THE SPIRIT OF LAWS 125 against which Agobard; and St. Avitus k made such loud com- plaints. " When the accused," says this prince, " produces wit- nesses to swear that he has not committed the crime, the accuser may challenge one of the witnesses to a combat; for it is very just that the person who has offered to swear, and has declared that he was certain of the truth, should make no difficulty of maintaining it by combat." Thus the witnesses were deprived by this king of every kind of subterfuge to avoid the judiciary combat.
27. — Of the judiciary Combat between one of the Parties and one of the Lords' Peers. Appeal of false Judgment As the nature of judicial combats was to terminate the affair forever, and was incompatible with a new judgment and new prosecutions,^ an appeal, such as is established by the Roman and Canon laws, that is, to a superior court in order to rejudge the proceedings of an inferior, was a thing unknown in France.
This is a form of proceeding to which a warlike nation, gov- erned solely by the point of honor, was quite a stranger; and agreeably to this very spirit, the same methods were used against the judges as were allowed against the parties.^ An appeal among the people of this nation was a challenge to fight with arms, a challenge to be decided by blood; and not that invitation to a paper quarrel, the knowledge of which was reserved for succeeding ages.w Thus St. Louis in his Institutions says, that an appeal includes both felony and iniquity. Thus Beaumanoir tells us, that if a vassal wanted to make his complaint of an outrage committed against him by his lord,o he was first obliged to announce that he quitted his fief; after which he appealed to his lord paramount, and offered pledges of battle. In like manner the lord renounced the homage of his vassal, if he challenged him before the count.
For a vassal to challenge his lord of false judgment., was as much as to say to him, that his sentence was unjust and ma- licious; now to utter such words against his lord was in some measure committing the crime of felony.
Hence, instead of bringing a challenge of false judgment ; Letter to Louis the Debonnaire. n Book II. chap. xv.
k " Life of St. Avitus." o Beaumanoir, chap. Ixi. pp. 310 and m Ibid., chap. Ixi. p. 312, and chap.
126 MONTESQUIEU.
against the lord who appointed and directed the court, they challenged the peers of whom the court itself was formed, by which means they avoided the crime of felony, for they insulted only their peers, with whom they could always account for the aflfront.
It was a very dangerous thing to challenge the peers of false judgment./* If the party waited till judgment was pronounced, he was obliged to fight them all when they offered to make good their judgment.? If the appeal was made before all the judges had given their opinion, he was obliged to fight all who had agreed in their judgment. To avoid this danger, it was usual to petition the lord to direct that each peer should give his opin- ion aloud; r and when the first had pronounced, and the second was going to do the same, the party told him that he was a liar, a knave, and a slanderer, and then he had to fight only with that peer.
Defontaines -y would have it, that before a challenge was made of false judgment, it was customary to let three judges pro- nounce; and he does not say that it was necessary to fight them all three, much less that there was any obligation to fight all those who had declared themselves of the same opinion. These differences arose from this, that in those times there were few usages exactly in all parts the same; Beaumanoir gives an ac- count of what passed in the county of Clermont; and Defon- taines of what was practised in Vermandois.
When one of the peers or a vassal had declared that he would maintain the judgment, the judge ordered pledges of battle to be given, and likewise took security of the challenger, that he would maintain his case.^ But the peer who was challenged gave no security, because he was the lord's vassal, and was obliged to defend the challenge, or to pay the lord a fine of sixty livres.
If he who challenged did not prove that the judgment was bad,« he paid the lord a fine of sixty livres, the same fine to the peer whom he had challenged, and as much to every one of those who had openly consented to the judgment.^' When a person, strongly suspected of a capital crime, had been taken and condemned, he could make no appeal of false p Beaumanoir, chap. ixi. p. 313. only, that each of them was allowed a q Ibid. p. 314. small fine.
r Ibid. t Beaumanoir, chap. Ixi. p. 314.
s Chap. xxii. art. i, 10, and 11, he says « Ibid. Defontaines, chap. xxii. art. 9.
V Ibid.
THE SPIRIT OF LAWS 127 judgment: «; for he would always appeal either to prolong his life, or to get an absolute discharge.
