Page:Harvard Law Review Volume 5.djvu/384

368 368 HAR VARD LA W RE VIE W. a record of about the year 1200, in which a litigant in Normandy gives the king ( John ) twenty besants that a recognition upon a recognition be not made in a certain case, injaste et contra consue- tudinem Normannice. In England the continental rule held as re- gards the writ of right ; in this the great assise ended the contro- versy as absolutely as the duel which it displaced. Whatever is settled in the King's Court by the duel, says Glanville (lib. ii. c. 3 ), is settled forever. And again ( ii. c. 6), where a matter is set- tled by the great assise, tarn finaliter quant per duellum ter. minabitur negotiant. Yet, none the less, even here, as we have seen, was a punishment provided for perjury by the assise jury — that pena eleganter inserta already mentioned. In 1227 (Br. N. B. ii., case 262) a certain prior had lost, in a writ of right of an advowson, — the great assise finding for the defendant, quia non viderunt quod idem, prior or any of his predecessors presented a clerk at the church in question. There- upon the prior came, alleged that there was a false oath, and put forward half a dozen charters which seemed to prove it. The de- fendant, relying on the finality of the former trial, simply declined to answer and demanded judgment. Yet the case seems to have been thought doubtful, for it was postponed, to give time for a conference with the king and with other justices. The prior did not appear at the day given, and the defendant had judgment. This seems to have been an irregular attempt at attainting the jurors of the great assise; for these jurors appear to have been summoned, and at the postponement the order was et juratores sine die donee aliud audiverint. The annotator also remarks upon the margin : " Note, that not easily may the jurors in the great assise be attainted " : JVota, quod jut atores in magna assisa non poterunt convinci de facili. In his treatise Bracton (290-290$) says that in all assises, except the grand assise, the convictio (attaint ) lies ; and for this exception he gives the very inadequate reason that the tenant has consented to the grand assise and cannot go back upon his own proof. The true reason appears to be merely that in this case the old law had not been changed. real actions, /Aat the demandant shall count in words that express the truth, w.thout being subject to any challenge on account of words, — sine calumpnia verborum, non observata ilia dura consuetudine, qui cadit a sillaba cadit a tola causa. See ako the rigor which was customary before the statutes of jeofail, as indicated by Stat. 14 Edw. 3, c. 6. The curious discissions over this statute, in Y. B. 40 Edw, III. 34, 18, and 11 II. IV. 70,4, are worth remarking.