THE OLDER MODES OF TRIAL. 49 grand assize one was always enough, but generally two or more were required ; and as in the duel the witness might be challenged, so in other trials the defendant could stake his case on an exam- ination of the complaint-witnesses, and if they disagreed among themselves he won. Apart from this, the complaint-witnesses need not be sworn ; they might be relatives or dependents of the party for whom they appeared. As they were not necessarily examined at all, so in later times they were not even produced, and only the formula in the pleadings was kept up. In this form, as a mere expression in pleading, et inde producit sectam, the Secta (Suit) continued to live a very long life; so that within our own century we read as the third among Stephen's " prin- cipal rules of pleading," that " the declaration should, in conclu- sion, lay damages and allege production of suit. . . . This applies to actions of all classes. . . . Though the actual pro- duction has for many centuries fallen into disuse, the formula still remains, . . . 'and therefore he brings his suit,'" etc. 1 This formula even survived the Hilary rules of 1834. It was the office of the secta to support the plaintiffs case, in advance of any answer from the defendant. This support might be such as to preclude any denial, as where one was taken " with the mainour" and the mainour produced in court, 2 or where the defendant's own tally or document was produced, or, as we have noticed, where a defendant chose to stake his case on the answers of the secta. Documents, tallies, the production of the mainour, the showing of the wound in mayhem, all belong under 1 Pleading (Tyler's ed., from the 2d I.ond. ed. of 1827), 370-2. 2 Palgrave has a lively thirteenth century illustration of this in his fiction founded on fact, " The Merchant and the Knar," 173 ; see also Palg. Eng. Com., ii. p. clxxxvii, pi. 21 (1221); s. c. Maitland, PI. Crown for Gloucester, 92, pi. 394; ib. 45, pi. 174, and notes pp. 145, 150; Pike's Hist. Crime, i. 52. It is an entire misapprehension to suppose, as Stephen does, Hist. Cr. Law, i. 259, that this is a trial. The point of the matter is that trial is refused. This principle also covered cases that were not so plain ; as in 1222 (Br. N. B'k, ii., case 194), in an action for detaining the plaintiff's horse which he had sent by his man to Stamford market for sale, it is charged that the defendant had thrown the man from the horse in the market, imprisoned him five days, kept the horse so that afterwards he was seen in the Earl of Warenne's harrow at Stamford, etc., et hide producit sectam (giving ten or eleven names). The defendant defends the taking and imprisonment and all, word for word, etc. " But because all the aforesaid witnesses testify that they saw the horse in the seisin of Richard and in the harrow of the Earl, and this was done at Stamford market," the defendant had his day for judgment. The author of the note-book has a memorandum on the margin at this case : Nota quod ea qua manifesto, sunt noti indigent probacione.
