Dishonest Interest. However fertile in legal controversies may be the result of the ignorance and wilfulness of individuals, they are largely outnumbered by the dishonesty and disingenuity of parties; by either suggesting complaints that are false in fact, and thereupon bringing groundless actions, or by their denying such facts, as are true, in setting up unwarrantable defences. Ex facto oritur jus. If, therefore, the fact be perverted or misrepresented, the law which arises from thence will be unavoidably unjust or impartial. And in order to prevent this, and to set right the fact, and establish the truth contended for, it is necessary to appeal to some mode of trial, which the law of the country has ordained for a criterion of truth and falsehood.

Trial Defined. Trial is the examination of the matter of fact in issue. Experience shows, that a hundred of our law suits arise from disputed facts, for one, where the law is doubted. There are many different species of trial, according to the different subjects or things to be tried. The law of England, in its endeavors to investigate truth, will not confine itself to one or a few matters of trial, but varies its examination of facts according to the nature of the facts themselves, the invariable principle being, that as well the best method of trial, as the best evidence upon that trial, and which the nature of the case affords, and no other, shall be admitted in an English court of justice.

SEVEN SPECIES OF TRIAL IN CIVIL CASES.

By record; by inspection or examination; by certificate; by witnesses; by wager of battle; by wager of law, and by jury.

I. TRIAL BY RECORD.

When Resorted to. This is only used in one particular instance, and that is, where a matter of record is pleaded in any action, as a fine, a judgment, or the like, and the opposite party pleads "nul tiel record," that there is no such matter of record existing. Upon this, issue is tendered: "And this he prays, may be inquired of by the record, and the other doth the like." Hereupon the party pleading the record has a day given him to bring it in, and proclamation is made in court for him to "bring forth the record by him in pleading alleged, or else he shall be condemned," and on his failure, his antagonist shall recover.

The Record Itself. The trial, therefore, of this issue is merely by the record, for as Coke observes, a record is of so high a nature, and imports in itself such absolute verity, that if it be

pleaded, there is no such record, it shall not receive any trial by witness, jury or otherwise, but only by itself.

II. TRIAL BY INSPECTION OR EXAMINATION.

When Resorted to. This occurs, when for the greater expedition of a cause, in some point or issue, being either the principal question or arising collaterally out of it, but being evidently the object of the senses, the judges of the court, upon the testimony of their own senses, shall decide the point in dispute.

Jury Unnecessary. For where the affirmative or negative of a question is matter of such obvious determination, it is not thought necessary to summon a jury to decide it, who are properly called in to inform the conscience of the court, in respect of dubious facts; and therefore when the fact from its nature must be evident to the court, either from ocular demonstration or other irrefragable proof, there the law departs from its usual resort, the verdict of twelve men, and relies on the judgment of the court alone.

Example. If a defendant pleads in abatement of the suit, that the plaintiff is dead, and one appears and calls himself the plaintiff, which the defendant denies; in this case the judges shall determine, by inspection or examination, whether he be the plaintiff or not. In all of these cases, the judges, if they conceive a doubt, may order it to be tried by jury.

III. TRIAL BY CERTIFICATE.

When Allowed, This is allowed in such cases, where the evidence of the person certifying is the only proper criterion of the point in dispute. For when the fact in question lies out of the cognizance of the court, the judges must rely on the solemn averment of persons in such a station, as affords them the most clear and competent knowledge of the truth. As therefore such evidence, if given to a jury, must have been conclusive, the law to save trouble and circuity, permits the fact to be determined upon such certificate.

IV. TRIAL BY WITNESSES.

Without a Jury, This trial, per testes, is without the intervention of a jury. This is the only method of trial known to the civil law, in which the judge is left to form his sentence upon the credit of the witnesses examined. Ii is very rarely used. It may be resorted to when a widow brings a writ of dower, and the

tenant pleads that the husband is not dead. This being looked upon as a dilatory plea, is allowed to be tried by witnesses, examined before the judge. In every case, says Coke, the affirmative must be proved by two witnesses at the least.1

V. TRIAL BY WAGER OF BATTLE.

History and Origin. This species of trial is of great antiquity, but is now disused. It owed its origin to the military spirit of our ancestors, joined to a superstitious frame of mind; it being in the nature of an appeal to Providence; under a belief, that heaven would give the victory to him who had the right. The Burgundians, a German clan, resident in Gaul, first introduced it. It was the common usage of all those warlike people from the earliest times. The early Germans usually decided all contests of right by the sword. This trial was introduced into England among other Norman customs by William the Conqueror, but was only used in three cases, one military, one criminal and one civil. The first, in the court-martial or court of chivalry and honor; the second, in appeals of felony; and the third, upon issue joined in a writ of right, the last and most solemn decision of real property.

