bailiff he can∣not wage his Law, but as Receiver he may.

Sheffeild against Barnefield. Note, it was Account against him as a Bailiff of Town∣goods, as Merchandize, not a Bailiff of a Mannor. 7 Cro. 790.

Debt against a Defendant for his Dyet, he would wage his Law, but could not, and pleaded, ad Pais. Bish against Walford, vid. 39. H. 6. The Court divided in this point, H. or E. 19: H. 6. 10. a. Per totam Curiam, he may wage in Debt for Dyet. 3 Cro. 818.

In Account, upon a Receipt by the hands of the Plaintiff's Wife, the Defendant was to wage his Law, because that is not a Receipt per auter maines, upon a Receipt by the hands of the Plaintiff's Wife, they be∣ing one Person. Goodrick's Case. 3 Cro. 919.

In Debt, against the Abbot of D. on a Contract by the Predecessor for Goods, that came to the use of that House, the Defen∣dant would to wage Law, Et per opinionem Curiae, he may: and vide there divers Ca∣ses, where one may wage Law on anothers Contract. Prior de Dunstable's Case. P. 1. H. 7. Pl. 18. M. 13. H. 7. Pl. 2. H. 22. E. 4. Pl. 39. H. 6. 22. a.

In Detinue of a Bailment per auter mains, the Defendant may wage Law; so in Debt, on a Contract per auter mains, otherwise on Account on a Receipt per auter mains; for

there the Receipt is traversable; but in the first Bailment 'tis not, but the Detinue. M. 18. H. 8. Pl. 15.

In a Writ of Right of Advowson, Grand Cape issued for default; the Defen∣dants came and offered to wage Law of Non-Summons; and because some said the Writ was peremptory, so as he could not have another, the Ley gager was respited. Tr. 27. H. 8. Pl. 2.

In Account, upon a Receipt at the Plain∣tiff's hands, though by Writ the Defendant shall wage his Law, and by Detinue upon a Bailment by deed, for he might take them again; and 'tis that Detinet is the cause of Action; not the Bailment. Er. 27. H. 8. Pl. 14.

Debt against J. S. he waged Law, and at the day, appeared to make it, the Plaintiff said, there is J. S. Senior, and J. S. Junior, and the Action brought against the elder, and this is the younger; and in tant' the elder makes default, prays Judgment. Er. 5. E. 4. Pl. 22.

In Debt for dyet, the Defendant may wage Law, whether the dyet were for himself or another. 22. H. 6. 13. b. But on a Lease of a House, &c. he cannot, but on a Lease of Goods or Chattels he may. No Ley gager in Debt for dyet of a Pentioner. P. 9. E. 4. Pl. 1. H. 15. E. 4. Pl. 2. Co. 9: R. 87. 6. 19 H. 6. 10. a.

Debt on a Contract, the Defendant pleads the Contract was made with him and Br. and abates the Writ; yet in another Acti∣on he may wage Law, though herein he confessed the Contract; for, he may have pleaded it after, per Littleton, and not deny∣ed, & ibidem, by him. In Debt against Baron and Feme on a contract by the Feme dum sola; both shall wage, though he a Stranger to the Contract; for, by the Mar∣riage he hath made himself lyable to it. And to this last agrees M. 15. E. 4. Pl. 4 Sed vide 33 H. 6. 43. b. If she make default at the day, 'tis the Default of both, and binds the Husband. 9 E. 4. 2. 4. b.

Debt and Counts of a Retainer, to shape and make such Cloaths; In this case, the Defendant may wage his Law, and in similiter, not against a Labourer, compel to wage by the Statute, 1 H. 6. 23. b. Not wage in debt by a Servant for his Wages. H. 16. E. 4. Pl. 3. Mo. Pl. 971. Co. 9. R. 88. a. b.

