Note 76 — Chapter VII · Wager of Law.

London vs. Wood, 12 Mod. 669, 679. This opinion of Lord Holt, that wager of law would not lie, unless the debt was a secret debt, is based upon the law, as stated by Sir Edward Coke, for he says: “The reason wherefore, in an action of debt upon a simple contract, the defendant may wage his law, is for that the defendant may satisfy the party in secret, or before witnesses and all the witnesses may die.” (II. Inst, 45.) But of course this same plea of payment would be good, whether the debt arose on contract or in parole, and the same reason would obtain for perpetuating the testimony, and this illustrates how an erroneous custom will live upon irrational doctrines.