If the Creditor lose his Seisin, either by means of the Debtor, or any other person, he cannot recover it through the assistance of the Court; not even by a Recognition of Novel Disseisin.
For if he was unjustly and without a judgment disseised of his pledge, by any other person than the Debtor himself, the Debtor may have an Assise of Novel Disseisin. If, however, the Creditor was disseised by the Debtor himself, the Court will not assist him against the Debtor, in recovering his pledge, or in giving him a Re-entry, unless through the Debtor himself; for the Creditor should resort to an original Plea of Debt, in order that the Debtor may be compelled to render him satisfaction for his Debt. In such case, the Debtor shall be summoned by the foregoing Writ of first summons.
CHAP. XII.
Upon the Debtor’s appearing on the day appointed in Court, if the Creditor has neither Pledge, nor Sureties, nor any other proof, unless the mere faith of the other, this will not be received as any proof in the King’s Court.[384] Yet, he may proceed for the breach or violation of faith in the Court Christian. But, though the Ecclesiastical Judge can hold cognizance of such crime, and either impose penance on the convicted party, or enjoin him to make satisfaction, yet, with respect to Pleas concerning the Debts of the Laity, or affecting Tenements, the Court Christian cannot by a Law of the Realm hold or decide them, under the pretence of the party having pledged his promise.[385] The Creditor ought, therefore, to adduce other proof, if the Debtor deny the Debt in question.
For if he admit it, then, he is bound to discharge it, in manner similar to that we have already explained, in speaking of Pledges, confessing their suretyship.[386] Should he, however, deny it, the Creditor may prove his demand, either by a proper Witness, or by the Duel, or by a Charter. When, therefore, any one offer in Court, as proof of the Debt, the Charter of his Adversary, or his Ancestor, the Defendant will either admit such Charter, or deny it. In the latter case, he may deny or controvert it in two ways: thus, he may acknowledge in Court the seal to be his own, but deny that the Charter was made either by him, or with his consent, or that of his Ancestor; or he may absolutely deny, both the Seal and the Charter. In the first case, when he has publicly in court acknowledged the Seal to be his own, he is bound to warrant the terms of the Charter, and, in all respects, to observe the compact expressed in the Charter as contained in it, without question, and to impute it to his own indiscretion, if he incur any loss by negligently preserving his own Seal. But in the latter case, the Charter may be proved in Court by the Duel by any proper Witness, especially if his name be inserted in the Charter itself. There is another mode by which the Credit of a Charter is accustomed to be established in Court, namely, by some certain and unquestionable signs. As, for Example, by other Charters, impressed with the same Seal, and concerning which it is clear, that they are the Charters of the party, who denies the present Charter, because he has openly warranted them in Court. If in such case the impressions coincide in every respect with one another, so that there is no suspicion of any difference between the Seals, it is usual to consider the fact as proved; and, whether by this, or by any other legal mode, the party should be overcome, he shall lose his suit on the occasion, whether it be a Plea of Debt, or concerning Land, or any other thing whatever; and he shall, in addition, be amerced to the King. For, it is a general Rule, that whenever a person has said any thing in Court or in a Plea which he afterwards denies, or of which he has neither suit, nor Warrantor, nor sufficient proof,[387] or has been distrained to assert the contrary, or to deny it by sufficient proof, he shall be amerced to the King. But, if the person, against whom the Charter is produced to prove a certain Debt, acknowledge it from the first, then he shall be compelled to satisfy the Creditor, according to the tenor of the Charter. When any thing is lent on the joint strength of many of the proceeding securities, then, from the moment the Debtor makes default, he is liable to be distrained by all the securities being put in force against him at the same time. It is on this account, therefore, that many securities are taken, that in case of the inability of the Debtor, the Creditor may more readily be satisfied, than if there exist but one security only.
CHAP. XIII.
A debt sometimes arises when a thing is borrowed;[388] as if I lend a thing to you gratuitously, to be made use of in your service. The service being finished, you are bound to restore my property to me, without deterioration,[389] if it be in existence.
But, if the thing itself be destroyed, or has by any means been lost, whilst in your Custody, you are absolutely bound to return me a reasonable price. But by what, or whose proof,[390] it is to be shewn—or if any one has lent his property to be used in a certain place, or for a certain Term, and he who thus received it has used it, either in another place, or at another time, the extent to which he ought to make a recompense, or upon what proof, or whose property it is to be adjudged, are points that may be questioned. The party, indeed, shall be absolutely excused from the imputation of Theft, by reason that his possession of the thing detained originated through the owner of the property.