If a person said that the judgment was false and bad, and did not ofifer to prove it so, that is to fight, he was condemned to a fine of ten sous if a gentleman, and to five sous if a bondman, for the injurious expressions he had uttered.^ The judges or peers who were overcome, forfeited neither life nor Hmbs;:* but the person who challenged them was punished with death, if it happened to be a capital crime.^ This manner of challenging the vassals with false judgment was to avoid challenging the lord himself. But if the lord had no peers,a or had not a sufficient number, he might at his own expense borrow peers of his lord paramount; b but these peers were not obliged to pronounce judgment if they did not like it; they might declare that they were come only to give their opin- ion: in that particular case, the lord himself judged and pro- nounced sentence as judge; c and if an appeal of false judgment was made against him, it was his business to answer to the chal- lenge.
If the lord happened to be so very poor as not to be able t6 hire peers of his paramount,<^ or if he neglected to ask for them or the paramount refused to give them, then, as the lord could not judge by himself, and as nobody was obliged to plead before a tribunal where judgment could not be given, the affair was brought before the lord paramount.
This, I believe, was one of the principal causes of the sepa- ration between the jurisdiction and the fief, whence arose the maxim of the French lawyers, " The fief is one thing, and the jurisdiction is another." For as there were a vast number of peers who had no subordinate vassals under them, they were incapable of holding their court; all affairs were then brought before their lord paramount, and they lost the privilege of pro- nouncing judgment, because they had neither power nor will to claim it.
All the judges who had been at the judgment were obliged Defontaines, chap. xxii. art. 21. fontaines, chap. xxii.
X Ibid. chap. Ixi. p. 3i4_._ b The count was not obliged to lend 31 Defontaines, chap. xxii. art. 7. any. Beaumanoir, chap. Ixvii. p. 337.
s See Defontaines, chap. xxi. art. 11 c Nobody can pass judgment in his and 12, and following, who distinguishes court, says Beaumanoir, chap. Ixvii. pp.
the cases in which the appellant of false 336 and 337.
judgment loses his life, the point con- d Ibid. chap. Ixii. p. 322. tested, or only the imparlance.
128 MONTESQUIEU to be present when it was pronounced, that they might follow one another, and say aye to the person who, wanting to make an appeal of false judgment, asked them whether they followed; ^ for Defontaines says,^ " that it is an affair of courtesy and loyalty, and there is no such thing as evasion or delay." Hence, I im- agine, arose the custom still followed in England, of obliging the jury to be all unanimous in their verdict, in cases relating to life and death.
Judgment was therefore given, according to the opinion of the majority; and if there was an equal division, sentence was pronounced, in criminal cases, in favor of the accused; in cases of debt, in favor of the debtor; and in cases of inheritance, in favor of the defendant.
Defontaines observes,^ that a peer could not excuse himself by saying that he would not sit in court if there were only ionr,h or if the whole number, or at least the wisest part, were not pres- ent. This is just as if he were to say in the heat of an engage- ment, that he would not assist his lord, because he had not all his vassals with him. But it was the lord's business to cause his court to be respected, and to choose the bravest and most know- ing of his tenants. This, I mention, in order to show the duty of vassals, which was to fight, and to give judgment: and such, indeed, was this duty, that to give judgment was all the same as to fight.
It was lawful for a lord, who went to law with his vassal in his own court, and was cast, to challenge one of his tenants with false judgment. But as the latter owed a respect to his lord for the fealty he had vowed, and the lord, on the other hand, owed benevolence to his vassal for the fealty accepted; it was cus- tomary to make a distinction between the lord's affirming in general that the judgment was false and unjust,* and imputing personal prevarications to his tenant.; In the former case he affronted his own court, and in some measure himself, so that there was no room for pledges of battle. But there was room in the latter, because he attacked his vassal's honor; and the per- son overcome was deprived of life and property, in order to maintain the public tranquillity.
e Defontaines, chap. xxi. art. 27 and h This number at least was necessary.
28. Defontaines, chap. xxi. art. 36.
f Ibid. art. 28. i Beaumanoir, chap. Ixvii. p. 337.
g Chap. xxi. art. 37.; Ibid.
