between Alfred and Guthrun the Dane; for by the old Saxon constitution every man's credit in courts of law depended upon the opinion which his neighbours had of his veracity. The defendant then standing at the end of the bar, is admonished by the judges of the nature and danger of a falfe oath. And if he ftill perfifts, he is to repeat this or the like oath: "hear this, ye juftices, that I do not owe ❝ unto Richard Jones the fum of ten pounds, nor any penny "thereof, in manner and form as the said Richard hath de"clared against me. So help me God." And thereupon his eleven neighbours or compurgators fhall avow upon their oaths, that they believe in their confciences that he faith the truth; so that himself must be fworn de fidelitate, and the eleven de credulitate. It is held indeed by later authorities & that fewer than eleven compurgators will do ; but fir Edward Coke is pofitive that there must be this number; and his opi nion not only seems founded upon better authority, but alfo upon better reason: for, as wager of law is equivalent to a verdict in the defendant's favour, it ought to be established by the fame or equal teftimony, namely, by the oath of tavelve men. And fo indeed Glanvil expreffes it", "jurabit duode"cima manu" and in 9 Henry III. when a defendant in an action of debt waged his law, it was adjudged by the court "quod defendat fe duodecima manu." Thus too, in an author of the age of Edward the firft, we read, "adjudicabitur reus "ad legem fuam duodecima mani." And the antient treatise, entitled, Dyverfite des courts, exprefsly confirms fir Edward Coke's opinion'. IT must be however obferved, that fo long as the cuftom [344] continued of producing the feta, the fuit, or witneffes to give probability to the plaintiff's demand, (of which we fpoke in a former chapter) the defendant was not put to wage his law unless the feta was first produced, and their teftimony was found confiftent. To this purpose speaks magna carta, c. 28. "Nullus ballivus de caetero ponat aliquem ad legem manifeftam," (that is, wager of battel) "nec ad juramentum,” (that is, wager of law) "fimplici loquela fua," (that is, merely by his count or declaration) "fine teftibus fidelibus ad hoc inductis.". Which Fleta thus explains": "fi petens fectam produxerit, et concordes "inveniantur, tunc reus poterit vadiare legem fuam contra peten"tem et contra feclam fuam prolatam, fed fi fecla variabilis in« veniatur, extunc non tenebitur legem vadiare contra sectam il"lam." It is true indeed, that Fleta exprefsly limits the number of compurgators to be only double to that of the secla produced; "ut fi duos vel tres teftes produxerit ad probandum, (6 oportet quod defenfio fiat per quatuor vel per fex; ita quod "pro quolibet tefte duos producat juratores, ufque ad duodecim:" fo that according to this doctrine the eleven compurgators were only to be produced, but not all of them fworn, unless the fecta confifted of fix. But, though this might poffibly be the rule till the production of the fecta was generally disused, fince that time the duodecima manus seems to have been generally required". In the old Swedish or Gothic conftitution, wager of law was not only permitted, as it ftill is in criminal cafes, unless the fact be extremly clear against the prisoner; but was also abfolutely required, in many civil cafes: which an author of their own P very juftly charges as being the fource of frequent perjury. This, he tells us, was owing to the popish ecclefiaftics, who introduced this method of purgation from their canon law; and, having fown a plentiful crop of oaths [345] in all judicial proceedings, reaped afterwards an ample har veft of perjuries for perjaries were punished in part by pecuniary fines, payable to the coffers of the church. But with us in England wager of law is never required; and is then only admitted, where an action is brought upon fuch matters as may be fuppofed to be privately tranfacted between ml. 2. c. 63. Bro. Abr. 1. ley gager. 9. • Mod. Un. Hift. xxxiii. 22. the parties, and wherein the defendant may be prefumed to have made fatisfaction without being able to prove it. Therefore it is only in actions of debt, upon fimple contract, or for amercement, in actions of detinue, and of account, where the debt may have been paid, the goods restored, or the account ballanced, without any evidence of either; it is only in these actions, I fay, that the defendant is admitted to wage his law fo that wager of law lieth not, when there is any fpecialty (as a bond or deed) to charge the defendant, for that would be cancelled if satisfied; but when the debt groweth by word only: nor doth it lie in an action of debt, for arrears of an account, fettled by auditors in a former action'. And by fuch wager of law (when admitted) the plaintiff is perpetually barred; for the law, in the fimplicity of the antient times, prefumed