the defendant may be presumed to have made satisfaction, without being able to prove it. Therefore it obtains only in actions of debt upon simple contract, or for amercement in actions of detinue, and of account, where the debt may have been paid, the goods restored, or the account balanced, without any evidence of either.

Where it does not Lie. It does not lie, where there is any specialty, as a bond or deed to charge the defendant, for that would be cancelled, if satisfied; but when the debt arises by word only; nor does it lie in an action of debt, for arrears of an account, settled by auditors in a former action.

Effect. And by such wager of law, when admitted, the plaintiff is perpetually barred; for the law, in the simplicity of the ancient time, presumed that no one would forswear himself for any worldly thing.

Real Actions. Wager of law lies in a real action, where the tenant alleges he was not legally summoned to appear; as well as in mere personal contracts.

Parties Disbarred. A man outlawed, attainted for false verdict, for conspiracy or perjury, or otherwise becoming infamous, shall not be permitted to wage his law. Nor shall an infant under twenty-one, for he cannot take an oath. But a feme covert, when joined with her husband, may be admitted to wage her law, as may also an alien. It is a rule, that where a man is compellable by law to do anything, whereby he becomes creditor to another, the defendant in that case may not wage his law, for then it would be in the power of a bad man to incur debt, against the wishes of his creditor, and afterwards to swear it away.

Exceptional Cases. But where the plaintiff has given. voluntary credit to the defendant, there he may wage his law, for by giving him such credit, the plaintiff has himself born testimony, that he is one whose character may be trusted. Hence in an action of debt against a prisoner, by a jailer, for his victuals, the defendant shall not wage his law, for the jailer cannot refuse him sustenance, but otherwise, for the board of a man at liberty. In an action for debt by an attorney for his fee, the defendant cannot wage his law, because the plaintiff is compellable to be his attorney. So in an action of debt by a servant, where he has been retained according to the statute of laborers, which obliges certain persons to go out to service, the master shall not wage his law, because the plaintiff was compellable to serve. But it is otherwise, if the hiring was by special contract.

Not Allowed when Damage Uncertain. In no case, where a contempt, trespass, deceit or any injury with force is alleged, can the defendant wage his law, for he cannot have satisfied the plaintiff his demand, in cases where damages are uncertain, and left to be assessed by a jury. Nor will the law trust the defendant with an oath to discharge himself, where the private injury is coupled as it were with a public crime, that of force and violence, which would be equivalent to the purgation oath of the civil law, which ours has so justly rejected.

Executors Barred. Executors and administrators, when charged for the debt of the decedent, shall not be permitted to wage their law, for no man can with a safe conscience wage law of another man's contract, that is, swear that he never entered into it, or privately discharged it.

The King and his Debtors. The king also has his prerogative; for as a wager of law imports a reflection on the plaintiff for dishonesty, there shall be no wager on actions brought by him. And this prerogative extends to his debtor, for in a writ of quo minus in the exchequer, for a debt on simple contract, the defendant is not allowed to wage his law.

Thus the wager of
Thus the

Summary. New Forms Introduced. law was never permitted, but where the defendant bore a good character, and it also was confined to such cases, where a debt might be supposed to be discharged, or satisfaction made in private, without any witness to attest it, and many other prudential restrictions accompanied this indulgence. By degrees, new forms of action were introduced, and new remedies devised, wherein no defendant was at liberty to wage his law. So that now no plaintiff need apprehend any danger from the hardiness 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.

Trespass on the Case Substituted. Therefore one shall hardly hear at present of an action of debt brought upon a simple contract; this being supplied by an action of trespass on the case for the breach of promise or assumpsit, wherein, though the specific debt cannot be recovered, yet damages may be given equivalent thereto. And this being an action of trespass, no wager of law can be waged therein.

Trover and Conversion Substituted. So instead of an action of detinue to recover the very thing detained, an action on

the case in trover and conversion is usually brought, wherein though the specific chattel cannot be had, yet the defendant shall pay damages for the conversion, equal to the value of the chattel; and for this trespass also, no wager of law is allowed.

Bill in Equity Substituted. In place of actions of account, a bill in equity is usually filed, wherein though the defendant answers under oath, yet such oath is not conclusive on the plaintiff, but he may prove everything by other evidence, in contradiction of the defendant's evidence.

Fallen into Disuse. 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. Hence 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 is allowed.

CHAPTER XXIII.—TRIAL BY JURY.

