Page:Harvard Law Review Volume 5.djvu/77

61 THE OLDER MODES OF TRIAL. 6 1 summons in a real action, with " ready to aver per pais." It was insisted by Prisot (C. J.) that this lay in the knowledge of the pais, and that all such things should in reason be triable by the jury. He admitted, however, that the practice had been other- wise. His associates, Danvers and Danby, agreed with him ; while Moyle and Ayshton pressed strongly the more conservative doc- trine. " This will be a strong thing," said Moile; " it has not been done before." " Since waging law," said Ayshton, " has always been practised, and no other way, this proves, in a way, that it is un positive ley. All our law is directed {guide) by usage or statute ; it has been used that no one wages his law in trespass, and the contrary in debt; so that we should adjudge according to the use," etc. No decision in the case is reported. But Brooke, in his Abridgment, in the next century, gives the latter view as optima opinio. By 1587 1 compurgation seems not merely to have been unusual, but to have had an archaic look, — in the eyes, at any rate, of the Chancellor. We read that the Star Chamber refused to deal with one who was alleged to have sworn falsely in making his law ; " the reason was because it was as strong as a trial. And the Lord Chancellor demanded of the judges if he were discharged of the debt by waging of his law; and they answered, 'yea.' But Man- wood (C. B.) said that it was the folly of the plaintiff, because that he may change his action into an action of the case upon an assumpsit, wherein the defendant cannot wage his law." In his report of Slade's Case (1602) Coke remarks 2 that courts will not admit a man to wage his law without good admonition and due examination. A century later it still keeps its place, but is strange and anti- quated, and the lawyers and judges have lost the clue. In 1699, in the Company of Glaziers Case, 3 in a debt on a by-law, the defendant had his law. When he came with his compurgators, the plaintiff's counsel urged that the court need not receive him to his oath if he were swearing falsely or rashly; " sed, per Holt, C. J., ' We can admonish him, but if he will stand by his law, we cannot hinder it, seeing it is a method the law allows.'" The reporter takes the pains to describe the details of the proceeding, 1 Goldsborough, 51, pi. 13. 2 4 Rep. p. 95. 8 Anon., 2 Salk. 682.