Writs of Right. For in writs of right, the jus proprietatis is in question, but other real actions merely involve questions of the jus possessionis, which are usually more plain and obvious, and need not the decision of Providence. Another pretext for allowing it upon these final writs of right, was also for the sake of such claimants as might have the true right, but yet by the death of witnesses or other defect of evidence, are unable to prove it to a jury.

The Contest. Where the tenant in a writ of right pleads the general issue, that he has more right to hold than the demandant has to recover, and offers to prove it by the body of his champion, which tender is accepted by the demandant, then the champion of the tenant throws down his glove as a gage or pledge, and thus wages or stipulates battle with the champion of the demandant, who by taking up the glove accepts the challenge. The reason why it is waged by champions, and not by the parties themselves, in civil actions, is because, if any party to the suit die, the suit must abate, and therefore no judgment be

1 In courts of law, in general, one witness suffices. In courts of equity, two witnesses are usually required.-Chitty.

given by the lands, if either of the parties was slain; and also that no person might claim exemption, as was allowed in criminal cases, where the battle was waged in person. A piece of ground is laid out sixty feet square, on one side of which sit the judges of the common pleas, clad in their scarlet robes; also a bar is prepared for the learned serjeants at law. The court sits at sunrise, and the combatants are bound to fight till the stars appear in the evening. If the champion of the tenant can hold out that long, the tenant shall prevail, for it is a drawn battle, and he is in possession. Judgment is given for the party, whose champion is victorious. The weapons allowed them are only batons or staves, an ell long, so that but seldom death occurs. Each combatant has a leather target. In the court military, they fought with sword and lance. First, the champions grasp other's hands, the one taking oath, that the tenements in dispute are not the right of the demandant; the other swears in like manner that they are. They next take an oath against sorcery and enchantment.

each

The Victory. The victory may arise from the death of either champion, or if either champion proves recreant, that is, yields, and pronounces the horrible word "craven," which consigns him to obloquy and makes him infamous, and not to be accounted liber et legalis homo, being supposed by the event to be found forsworn, and hence never thereafter put upon a jury, or allowed to testify as a witness. The tenant or defendant in a writ of right had it in his election to demand the trial by battle.

VI. TRIAL BY WAGER OF LAW.

Defined. The defendant in this case puts in sureties, that at such a day he will take the benefit, which the law has allowed him. Our ancestors considered, that an innocent man of good credit might be overborne by a multitude of false witnesses, and therefore established this species of trial, by the oath of the defendant himself, for if he will absolutely swear himself not chargeable, and appears to be a person of reputation, he shall go free and forever acquitted of the debt or other cause of action.

History. This method of trial is not only to be found in the codes of almost all the northern nations, but its original may be traced as far back as the Mosaical law. "If a man deliver unto his neighbor an ass or an ox, or any beast to keep, and it die or be hurt or be driven away, no man seeing it; then shall an oath of

the Lord be between them both, that he has not put his hand unto his neighbor's goods, and the owner of it shall accept thereof, and he shall not make it good." There is also a resemblance between this species of trial, and the canonical purgation of the clergy, when accused of any capital crime. The defendant, or person accused, was in both cases to make oath of his own innocence, and to produce a certain number of compurgators, who swore that they believed his oath. This is similar to the sacramentum decisionis of the civil law, where one of the parties to the suit, not being able to prove his charge, offered to refer the decision of the cause to the oath of his adversary, which the adversary was bound to accept, or tender the same proposal back again, otherwise the whole was taken as confessed by him.

Manner of Waging Law, He, who has waged or given security, brings with him into court eleven of his neighbors, for by the old Saxon constitution every man's credit in courts of law depended upon the opinion, which his neighbors had of his veracity. The defendant is then admonished of the nature and danger of a false oath. He then swears: "I do not owe unto A. B. the sum of ten pounds, nor any penny thereof, in manner and form as the said A. B. hath declared against me. So help me God." And thereupon his eleven neighbors shall avow, upon their oaths, that they believe him. As a wager of law is equivalent to a verdict, it ought to be established by equal testimony, namely, by the oath of twelve men.

Witnesses. As long as the custom continued of producing the secta, the suit, or witnesses to give probability to the plaintiff's demand, the defendant was not put to wage his law, unless the secta was first produced, and their testimony was found consistent.

Gothic Law. In the old Swedish or Gothic constitution, wager of law was not only permitted, as it still is in criminal cases, but was absolutely required, in many civil cases, which occasioned frequent perjury. Ecclesiastics introduced this method of purgation from their canon law, and the frequent perjuries that resulted were punished in part by pecuniary fines, payable to the church.

England. In what Cases Allowed. In England, wager of law has never been required, and has only been admitted, where an action is brought upon such matters, as may be supposed to be privately transacted between the parties, and wherein