Detinue of a chain of Gold of four oun∣ces weight, of the value of twenty pounds, though the Defendant have, and detain them, yet, if it be but two ounces weight, he may wage Law, as if it were a black Horse, and the Suit for a white one: but if the Count were of a thing certain in the quant. or qual▪ as six yards of cloath, tho

he mistake the Price, as ten Shillings for eighteen Shillings; yet the Defendant can∣not safely wage law, Count of a Contract for 500 l. It was for 500 l. to be paid in Jew∣els, Defendant waged law. 39 H. 6. 34, 35. 3 H. 6. 49. b. Count of a Contract for 40. l. plead that it was for 20 l. and wage law for the rest. P. 22. E. 4. Pl. 8. 9. Mo. Pl. 1. 48. Vide 39 H. 6. 34. 35.

Debt by a Keeper of the Tower, for Man∣ger and Boyer for one committed there for Treason; Defendant cannot wage law, Et dict. for debt by a Priest, for his Salary, Defendant may wage law: 28 H. 6. 4. b.

In Account of Receipt per auter maines, no Wager lyes, because the Receipt is the cause of the Action, and that's notorious al pais being per auter mains: but in Detinue on a Delivery per auter mains, Wager lyes, because, not the Livery, but the Deteiner, which is, in a manner, the cause of Action; but in next Case, 'tis the Usage which makes the law of Wager; therefore in debt it lyes, in Trespass it lyes not 33 H. 6. 9. a.

Debt on a Judgment in Court-Baron, the Defendant pleads, Nul tiel Judgment, 'tis no Record, therefore tryable per Pais; De∣fendant not wage Law; 34 H. 6. 49.

No Wager lyes in debt, or Arrearages of Account before Auditors, but that was not at the Common Law, but is given by the

Statute of Westminster, 2 Ca. 11. But though the Statute gives it only in Case where the Lord sues for the Arrearages against the Receiver; yet it seems by Needham and Prisot, the Wager lyes not where the Bai∣liff or Receiver sues the Lord for Surplus on the Account, 38 H. 6. 5. 6.

Debt for Wages and on a Reteyner to serve in all Occupations, the Master wages law, because it may extend to other things besides Husbandry, which the Reporter holds to be otherwise; for, the Service and Wages being entire and no Wager for part, he thinks there should be none for the rest; for, Ma∣gis dignum trahit ad se minus, 38 H. 6. 13. 14.

Party wages Law, and day given to make it; either of the Parties at that day may be excused by Essoin, but if either make de∣fault, it is adjudged against him; or if the Defendant do not bring twelve sufficient men, 'tis a default, as if any of them prove Execution, Attachment, &c. Et ibidem if in Replevin the Plaintiff say that the Defen∣dant kept himself out of the way, that he could not tender Amends, and bring his Suit of it, Defendant may wage law of it; but if he bring no Suit, he need not wage, for against one single Voice he need not wage; whereby, since (moy semble) he means Proof, and so Selden upon Fortescue expounds it. vid. Brit. 60. a.

Debt and Counts upon a Lease for three years, of certain Sheep, the Defendant wa∣ges law, per Cur', he may, though not in a Lease of Land; Vid. 9. E. 4. 1. b. 1. H. 6. 1. a. b.

No Wager in Law lyes in debt by a Ser∣vant for his Wages, sed quaere, for that seems, such a Servant only, as is retained according to the Statute, 3 H. 6. 33 B. 34. a.

Debt and Counts of Reteyner to scald his Hogs, and foul by the Year, taking 100 s. The Defendant may wage his Law, and so he may upon a Retainer to serve him at Plough a year, and to find Ploughs, &c. for these not Reteyners according to the Statute; and so of a Reteyner to be his Counsel for a year, &c. 3 H. 6. 42.

One waged law, and brought twelve with him, one whereof was challenged, for that he was under Age; and he was try∣ed by Inspection of Court, to be of full Age, whereupon, the Party made his Law, and went quit; 8 H. 6. 15. b.

Debt of a Box of Writings and Charters, and Counts of one Charter in Special. To which, the Defendant pleaded non detinet, and to the rest, wages Law, & bon; for, if one Count of a box of Charters, and shew not in Special, he may wage Law as to all: for, unless one Charter be certainly set out

the Box, and all counted Chattels: Vid. 14. H. 6. 1. a. Detinue of Goods and Chattels, defendant wages Law quoad the Goods, and pleads to the Charters 44 or 4 E. 3. 41 b. and 19 H. 6. 9. b.

