62 HARVARD LAW REVIEW. as if they were unfamiliar. I give this in a note. 1 At the end of it all: "Per Northey (plaintiff's counsel), this will be a reason for extending indebitatus assumpsits further than before. Holt, C. J. We will carry them no further." In the next case where, in a similar matter two or three years later, the court refused wager of law in debt on a by-law, Holt, C. J., said that the plaintiffs counsel yielded too much in the Glaziers Case : " It was a gudgeon swallowed, and so it passed without observation." In 1 70 1-2 came a great case, 2 where, in debt on a city by-law, for a penalty for refusing to serve as sheriff, the defendant offered to make his law with six freemen of the city, according to the custom of London. The plaintiff demurred. Much that was futile was said of wager of law. We are told by Baron Hatsell 3 that it lies only " in respect of the weakness and inconsiderable- ness of the plaintiff's . . . cause of demand ... in five cases: first, in debt on simple contract, which is the common case; secondly, in debt upon an award upon a parol submission; thirdly, in an account against a receiver; . . . fourthly, in detinue ; . . . fifthly, in an amerciament in a court baron or other inferior courts not of record." Holt rationalized the matter in a different way: 4 "This is the right difference, and not that which is made in the actions, viz., that it lies in one sort of action and not in another; but the true difference is when it is grounded on the defendant's wrong; ... for if debt be brought and . . . the foundation of the action is the wrong of the defendant, wager of law will not lie." And again, 5 " The secrecy of the contract which raises the debt is the reason of the wager of law ; but if the debt arise from a contract that is notorious, there shall be no wager of law." 1 " The defendant was set at the right corner of the bar, without the bar, and the secondary asked him if he was ready to wage his law. He answered yes ; then he laid his hand upon the book, and then the plaintiff was called ; and a question thereupon arose whether the plaintiff was demandable ? And a diversity taken where he perfects his law instanter, and where a day is given in the same term, and when in another term. As to the last, they held he was demandable, whether the day given was in the same term or another. Then the court admonished him, and also his compurgators, which they regarded not so much as to desist from it ; accordingly, the defendant was sworn, that he owed not the money modoet forma, as the plaintiff had declared, nor any penny thereof. Then his compurgators standing behind him, were called over, and each held up his right hand, and then laid their hands upon the book and swore, that they believed what the defendant swore was true." 2 London v. Wood, 12 Mod. 669. 8 lb., p. 669-70. * lb., p. 677. 6 lb., p. 679.
