Page:Harvard Law Review Volume 5.djvu/67

51 THE OLDER MODES OF TRIAL. 5 1 examining the secta reveals the fact that the plaintiff has none; and this defeats his claim. Finally, in 1343, 1 in an action of debt for money due, partly under a bond and partly by " contract," we read: "Rich: As to the obligation, we cannot deny it; as to the rest, what have you to show for the debt? Moubray: Good suit (secta). Rich : Let the suit be examined at our peril. Moubray: Is that your answer? Rich: Yes, for you furnish suit in this case of contract in lieu of proof of the action. Moubray: Suit is only tendered as matter of form in the count ; wherefore we demand judgment. Sh. (^.) : 2 It has been heard of that suit was examined in such cases, and this opinion was afterwards disproved (reprove). Sh. (^.) : 2 Yes, the same Justice who ex- amined the suit on the issue _pur issue'] saw that he erred and condemned his own opinion. Gayneford : In a plea of land the tendering of suit is only for form, but in a plea which is founded on contract that requires testimony, the suit is so examinable tesmoinable that, without suit, if the matter be challenged, the [other] party is not required to answer. Sh. ( y.) : 2 Certainly it is not so; and therefore deliver yourselves. Rich: No money due him," etc. 3 The thing is evidently antiquated by this time. And yet, as we saw, it continued as a form in pleading for nearly five centuries longer. III. Trial by Witnesses. — This appears to have been one of the oldest kinds of " one-sided " proof. There was no testing by cross-examination ; the operative thing was the oath, and not the probative quality of what was said, or its persuasion on a judge's mind. 4 Certain transactions, like sales, had to take place before previously appointed witnesses. Those who were present at the church door when a woman was endowed, or at the execu- tion of a charter, were produced as witnesses. It was their state- 1 Y. B. 17 Ed. III. 48, 14. 2 Whether Shardelowe or Shareshull, both judges of the Common Bench, at this time, I do not know. 8 Selden, as one would think, misconceived this matter when he said (Note 8, For- tescue de Laud., c. xxi), after citing a case of trial by witnesses, in 1234, printed for the first time in Maitland's invaluable " Bracton's Note Book " four years ago : " The proofs of both sides are called secta. It was either this or some like case that Shard[elowe] entended in 17 Ed. III., fol. 48 b, in John Warrein's case — speaking of a justice that examined the suit. And it appears [he adds truly] there, that under Ed. III., the tendering of suit or proofs was become only formal as at this day, like the plegii de prosequendo.
 * Brunner, Schw. 54-59.