Debt, Defendant having answered in Court, that he bought, &c. to the use of the King, waged Law, and was admitted; for, notwithstanding he acknowledged the debt, it being a Contract, and he might have paid (or pleaded) it in pais, the Wager allow∣ed, simile, 11 H. 4. 28 and 3 H. 4. 40. 7 H. 4. 7. a.

Account by the Husband or an Abbot, and counts of Receipt per manus de Son feme. or de Son Comoine, good, and needs not count of a Receipt by his own hand; yet, 'tis as a Receipt by his own hand, and the De∣fendant may wage Law: And so vice versa, in Account against Baron or Abbot, Count of Receipt per manus del Feme o•• Cemoine, le Defendant; and so is 2 H. 5. 2. b. vid. 47 E. 3. 16. 13 E. 4. 8. a.

Debt against two, one makes default, the other wages law, and at the day makes it. The whole Writ is abated, Et quer' nil capiat against both entred; where, by the Acceptance of the Law quoad one, the whole Writ is abated. Vide 41. E. 3. 26. or 2. b.

Precipe quod reddat against two, one makes default after Joynt-wager, the other joyns,

and makes the Law. And it is accepted, though the defendant opposed it, the de∣fendant recovered some of the other Moy∣ety. Note, here both waged joyntly at first, vide 48 E. 3. 13. b. Cessavit against two who waged law, one comes to make it, Seizin is prayed of the, others Moyety that made default; for, if the Law of the one be accepted at first per Wishingham, all the Writ abates. But here when he prays Seizin of the entire, for the default of one, it was denyed; and upon the whole it seems, if one make default, Seizin of his part must be pr. first, else, by acceptance of the o∣thers Law, the Writ abates; And if Seizin be granted of the Moyety, it seems it is conditional; for, if the other makes his Law, the whole Writ abates tamen quere, and vide 3 E. 4. 21. a. 12. E. 4. 1. b. 5 E. 3. 9 B. and quere in personal Actions, not to be done in such case, for there no Seizin of part can be prayed. 40 E. 3. 35. b. vid. 40 E. 3. 40. 41.

Debt against a Bailiff for Arrearages on Account; obj. He cannot wage, &c. because in the Realty; but resolved he may, and so may he by 13 H. 7. 3. 6. If he had account∣ed, and was found in Arrearages before one Auditor. 43 E. 3. 1. 6.

Attaint on a Prohibition; Plea, that he sued out Sugg' to Prohibition, and therefore

he wages Law: doubted if Ley gager lyes, by Belknap, it does; because the first Suit but for debt, in which Ley gager lyes. 44 E. 3. 32. a.

The Servant retains one as Attorney for his Master, the Master makes the Servant Executor; and dyes: In debt by the Attor∣ney against the Executor, he cannot wage Law, though the Master might; for, the Servant is bound by his own deed of Re∣tainer, though he be sued as Executor, &c. And per Finchden, Baron may wage Law, if a Feme contract, and an Abbot, if his Monks: And so Bro. Tit. Ley gager 46 E. 3. 10.

Debt against a Bailiff for Arrearages found before Auditors, assigned in pais by the Ma∣ster; the defendant wages his Law, Et bene per Cur', though Brookes and Bridges say the Law is otherwise at this day, quere, since 'tis not before Auditors assigned by Court, Et hic dicitur quod, one may wage Law for a Sum recovered in a a Court-Baron, because no Court of Record; yet 'tis found by the Suiter, and so 'tis said, 13 H. 7. 3. 6. Per Cousby. 'Tis also here said, one may wage Law in debt for a Sum recovered in Tres∣pass, but in Trespass Ley gager lyes not: 49 E. 3. 2. 3.

Debt in the detinue only for rent Corn, as 'tis agreed it must be, not being Money; and though 'twas upon a Lease ••o years,

yet being in the Detinet only, the desendant is admitted to wage Law, 50 E. 3. 16. a. b.

