Page:Harvard Law Review Volume 5.djvu/66

50 50 HARVARD LAW REVIEW. this general conception. The history of our law from the begin- ning of it is strewn with cases of the profert of documents. This last relic of the principle of the Saxon fore-oath and the Norman complaint-witness was not abolished in England until 1852. 1 A few cases will illustrate what has been said about the secta. In 1202, in the King's Court, an appeal was brought for assault- ing the plaintiff and wounding him with a knife in the jaw and arm, " and these wounds he showed, and this he offers to prove . . . by his body." 2 In 1226 3 William seeks to recover of Warinus twelve marks on account of a debt due from his father for cloth, et hide producit sectam que hoc tcstatur. Warinus comes and defends, and asks that William's secta be examined. This is done, and the secta confess that they know nothing of it, and moreover they do not agree (divcrsi stent in omnibus rebus) ; and William has no tally or charter and exhibits nothing, and it is adjudged therefore that the defendant go quit. In 1229 4 Ada demands of Otho eleven pounds, which her father had lent him, and makes profert of a tally, and produces a secta which testifies that he owes the money. Otho denies it, and is adjudged to make his proof with eleven compurgators — defendat se duodecimo, manu. A case in 1323 draws attention to the exact effect of the complaint- proof. 5 A woman claimed dower, alleging that her husband had endowed her assensu patris, and put forward a deed which showed the assent. The defendant traversed ; some discussion followed as to how the issue was to be tried, and as to the effect of the deed. Counsel for the defendant said, " The deed which you show effects nothing beyond entitling you to an answer." . . . Counsel for the plaintiff: "True, but ... he can only have such issue as the deed requires." With the gradual discrediting of party proof and the formal procedure, the secta steadily faded out. As early as 13 14 6 we find counsel saying that the Court of Common Bench will not allow the secta to be examined. Ten years later, 7 a demand for 1 St. 15 & 16 Vic, c. 76, s. 55. 2 Selden, Soc. Pub. i., case 87. This was good old Germanic usage. Brunner, Schw. 201. Compare LL. H. I. xciv., 5 (Thorpe, i. 608). 8 Bracton's Note Book, iii., case 1693. 4 Bracton's Note Book, ii., case 325. 6 Y. B. Ed. II. 507. « Y. B. Ed. II. 242. 1 lb. 582.