7th question of the doctor

Doct. It is commonly used, as I have heard say, that when a tenant in assise pleadeth that a stranger was seised and enfeoffed him, and giveth the plaintiff a colour in such manner as before appeareth in the 52d chapter, that the tenant many times, when he hath pleaded thus, and the plaintiff claimed by a colour of a deed of feoffment made by the said stranger, where nought passed by the deed entered; and that then they use to say farther, upon whom A. B. entered, upon whom the tenant entered; where indeed the said A. B. never entered, ne haply there was no such man; how can this pleading be excused of an untruth? And what reasonable cause can be why such a pleading should be suffered against the truth?

Stud. The cause why that manner of pleading is suffered is this: if the tenant by his pleading confessed an imhediate entry upon the plaintiff, or an immediate putting out off the plaintiff, which in French is called an Ouster; then if the title were after found for the plaintiff, the tenant by his confession were attainted of the disseisin. And because it may be, that though the plaintiff have good title to the land, that yet the tenant is no disseisor, therefore the tenants use many times to plead in such manner as thou hast said before, to save themselves from confessing of an ouster and so if there be any default it is not in the court, ne in the law, for they know not the truth therein till it be tried. And methinketh also that there is in this case right little default or none in the tenant, nor in his counsel, specially if the counsel know that the tenant is no disseisor. But as to that point, I pray thee, that as thou hast taken a respite to be advised, or that thou shew thy full mind in the question of a colour given in assise, whereof mention is made in the said 48th chapter, that I likewise may have a like respite in this case till another time, to be advised, and then I shall with good-will shew thee my full mind therein.

Doct. I am content it be as thou sayest. But I pray thee that I may yet add another question to the two questions before rehearsed of colours in assise, and feel thy mind therein, because that soundeth much to the same effect that the other do, (that is to say) to prove that there be divers things suffered in the law to be pleaded that be against the truth: and I pray thee let me hereafter know thy mind in all three questions, and thou shalt then with a good-will know mine.

Stud. I pray thee shew me the case that thou speakest of.

Doct. If a man steal a horse secretly in the night, it is used that thereupon he shall be indicted at the king’s suit, and it is used that in that indictment it shall be supposed that he such a day and place with force and arms, (that is to say) with staves, swords, and knives, etc., feloniously stole the horse against the king’s peace; and that form must be kept in every indictment, though the felon had neither sword nor other weapon with him, but that he came secretly without weapon: how can it therefore be excused, but there is an untruth?

Stud. It is not alledged in the indictment by matter in, deed that lie had such weapon, for the form of an indictment is this Iuquiratur Jro Domino Reg c, si A, tali die ct anno apud talem locumn vi ct armnis, videlicet Gladzis, etc., talezra equum talis hominis ce 5it, ctc. And then the twelve men be only charged with the effect of the bill, that is to say, whether he be guilty of the felony or not, and not whether he be guilty under such manner and form as the bill specifieth or no; and so when they say Billa vera, they say true, as they take the effect of the bill to be. And therefore if there were false Latin in: the bill of indictment, and the jury saith Billa vera, yet their verdict is true: for their verdict stretcheth not to the truth or falshood of the Latin, but to the felony, ne to the form of the words, but to the effect of the matter; and that is to enquire whether there were any such felony done by the person or not. And though the bill vary from the day, from the year, and also from the place where the felony was done in, so it vary not from the shire that the felony was done in, and the jury saith Billa vera, they have given a true verdict; for they are bound by their oath to give their verdict according to the effect of the bill, and not according to the form of the bill. And so is he that maketh a vow bound likewise to that that by the law is the effect of his avow, and not only to the words of his avow. And if a man avow never to eat white meat, yet in time of extreme necessity he may eat white meat, rather than die, and not break his avow, though he affirmed it with an oath: for by the effect of his avow extreme necessity was excepted, though it were not expressly excepted in the words of the avow. And so likewise, though the words of the bill be, to enquire whether such a man such a day and year, and in such a place, did such a felony; yet the effect of the bill is, to enquire whether he did the felony within the shire or no and therefore the justices before whom such indictments be taken most commonly inform the jury, that they are bound to regard the effect of the bill, and not the form. And therefore there is no untruth in this case, neither in him that made the bill, ne yet in the jury, as me seemeth.

Doct. But if the party that owned the horse bring an action of trespass; and declareth that the defendant took the horse with force and arms, where he took him without force and arms; how may the plaintiff there be excused of an untruth.

Stud. And if the plaintiff surmise an untruth, what is that to the court, or to the law ? For they must believe the plaintiff, till that that he saith be denied by the defendant; and yet as this case is, there is no untruth in the plaintiff, to say he took the horse with force and arms, though he came never so secretly, and without weapon: for every trespass is in the law done with force and arms; so that if he be attainted, and found guilty of the trespass, he is attainted of the force and arms: and sith the law judgeth every trespass to be done with force, therefore the plaintiff saith truly that he took him with force, as the law meaneth to be force. For though he took the horse as a felon, yet upon the felonious taking the owner may take an action of trespass if he will; for every felony is a trespass and more. And so I have shewed thee some part of my mind, to prove that in those cases there is no untruth, neither in the parties, neither in the jury, nor in the law. Nevertheless, at a better leisure I will shew thee my mind more fully therein with good-will, as thou hast promised me to do in the case of colours of the assise, and of the ouster, that be before rehearsed.