THE SPIRIT OF LAWS 129 This distinction, which was necessary in that particular case, had afterwards a greater extent. Beaumanoir says, that when the challenger of false judgment attacked one of the peers by personal imputation, battle ensued; but if he attacked only the judgment, the peer challenged was at liberty to determine the dispute either by battle or by law.^ But as the prevaiUng spirit in Beaumanoir's time was to restrain the usage of judicial com- bats, and as this liberty which had been granted to the peer challenged of defending the judgment by combat or not is equally contrary to the ideas of honor established in those days, and to the obligation the vassal lay under of defending his lord's jurisdiction, I am apt to think, that this distinction of Beau- manoir's was a novelty in French jurisprudence.
I would not have it thought that all appeals of false judgment were decided by battle; it fared with this appeal as with all others. The reader may recollect the exceptions mentioned in the 25th chapter. Here it was the business of the superior court to examine whether it was proper to withdraw the pledges of battle or not.
There could be no appeal of false judgment against the king's court; because, as there was no one equal to the king, no one could challenge him; and as the king had no superior, none could appeal from his court.
This fundamental regulation, which was necessary as a politi- cal law, diminished also as a civil law the abuses of the judicial proceedings of those times. When a lord was afraid that his court would be challenged with false judgment, or perceived that they were determined to challenge, if the interests of justice required that it should not be challenged, he might demand from the king's court, men whose judgment could not be set aside./ Thus King Philip, says D6fontaines,w sent his whole Council to judge an afifair in the court of the Abbot of Corbey.
But if the lord could not have judges from the king, he might remove his court into the king's, if he held immediately of him; and if there were intermediate lords, he had recourse to his suzerain, removing from one lord to another till he came to the sovereign.
Thus, notwithstanding they had in those days neither the practice nor even the idea of our modern appeals, yet they had k Beaumanoir, chap. Ixvii. pp. 337 and 338. / Defontaines, chap. xxii. m Ibid. Vol. II.— 9 I30 MONTESQUIEU recourse to the king, who was the source whence all those rivers flowed, and the sea into which they returned.
28. — Of the Appeal of Default of Justice The appeal of default of justice was, when the court of a par- ticular lord deferred, evaded, or refused to do justice to the parties.
During the time of our princes of the second race, though the count had several officers under him, their person was subordi- nate, but not their jurisdiction. These officers in their court days, assizes, or placita, gave judgment in the last resort as the count himself; all the difference consisted in the division of the jurisdiction. For instance, the count had the power of con- demning to death, of judging of liberty, and of the restitution of goods, which the centenarii had not.« For the same reason there were greater cases which were re- served to the king; namely, those which directly concerned the political order of the state.o Such were the disputes between bishops, abbots, counts, and other grandees, which were deter- mined by the king, together with the great vassals./' What some authors have advanced, namely, that an appeal lay from the count to the king's commissary, or missus dominicus, is not well grounded. The count and the missus had an equal jurisdiction, independent of each other.Q The whole difference was, that the missus held his placita, or assizes, four months in the year,^ and the count the other eight.
If a person, who had been condemned at an assize, demanded to have his cause tried over again, and was afterwards cast, he paid a fine of fifteen sous, or received fifteen blows from the judges who had decided the affair.-y When the counts, or the king's commissaries did not find themselves able to bring the great lords to reason, they made them give bail or security t that they would appear in the king's court: this was to try the cause, and not to rejudge it. I find in n Third Capitulary of the year 812, q See the Capitulary of Charles the art. 3, edition of Baluzius, p. 497, and Bald, added to the law of the Lomof Charles the Bald, added to the law bards, book II. art. 3.
of the Lombards, book II. art. 3. r Third Capitulary of the year 812, Louis the Debonnaire, edition of Ba-; This appears by the formulas, charluzius, p. 667. ters, and the capitularies.
THE SPIRIT OF LAWS 131 the Capitulary of Metz « a law by which the appeal of false judg- ment to the king's court is established, and all other kinds of appeal are proscribed and punished.
If they refused to submit to the judgment of the sheriffs v and made no complaint, they were imprisoned till they had sub- mitted, but if they complained, they were conducted under a proper guard before the king, and the affair was examined in his court.
There could be hardly any room then for an appeal of default of justice. For instead of its being usual in those days to com- plain that the counts and others who had aright of holding assizes were not exact in discharging this dutyjW it was a general com- plaint that they were too exact. Hence we find such numbers of ordinances, by which the counts and all other officers of justice are forbidden to hold their assizes above thrice a year. It was not so necessary to chastise their indolence, as to check their activity.
