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[ 380 ] WAGER. VX7"ADSET, is a right whereby lands are impignorated or pledged for security of a certain sum. Scotch Diet. Similar to the English Mortgage, see that title. Wadset proper, is when the Wadsetter (mortgagee) takes his hazard of the rents of the land, for satisfaction of his annual rent, and pays himself all public burdens. Scotch Diet. Wadset improper, is when the grantor of the Wadset (the mortgagor) pays the public burdens, the Wadsetter having his annual rents seemed. Scotch Diet. Wadsetter, is he to whom a Wadset is granted. Scotch Diet. (the Mortgagee.) WTAFTO RS, Waftores.] Conductors of vessels at sea. King Edw. IV. constituted certain officers with naval power, whom he stiled Custodes, Conductors; and Waftores, to guard our fishing vessels on the coasts oiJ\orfolk and Suffolk. Pat. 22 Ed. 4. WAGE, Vadiare, from Fr. Gage.] The giving of security for per formance of any thing; as to wage or gage deliverance, to wage law, <Stc. Co. Litt. 294. See Wager of Law. WAGER OF BATTLE; See title Battel. WAGER OF LAW. Vadiatio LegisA So called, because the defendant puts in sureties, vadios, that at such a day he will make his Law, that is, take the benefit which the Law has allowed him. 3 Comm. c. 22: 1 Inst. 295. This takes place where an action of debt is brought against a man upon a simple contract between the parties, without deed or record: and the defendant swears in court in the presence of eleven com purgators, that he oweth the plaintiff nothing, in manner and form as he hath declared: The reason of this waging of Law is, because the defendant might have paid the plaintiff his debt in private, or be fore witnesses who may be all dead, and therefore the law allows him to wage his law in his discharge; and his oath shall rather be accept ed to discharge himself, than the law will suffer him to be charged uoon the bare allegation of the plaintiff. 2 Inst. 45. Wager of Law is used in actions of debt without specialty; and also in action of detinue, for goods or chattels lent or left with the defendant, who may swear on a book, that he detaineth not the goods in manner as the plaintiff has declared, and his compurgators, (who must, in all cases, as it seems now, be eleven in number,) swear that they believe his oath to be true. 3 Gomm. c. 22. The manner of waging law is thus: He that is to do it, must bring his compurgators with him into court, and stand at the end of the bar towards the right hand of the chief justice; and the secondary asks him, whether he will wage his law? If he answers that he will, the judge admonisheth him to be well advised, and tells him the dan ger of taking a false oath: and if he still persists, the secondary says, " and he that wages his law repeats after him: Hear this, ye Jus- WAGER. 381 tices, That I A. B. do not owe to C. D. the sum of, Isfc. nor any pen ny thereof, in manner and form as the said C. D. hath declared against me: So help me God." Though, before he takes the oath, the plain tiff is called by the crier thrice; and if he do not appear he becomes and his non-suited, then the defendant goes quit without taking oath; and if he appear, and the defendant swears that he owes the plain tiff nothing, and the compurgators do give it upon oath that they believe he swears true, the plaintiff is barred for ever; for when a person has waged his law, it is as much as if a verdict has passed against the plaintiff: If the plaintiff do not appear to hear the defend ant perform his law, so that he is non-suit, he is not barred, but may bring anew action. 1 Inst. 155: 2 Lil. Abr. 674. In an action of debt on a by-law, the defendant waged his law; a day being given on the roll for him to come and make his law, he was set at the right corner of the bar, and the secondary asked him, if he was ready to wage his law; who answering that he was, he laid his hand on the book, and then the plaintiff was called: Then the judges admonished him and his compurgators not to swear rashly; and thereupon he made oath, that he did not owe the money modo et forma as the plaintiff had declared; and then his compurgators, who were standing behind him, were called, and each of them laying his right hand upon the book, made oath that they believed what the de fendant had sworn was true. 2 Vent. 171: 2 Salk. 682. The defendant cannot wage his law in any action, but personal actions, where the cause is secret: and wager of law has been denied on hearing the case, and the defendant been advised to plead to issue, isfc. 2 Lil. 675, 676. Executors and administrators, when charged for the debt of the deceased, shall not be admitted to wage their law: For no man can, with a sate conscience, wage law of another man's contract; that is, swear that he never entered into it, or at least that he privately dis charged it. Finch L. 424. The King also has his prerogative; for, as all wager of law imports a reflection on the plaintiff for dishonesty, therefore there shall be no such wager on actions brought by him. Finch L. 425. And this prerogative extends and is communicated to debtor and accomptant; for, on a writ of quo minus in the exchequer for a debt on simple contract, the defendant is not allowed to wage his law. 1 Inst. 295. In short, the wager of law was never permitted, but where the defendant bore a fair and irreproachable character; and it also was confined to such cases where a debt might be supposed to be dis charged, or satisfaction made in private, without any witnesses to attest it: And many other prudential restrictions accompanied this indulgence. But at length it was considered, that (even under all its restrictions) it threw too great a temptation in the way of indigent or profligate men; and therefore by degrees new remedies were de vised, and new forms of actions were introduced, wherein no defend ant is at liberty to wage his law. So that now no plaintiff need at all apprehend any danger from the hardness of his debtor's conscience, unless he voluntarily chooses to rely on his adversary's veracity, by bringing an obsolete, instead of a modern, action. Therefore one shall hardly hear at present of an action of debt brought upon a simple contract; that being supplied by an action of trespass on the case for the breach of a promise or assumpsit; wherein, though the specific 382 WAIFS. debt cannot be recovered, yet damages may, equivalent to the specilic debt: And this being an action of trespass no law can be waged therein. So, instead of an action of detinue to recover the very thing detained, an action of trespass on the case in trover and conversion is usually brought; wherein, though the horse or other specific chattel cannot be had, yet the defendant shall pay damages for the conver sion, equal to the value of the chattel; and for this trespass also no wager of law is allowed. In the room of actions of account, a bill in equity is usually filed; wherein, though the defendant answers upon his oath, yet such oath is not conclusive to the plaintiff; but he may prove every article by other evidence, in contradiction to what the defendant has sworn. So that Wager of Law is quite out of use, being- avoided by the mode of bringing the action: but still it is not out of force. And therefore, when a new statute inflicts a penalty, and gives an action of debt for recovering it, it is usual to add, " in which no wager of law shall be allowed;" otherwise an hardy delinquent might escape any penalty of the law, by swearing he had never incurred, or else had discharged it. See 3 Comm. c. 22; where many particulars as to this obsolete species of trial by the oath of a defendant and his compurgators are detailed. WAGERING POLICIES; See title Insurance. WAGERS. By stat. 7 Ann. c. 17. all Wagers laid upon a contin gency relating to the then war with France, and all securities, isfc. therefore vvere declared to be void; and persons concerned were to forfeit double the sums laid. In general, a Wager may be considered as legal, if it be not an incitement to a breach of the peace, or to immorality; or if it do not affect the feelings or interest of a third person, or expose him to ridi cule; or if it be not against sound policy. Cowfl. 729. 2 Term Rep. 610. 616: 3 Term Refi. 697: where the principal cases on this point are very fully considered. See also 5 Term Refi. 405: 7 T. R. 535: S T. R. 575: 2 Bos. isf Pul. 130. 467. and this Diet, title Gaming. No action will lie on a Wager respecting the mode of playing an illegal game; and if such a cause be set down for trial, the judge at Nisi Prius is justified in ordering it to be struck out of the paper.
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