Its History. The trial by jury, or per pais, by the country, has been used out of mind in England; probably coeval with the first civil government of the land. It was certainly in use among the earliest Saxon colonies. We find traces of juries in the laws of all those nations which adopted the feudal system, as in Germany, France and Italy, who had all of them a tribunal, composed of twelve good men and true, boni homines, usually the vassals or tenants of the lord, being the equals or peers of the parties litigant. The laws of king Ethelred mention them. This tribunal was universally established among the northern nations, and so interwoven in their very constitutions, that the earliest accounts of one give traces of the other. Its establishment in England, though for a time greatly impaired by the introduction of the Norman trial by battle, was always so highly valued by the people, that no conquest nor change of government could prevail to abolish it. In magna carta, it is termed the principal bulwark of our liberties, and in all countries, it is esteemed as a privilege of the highest and most beneficial nature.

Two Kinds in Civil Causes. Extraordinary and ordinary.

Two species of extraordinary trials by jury are that of the grand assize, and the jury to try an attaint.1

The Issue and Venire, When therefore an issue is joined by these words: "And this the said A. prays may be inquired of by the country," or, "And of this he puts himself upon the country, and the said B. does the like," the court awards a writ of venire facias, commanding the sheriff, "that he cause to come here on such a day, twelve free and lawful men of his county, by whom the truth of the matter may be better known, and who are not of kin to A. or B. to recognize the truth of the issue between the said parties."

Jurisdiction. Thus the cause stands ready for a trial at the bar of the court. Trifling suits were ended in the court baron, hundred or county courts, but all causes of great importance are still usually retained upon motion, to be tried at the bar in the superior court. To avoid compelling parties, witnesses and jurors to try an unimportant action at Westminster, a practice obtained of continuing the cause from term to term in the court above, provided the justices did not previously come into the county, where the cause of action arose. If they arrived there within that interval, the cause was removed from Westminster to that of the justices in eyre. These were superseded by the modern justices of assize, who came twice or thrice each year into the several counties.

Summoning Jurors. As only the trial, and not the determination of the cause, was now intended to be had in the court below, therefore the clause of nisi prius was omitted from the conditional continuances, and was inserted in the writs of venire facias, that is, that the sheriff should cause the jurors to come to Westminster on such a day, nisi prius, "unless before that day, the justices assigned to take assize, should come into his said county." The sheriff returned his jurors to the court of the justices of assize, and there the trial was had. This clause of nisi prius is now left out of the writ of venire facias, and inserted elsewhere in the proceedings. No inquests, except of assize and jail delivery, shall now be taken by writ of nisi prius till after the sheriff returns the names of the jurors to the court above.

Return of the Venire. The practice now is to make the sheriff's venire returnable on the last return of the same term,

1 Abolished.

wherein issue is joined, which from the making up of the issues therein are usually called issuable terms. He returns the names of the jurors in a panel, a little pane, or oblong piece of parchment, annexed to the writ.

Jury must Appear at the Assizes. This jury is not summoned, and hence makes default. Then a compulsory process is awarded against the jurors, a distringas or habeas corpora juratorum, commanding the sheriff to have their bodies, or to distrain their lands and goods, that they may appear upon the day appointed. The writ then commands the sheriff to have their bodies at Westminster on the first day of the next term, or before the said justices of assize, if before that time they meet. As the judges are sure to come to the circuit, among whom are usually two of the judges of the court of Westminster, the sheriff returns and summons the jury to appear at the assizes, and there the trial is had before the justices of assize and nisi prius.

Sheriff an Interested Party. If the sheriff be a party to the suit, or be related by blood or affinity to either of the parties, the venire shall be directed to the coroner, who may be substituted for the sheriff in this and similar contingencies. If the coroner is also interested, the venire shall be directed to two clerks of court, or two persons of the county, named by the court and sworn. These elisors in such case shall name the jury, and their return is final, no challenge being allowed to their array.

The

Advantages of this System. (1.) The Sheriff. person returning the jurors is a man of some consequence and not likely to commit wilful errors, but is responsible for the faults of himself and officers, and by the obligation of his oath to fulfil his duty.

(2.) Ample Notice Given. As to the time of their return. The panel is returned to the court upon the original venire, and the jurors summoned weeks in advance of the trial, whereby the parties may have notice of the jurors, and of their sufficiency, characters, connections and relations, that so they may be challenged on just cause, while by means of the compulsory process of distringas or habeas corpora, the cause is not likely to be retarded for want of jurors.

(3.) Place of Trial. The place of their appearance, which in cases of consequence is at the bar of the court, in ordinary cases is at the assizes held in the county, where the cause of