But, after an infinite number of petty lordships had been formed, and different degrees of vassalage established, the neg- lect of certain vassals in holding their courts gave rise to this kind of appeal; ^ especially as very considerable profits accrued to the lord paramount from the several fines.
As the custom of judicial combats gained every day more ground, there were places, cases, and times, in which it was difficult to assemble the peers, and consequently in which justice was delayed. The appeal of default of justice was therefore in- troduced, an appeal that has been often a remarkable era in our history; because most of the wars of those days were imputed to a violation of the political law; as the cause, or at least the pretence, of our modern wars is the infringement of the laws of nations.
Beaumanoir says y that, in case of default of justice, battle was not allowed: the reasons are these: i. They could not challenge the lord himself, because of the respect due to his person; neither could they challenge the lord's peers, because the case was clear, M In the year 757, edition of Baluzius. w See the law of the Lombards, book p. 180, arts. 9 and 10, and the synod II. tit. 52, art. 22.
' apud Vernas," in the year 755, art. 29, x There are instances of appeals of edition of Baluzius, p. 175. These two default of justice as early as the time capitularies were made under King of Philip Augustus.
w 1 he officers under the count, " scabini."
132 MONTESQUIEU and they had only to reckon the days of the summons, or of the other delays; there had been no judgment passed, consequently there could be no appeal of false judgment: in fine, the crime of the peers offended the lord as well as the party, and it was against rule that there should be battle between the lord and his peers.
But as the default was proved by witnesses before the superior court: z the witnesses might be challenged, and then neither the lord nor his court were offended.
In case the default was owing to the lord's tenants or peers, who had delayed to administer justice, or had avoided giving judgment after past delays, then these peers were appealed of default of justice before the paramount; and if they were cast, they paid a fine to their lord.o The latter could not give them any assistance; on the contrary, he seized their fief till they had each paid a fine of sixty livres.
2. When the default was owing to the lord, which was the case whenever there happened not to be a sufficient number of peers in his court to pass judgment, or when he had not assembled his tenants or appointed somebody in his room to assemble them, an appeal might be made of the default before the lord para- mount; but then the party and not the lord was summoned, be- cause of the respect due to the latter.^ The lord demanded to be tried before the paramount, and if he was acquitted of the default, the cause was remanded to him, and he was likewise paid a fine of sixty livres.c But if the de- fault was proved, the penalty inflicted on him was, to lose the trial of the cause,d which was to be then determined in the su- perior court. And, indeed, the complaint of default was made with no other view.
3. If the lord was sued in his own court,^ which never hap- pened but upon disputes in relation to the fief, after letting all the delays pass, the lord himself was summoned before the peers in the sovereign's name,^ whose permission was necessary on that occasion. The peers did not make the summons in their z Beaumanoir, chap. Ixi. p. 315 upon her to have it tried within forty a Defontaines, chap. xxi. art. 24. days, and thereupon challenged her at b Ibid., art. 32. the king's court with default of justice.
c Beaumanoir, chap. Ixi. p. 312. She answered that she would have it d Defontaines, chap. xxi. arts, i and tried by her peers in Flanders. The 29. king's court determined that it should eThis was the case in the famous not be sent there and that the countess difference between the Lord of Nesle should be cited.
and Joan, Countess of Flanders, during / Defontaines, chap. xxi. art. 34.
the reign of Louis VIII. He called THE SPIRIT OF LAWS 133 own name, because they could not summon their lord, but they could summon for their lord.?
Sometimes the appeal of default of justice was followed by an appeal of false judgment, when the lord had caused judgment to be passed, notwithstanding the default.^ The vassal who had wrongfully challenged his lord of default of justice was sentenced to pay a fine according to his lord's pleasure.* The inhabitants of Ghent had challenged the Earl of Flanders of default of justice before the king, for having delayed to give judgment in his own court.; Upon examination it was found, that he had used fewer delays than even the custom of the coun- try allowed. They were therefore remanded to him; upon which their eflFects to the value of sixty thousand livres were seized. They returned to the king's court in order to have the fine mod- erated; but it was decided that the earl might insist upon the fine, and even upon more if he pleased. Beaumanoir was pres- ent at those judgments.
4. In other disputes which the lord might have with his vas- sal, in respect to the person or honor of the latter, or to property that did not belong to the fief, there was no room for a challenge of default of justice; because the cause was not tried in the lord's court, but in that of the paramount: vassals, says Defontaines,^ having no power to give judgment on the person of their lord.
