28.33. 33. The same Subject continued.
In the practice of judicial combats,
the person who had challenged one of the judges of false judgment might
lose his cause by the combat, but could not possibly gain it.
[251]
And,
indeed, the party who had a judgment in his favour ought not to have
been deprived of it by another man's act. The appellant, therefore, who
had gained the battle was obliged to fight likewise against the adverse
party: not in order to know whether the judgment was good or bad (for
this judgment was out of the case, being reversed by the combat), but to
determine whether the demand was just or not; and it was on this new
point they fought. Thence proceeds our manner of pronouncing decrees,
"The court annuls the appeal; the court annuls the appeal and the
judgment against which the appeal was brought." In effect, when the
person who had made the challenge of false judgment happened to be
overcome, the appeal was reversed: when he proved victorious, both the
judgment and the appeal were reversed; then they were obliged to proceed
to a new judgment.
This is so far true that, when the cause was tried by inquests, this
manner of pronouncing did not take place: witness what M. de la Roche
Flavin says,
[252]
namely, that the chamber of inquiry could not use this
form at the beginning of its existence.
Footnotes
[251]
Defontaines, 21, art. 14.
[252]
Of the Parliaments of France, i. 16.
