But if the Justices entertain any doubt upon the subject, and it cannot be ascertained, then, the Plea must be again commenced and proceeded on in Court.
CHAP. IX.
It should be understood, that no Court, generally speaking, has a Record, except the King’s Court.[314] For in other Courts, if a Man should say a thing, which he would afterwards retract, he may deny[315] it against the whole Court, by the oath of three witnesses, affirming that he had not said the thing imputed to him, or, indeed, by a greater or less number of witnesses, according to the custom of different Courts. Yet, in some cases, the County and other inferior Courts are by a particular Law of the Realm allowed to have Records; thus, if the Duel has been waged in any inferior Court, and the Suit should be afterwards transferred into the King’s Court; then, as to the claim of the Demandant, the defence of the Tenant, and the words in which such Duel was adjudged and waged, the former Court shall have its Record even in the King’s Court; but, in other respects, such inferior Court has no Record, unless concerning the change of a Champion. For if, after the suit has been transferred into the King’s Court, a different Champion should be produced, than the one who has waged the Duel in the inferior Court, and a dispute arise upon this point, the Record of the inferior Court shall by a Law of the Realm be conclusive upon the subject. It should also be understood, with respect to the Record of an inferior Court, that any one may add, that he had said more than is contained in such Record—and that he did in Court say it, he may prove against the whole Court, by the oaths of two or more lawful Men, according as the custom of different Courts vary; because no Court is bound, either to prove or defend its Record by the Duel. But it is not allowed to any one to take exceptions against one part, and admit the other; and this rule is grounded on a Law of the Realm: since he may from the first deny the whole Record, an oath being taken in the manner before mentioned. But, although a Court is not obliged to defend its Record by the Duel, yet is it bound to defend its Judgment by the Duel.[316] If, therefore, any one should declare against the Court for passing a false Judgment, and, therefore false, because when one party had said thus, and the other answered thus, the Court in question had judged falsely of their allegations by deciding in such words; and that the Court had given such false Judgment by the mouth of N.; and, if he were disposed to deny the present charge, the other was prepared to prove it against him, chiefly by such proper witness, who was ready to enter upon the proof. Thus may the matter, and that very properly, be decided by the Duel.[317] But, whether such Court is obliged to defend itself by one of its own members, or may have recourse to a stranger, may be questioned?
It ought, indeed, to defend itself chiefly by the person who has passed the Judgment[318] and, if the Court should be convicted of the charge, the Lord of the Court shall be amerced to the King, and shall for ever be deprived of his Court. Besides which, the whole Court shall be amerced to the King. But, if the person bringing the charge forward should fail in his proof, he shall thereby lose his principal suit. A Court may also have a Record, by the indulgence of the Prince. Thus, if the King, influenced by some reasonable motive, should cause any Court to be summoned to make a Record in his Court; so that the King chuses, that such Record shall not be contradicted. Courts are frequently summoned to have a Record of some particular suit before the King, or his Justices, although they have not from this circumstance any Record but what may be contradicted; because, by the consent of the parties, the suit may be proceeded in upon that Record.
If they agree as to the Record, the Summons may be made, by a writ of the following description——
CHAP. X.
“The King to the Sheriff, Health. I command you, that you cause to be recorded in your County Court, the suit which is between such and such persons, of so much Land, in such a Vill; and have the Record of that suit before me, or my Justices, at such a day,[319] by four Lawful Knights, who were present at the making of such Record—And Summon, by good Summoners, the party claiming the Land, that he be then there with his Plea; and the party who holds the Land, that he be then there to hear it.[320] And have, &c.”