Debt against J. D. who appeared by Attor∣ney, and ley gaged; and at the day, J. D. Junior, comes to make the Law: Plaintiss says his Suit is against J. D. the elder, & per optimam opinionem, J. D. Junior shall be dis∣charged, and the Plaintiff shall have Judg∣ment against the elder by default, and the Plaintiff be no longer delay'd. And so 'tis adjudged, 9 E. 3. 20. b. 5. E. 4. 23. 26. 114.

Annuity, defendant pleads a Refusal to give him advise upon Request; plaintiff of∣fers to wage his Law, that he did not re∣quest him, denyed, because he cannot wage Law de alieno; from (then) he offers to wage Law, that he did not refuse; (then) per Herle, that admits, that he did request, and shews no performance on request; and if he re∣quested, he did or did not perform, and when he sued not, if he did perform, it must be intended he did not qu. of law gager in such cases if it lye at all. 5 E. 3. 55. b.

In a Plea of Land the defendant defendant wages law of Non-summons, and offers to make it instanter, and per Herle (and not denyed) he may Ley gager, and make it instant, 7 E. 3. 24. a. Account by an Executor, and counts of a Receipt per manus Testatoris, was per

auter maines, then his that sues tamen quaere. In Debt and Account by Executor, 'tis said, defendant may wage his Law, Et sic semble hic. 7 E. 3. 61.

An Abbot is permitted to wage law of Non Sum' per Attornatum, quere If a com∣mon person may do so also, though he must make it in person. 8 E. 3. 20. a.

Prohibition of a Suit in Trespass contra pa∣cem, the Sheriff comes, and says he is sued not contra prohibitionem, on the attachment, and tenders Law; denyed, for in Trespass contra pacem, it lyes not, no more than in Count of a Receipt per auter maines; non al∣locatur, and that Law was received, and in 29. E. 3. 47. b. Debt lyes and grant of a delivery of goods by the Testator, per auter maines, defendant wages Law. So 30. E. 3. 24. 29. E. 3. 34. b.

In account, the defendant before Audi∣tors says he paid the Money to the plaintiff; the plaintiff would have waged law, That he did not receive it, but the other alledging that he had pass'd it per auter maines, non allocatur. Vide 30 E. 3. b. a. Ley gaged, that he did not receive a Statute, Wine, and Cloath, in Satisfaction of a Debt, and doubted if it lye quoad the Statute; but the Clark said it is usual, 29 E. 3. 46. b.

Debt against two who wage Law, one makes default, the other his Law, Nil ca∣piat

per breve; and the re••son seems, that he having charged the two joyntly, and the debt disproved quoad one, the Writ is satis∣fied in toto, yet eodem folio. 6. in a Precipe of Land against two, one makes Ley of non sum; the Writ abates quoad him, and Seizin of Land against the other that makes de∣fault. Note, the first Action is in the per∣sonal and entire, the last in the realty and several. 38 E. 3. 33. a.

One wages Law, and at the day failed, and the Roll marked, and Costs taxed, yet on motion sedente Curia, the same day he was admitted, and made his Law, & eodem in libro. Pa. 44. Ley gager lyes not in debt for Releif, Noy 42.

Defendant had day to make his Law, and at the day, made Affidavit, that he was pressed to serve the King, and could not come, and they prayed farther, and deny∣ed for peremptory; but the defendant pleaded al pais per advisamentum Curiae, and consent: Ashford against Greenvile, M. 1. Ca. 1. sed vide in Bulstr. 186. He cannot wave his Law, and plead al pais, without con∣sent. 3 Bulstr. 263. Affidavit, that he was sick, yet no day, but he pleaded al pais, 3 Bulstr. 316. on default, Judgment, and no day. Ben. 151.

Debt for Scavage, and declares that the Mayor, Aldermen, &c. time out of mind, have so much for Scavage, and the defen∣dant brought so many Boards, whereby so much was due; defendant waged Law, and on demurrer adjudged, it lyes not on this debt grounded on a Custom Ma. &c. of London against Delpester, Tr. 26. Ca. 2. b. r.