I have been at some trouble to give a clear idea of those things, which are so obscure and confused in ancient authors that to disentangle them from the chaos in which they were involved may be reckoned a new discovery.
29. — Epoch of the Reign of St. Louis St. Lcuis aboHshed the judicial combats in all the courts of his demesne, as appears by the ordinance he published thereupon,^ and by the Institutions.w But he did not suppress them in the courts of his barons, ex- cept in the case of challenge of false judgment.** fDefontaines, chap. xxi. art. 9. / In the year 1260. Beaumanoir, chap. Ixi. p. 311. m Book I. chaps, ii. and vii., and t Ibid., p. 312. But he that was book II. chaps, x. and xi. neither tenant nor vassal to the _ lord n As appears everywhere in the "In- paid only a fine of sixty livres. — Ibid. stitutions," etc., and Beaumanoir, chap. k Chap. xxi. art. 35.
134 MONTESQUIEU A vassal could not challenge the court of his lord of false judg- ment, without demanding a judicial combat against the judges who pronounced sentence. But St. Louis introduced the prac- tice of challenging of false judgment without fighting, a change that may be reckoned a kind of revolution.^ He declared P that there should be no challenge of false judg- ment in the lordships of his demesnes, because it was a crime of felony. In reality, if it was a kind of felony against the lord, by a much stronger reason it was felony against the king. But he consented that they might demand an amendment Q of the judg- ments passed in his courts; not because they were false or iniqui- tous, but because they did some prejudice.*" On the contrary, he ordained, that they should be obliged to make a challenge of false judgment against the courts of the barons,.^ in case of any complaint.
It was not allowed by the Institutions, as we have already ob- served, to bring a challenge of false judgment against the courts in the king's demesnes. They were obliged to demand an amend- ment before the same court; and in case the bailiff refused the amendment demanded, the king gave leave to make an appeal to his court; t or rather, interpreting the Institutions by themselves, to present him a request or petition."
With regard to the courts of the lords, St. Louis, by permitting them to be challenged of false judgment, would have the cause brought before the royal tribunal,^ or that of the lord paramount, not to be decided by duel w but by witnesses, pursuant to a cer- tain form of proceeding, the rules of which he laid down in the Institutions.^ Thus, whether they could falsify the judgment, as in the court of the barons; or whether they could not falsify, as in the court of his demesnes, he ordained that they might appeal without the hazard of a duel.
Defontaines y gives us the first two examples he ever saw, in which they proceeded thus without a legal duel: one, in a cause o " Institutions," book I. chap, vi., v But if they wanted to appeal withand book II. chap. xv. out falsifying the judgment, the appeal p Ibid, book II. chap. xv. was not admitted. — " Institutions," book q Ibid, book I. chap. Ixxviii., and II. chap. xv.
book II. chap. XV. w Book I. chaps, vi. and Ixvii.; and r Ibid, book I. chap. Ixxviii, book II. chap. xv.; and Beaumanoir, s Ibid, book II. chap. xv. chap. xi. p. 58.
t Ibid, book I. chap. Ixxviii. *Book I. chaps, i., ii., and iii.
u Ibid, book II. chap. xv. y Chap. xxii. arts. 16 and 17.
THE SPIRIT OF LAWS 135 tried at the court of St. Quentin, which belonged to the king's demesne; and the other, in the court of Ponthieu, where the count, who was present, opposed the ancient jurisprudence: but these two causes were decided by law.
Here, perhaps, it will be asked why St. Louis ordained for the courts of his barons a different form of proceeding from that which he had established in the courts of his demesne? The reason is this: when St. Louis made the regulation for the courts of his demesnes, he was not checked or limited in his views: but he had measures to keep with the lords who enjoyed this ancient prerogative, that causes should not be removed from their courts, unless the party was willing to expose himself to the dangers of an appeal of false judgment. St. Louis preserved the usage of this appeal; but he ordained that it should be made without a judicial combat; this is, in order to make the change less felt, he suppressed the thing, and continued the terms.
