Page:Harvard Law Review Volume 5.djvu/73

57 THE OLDER MODES OF TRIAL. S7 result which left his proof the better. 1 This old catch of qui mienlx prove mieulx av., a pretty certain badge of antiquity, ap- pears again sixty years later. A woman brought an appeal for her husband's death. The defendant said he was alive. The par- ties were directed to bring their witnesses, et celui qui ineuch prova meuch av. 2 In 1560, in the interesting case of Thorne v. Rolfif, 3 we have an instance where, in dower, issue was taken on the death or life, and the parties were called on to inform the court " per proves, [i.e., witnesses] ut oportet." The demandant brought two, " who were sworn and examined by Leonarde, second pro- thonotary." These statements are entered in full on the record, which is all given in Benloe's report. The two statements occupy about a page of the folio. Then it is recorded that the tenant produced no witnesses, and the court admits what is offered, as bonam, probabilem et veram probationem, and gives judgment for the demandant. Dyer connects this with the old law by citing Bracton, 302, where he speaks of deciding in such cases according to the probatio magis valida. The number, rank, and position of the witnesses are what Bracton alludes to. But it is probable that by the time of Thorne v. Rolff the rational method of con- ducting the " trial by witnesses " had taken place ; for Coke, half a century later, 4 in enumerating " divers manners of trials," designates this as "trial by the justices upon proofs made before them ; " and so Comyns, a hundred years afterwards. 5 Blackstone, however, later in the last century, 6 and Stephen, 7 pour back again this new wine into, the old bottles and call this wholly modern thing by the old name of " trial by witnesses." Blackstone's explanation of it shows little knowledge of its history. And at last this venerable and transformed relic of the Middle Ages was abolished in England, when real actions came to an end by the statute of 1833. IV. Trial by Oath. — As the Anglo-Saxons required from a 1 Dyer, 185 a, pi. 65, quotes this case as showing four witnesses for the woman and twelve for the tenant. 2 Lib. Ass. 273, 26; Brooke, Ab., Trial, 90, makes the phrase read cesty qui nient provera nient avera. 8 Dyer, 185 a, ed. 1601 ; s. c. Old Benloe, 86. 4 Case of the Abbot of Strata Mercella, 9 Co. 30 b. 6 Digest, Trial (B). 7 Pleading, Tyler's ed. (from the 2d Eng. ed., 1827), 114, 131.
 * Com. iii., c. 22.