that no one would forfwear himself for any worldly thing. Wager of law however lieth in a real action, where the tenant alleges he was not legally fummoned to appear, as well as in mere perfonal contracts'. A MAN outlawed, attainted for falfe verdict, or for confpiracy or perjury, or otherwise become infamous, as by pronouncing the horrible word in a trial by battel, fhall, not be permitted to wage his law. Neither fhall an infant under the age of twenty-one, for he cannot be admitted to his oath; and therefore, on the other hand, the course of justice shall flow equally, and the defendant, where an infant is plaintiff, fhall not wage his law. But a feme-covert, when joined with her husband, may be admitted to wage her law; and an alien fhall do it in his own language ". It is moreover a rule, that where a man is compellable by [346] law to do any thing, whereby he becomes creditor to another, the defendant in that cafe fhall not be admitted to wage his. law for then it would be in the power of any bad man to run in debt first, against the inclinations of his creditor, and afterwards to swear it away. But where the plaintiff hath [ 37 ] BOOK III, given voluntary credit to the defendant, there he may wage his law; for, by giving him fuch credit, the plaintiff has himfelf borne teftimony that he is one whose character may be trufted. Upon this principle it is, that in an action of debt against a prisoner by a gaoler for his victuals, the defendaut fhall not wage his law: for the gaoler cannot refuse the prifoner, and ought not to fuffer him to perifh for want of fuftenance. But otherwife it is for the board or diet of a man at liberty. In an action of debt brought by an attorney for his fees, the defendant cannot wage his law, because the plaintiff is compellable to be his attorney. And fo, if a fervant be retained according to the ftatute of labourers, 5 Eliz. c. 4. which obliges all fingle perfons of a certain age, and not having other visible means of livelihood, to go out to fervice; in an action of debt for the wages of fuch a fervant, the mafter fhall not wage his law, because the plaintiff was compellable to ferve. But it had been otherwife, had the hiring been by special contract, and not according to the statute ". In no cafe where a contempt, trefpafs, deceit, or any injury with force is alleged against the defendant, is he permitted to wage his law: for it is impoffible to prefume he has fatisfied the plaintiff his demand in fuch cafes, where damages aré uncertain and left to be affeffed 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 fo justly rejected. EXECUTORS and adminiftrators, when charged for the debt of the deceased, fhall not be admitted to wage their law': for no man can with a fafe confcience wage law of another man's contract; that is, fwear that he never entered into it, or at leaft that he privately difcharged it. The king alfo has his prerogative; for, as all wager of law imports a reflection on the plaintiff for dishonesty, therefore there fhall be no fuch Ibid. Raym. 286. Co. Litt. 295. y Finch. L. 424. wager wager on actions brought by him. And this prerogative extends and is communicated to his debtor and accomptant; for, on a writ of quo minus in the exchequer for a debt on fimple contract, the defendant is not allowed to wage his law. THUS the wager of law was never permitted, but where the defendant bore a fair and unreproachable character; and it also was confined to fuch cafes where a debt might be fupposed to be discharged, or fatisfaction made in private, without any witnesses to atteft it: and many other prudential reftrictions accompanied this indulgence. But at length it was confidered, that (even under all it's reftrictions) it threw too great a temptation in the way of indigent or profligate men: and therefore by degrees new remedies were devifed, and new forms of action were introduced, wherein no defendant is at liberty to wage his law. So that now no plaintiff need at all apprehend any danger from the hardiness of his debtor's conscience, unless he voluntarily chufes 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 fimple contract: that being supplied by an action of trespass on the cafe for the breach of a promise or affumpfit; wherein, though the fpecific debt cannot be recovered, yet damages may, equivalent to the specific 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 trefpafs on the cafe in trover and converfion is ufually brought; wherein, though the horse or other specific chattel cannot be had, yet the defendant shall [348] pay damages for the converfion, 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 fuch oath is not conclufive to the plaintiff; but he may prove every article by other evidence, in contradiction to what the defendant has fworn. So that wager of law is quite out 2 Finch. L. 425. a Co. Litt. 295. of |