This regulation was not universally received in the courts of the lords. Beaumanoir saySj^^ that in his time there were two ways of trying causes; one according to the king's establish- ment, and the other pursuant to the ancient practice; that the lords were at liberty to follow which way they pleased; but when they had pitched upon one in any cause, they could not after- wards have recourse to the other. He adds,o that the Count of Clermont followed the new practice, while his vassals kept to the old one; but that it was in his power to re-establish the ancient practice whenever he pleased, otherwise he would have less au- thority than his vassals.
It is proper here to observe, that France was at that time di- vided into the country of the king's demesne, and that which was called the country of the barons, or the baronies; and, to make use of the terms of St. Louis's Institutions, into the country under obedience to the king, and the country out of his obedi- ence.& When the king made ordinances for the country of his demesne, he employed his own single authority. But when he published any ordinances that concerned also the country of his barons, these were made in concert with them,c or sealed and XT Chap. Ixi. p. 309. of the third race, in the collection of a Ibid. Lauriere, especially those of Philip 6 See Beaumanoir, Defontaines, and Augustus, on ecclesiastic jurisdiction; the " Institutions," book II. chaps, x., that of Louis VIII concerning the xi., XV., and others. Jews; and the charters related by Mr.
c See the ordinances at the beginning Brussel; particularly that of St. Louis, 136 MONTESQUIEU subscribed by them: otherwise the barons received or refused them, according as they seemed conducive to the good of their baronies. The rear-vassals were upon the same terms with the great-vassals. Now the Institutions were not made with the con- sent of the lords, though they regulated matters which to them were of great importance: but they were received only by those who believed they would redound to their advantage. Robert, son of St. Louis, received them in his county of Clermont; yet his vassals did not think proper to conform to this practice.
2P^— Observation on Appeals I apprehend that appeals which were challenges to a combat, must have been made immediately on the spot. " If the party leaves the court without appealing," says Beaumanoir,d " he loses his appeal, and the judgment stands good." This con- tinued still in force, even after all the restrictions of judicial com- bat.^ 31. — The same Subject continued The villain could not bring a challenge of false judgment against the court of his lord. This we learn from Defontaines,/' and he is confirmed moreover by the Institutions.^ Hence De- fontaines says,/* " between the lord and his villain there is no other judge but God."
It was the custom of judicial combats that deprived the villains of the privilege of challenging their lord's court of false judg- ment. And so true is this, that those villains i who by charter or custom had a right to fight had also the privilege of challenging their lord's court of false judgment, even though the peers who tried them were gentlemen;; and Defontaines proposes expedi- ents to gentlemen in order to avoid the scandal of fighting with a villain by whom they had been challenged of false judgment^ As the practice of judicial combats began to decline and the on the release and recovery of lands, and the feodal majority of young worn en, torn. ii. book III. p. 35, and ibid.- the Ordinance of Philip Augustus, p. 7. d Chap. Ixiii. p. 327; chap. Ixi. p. 312, e See the " Institutions " of St. Louis.
i Defontaines, chap. xxii. art. 7. This article, and the 21st of the 22d chapter of the same author, have been hitherto very badly explained. Defontaines does not oppose the judgment of the lord to that of the gentleman, because it was book II. chap, xv., and the Ordinance the same thmg; but he opposes the of Charles Vll in the year 1453. common villain to him who had the / Chap. xxi. arts. 21 and 22. privilege of fighting.
e Book L chap, cxxxvi. ^ j Gentlemen may always be appointed « Chap. ii. art. 8. judges. — Defontaines, chap. xxi. art. 48.
k Chap. xxii. art. 14.
THE SPIRIT OF LAWS 137 usage of new appeals to be introduced, it was reckoned unfair that freedmen should have a remedy against the injustice of the courts of their lords, and the villains should not; hence the Par- liament received their appeals all the same as those of freemen.
32. — The same Subject continued When a challenge of false judgment was brought against the lord's court, the lord appeared in person before his paramount to defend the judgment of his court. In like manner in the ap- peal of default of justice, the party summoned before the lord paramount brought his lord along with him, to the end that if the default was not proved, he might recover his jurisdiction./ In process of time as the practice observed in these two par- ticular cases became general, by the introduction of all sorts of appeals, it seemed very extraordinary that the lord should be obliged to spend his whole life in strange tribunals, and for other people's affairs. Philip of Valois ordained m that none but the bailiffs should be summoned; and when the usage of appeals became still more frequent, the parties were obHged to defend the appeal: the deed of the judge became that of the party."