PROCESS OF LAW ; JURY.
6. Trial at nisi prius. Originally, a trial before ajustiee eyre. Afterwards, by Westm. 2, 13 Edw. I. c. 30, before a justice of assize. 3 Shorewood, Blackst. Comm. 353. See NISI PRIUS. At nisi prius there is, gdoerally, only one judge, sometimes more. 3 Chitty, Gen. Pract.39. In the United States„ a trial before a single judge.
Trial by the record. This trial applies to cases where an issue of nul tiel record is joined in any action. If on one side a re cord be asserted to exist, and the opposite party deny its existence under the form of traverse, that there is no such record rem;ain ing in court, as alleged, and issue be joined thereon, this is called an issue of nul tiel record ; and the court awards, in such case, a trial by inspection and examination of the record. Upon this the party affirming its existence is bound to produce it in court on a day given for the purpose, and if be fail to do so judgment is given for his adversary.
T. The trial by record is not only in use when an issue of this kind happens to arise for decision, but it is the only legitimate mode of trying such issue; and the parties cannot put themselves upon the country. Stephen, Plead. 122 ; 2 Shorewood, Blackst. Comm. 330.
Trial by wager of battel. In the old Eng lish la rr, this was a barbarous mode of trying facts, among a rude people, founded on the sum osition that heaven would always inter pose and give the victory to the champions of truth and innocence. This mode of trial was abolished in England as late as the stat. 59 Geo. III. c. 46, A.D. 1818. It never was in force in the United 'States. See 3 Shorewood, Blackst. Comm. 337 ; 1 Hale, Hist. Comm. Law, 188. See a modern case, 1 Barnew. & Ald. 405.
S. Rica by wager of law. This mode of has fallen into complete diause ; but, in point of law, it seems in England to be still competent in most cases to which it anciently applied. The most important and best-esta blished of these cases is the issue of nil debet, arising in action of debt on simple contract, or the issue of non detinet, in an action of detinue. In the declaration in these actions, as in ahnost all others, the plaintiff conclude/ by offering his suit (of which the ancient meaning was followers or witnesses, though the words are now retained as mere form) to prove the truth of his claim. On the other
hand, if the defendant, by a plea of nil debet or non detinet, deny the debt or detention, he may conclude by offering to establish the truth of such plea "against the plaintiff and his suit, in such manner as the court shall direct." Upon this the court awards the wager of law, Coke, Ent. 119 a; Lilly, Ent. 467 ; 3 Chitty, Plead. 479 ; and the form of this proceeding, when so awarded, is that the defendant brings into court with him eleven of his neighbors and for himself makes oath that he does not owe the debt or detain the property alleged ; and then the eleven also swear that they believe him to speak the truth ; and the defendant is then entitled to judgment. 3 Blackstone, Comm. 343 ; Ste phen, Plead. 124. Blackstone compares this roode of trial to the canonical purgation of the catholic clergy, and to the deciaory oath of the civil law. See OATH, DECISORY.
9. Trial by witnesses is a species of trial by witnesses, or per testes,without the interven tion of a jury.
This is the only method of trial known to the civil law, in which the judge is left to form in his own breast his sentence upon the credit of the witnesses examined ; but it is very rarely used in the common law, which prefers the trial by jury in almost every instance.
ln England, when a widow brings a writ of dower and the tenant pleads that the hus band is not dead, this, being looked upon as a dilatory plea, is in favor of the widow, and, for greater expedition allowed to be tried by witnesses examined before the judges ; and so, says Finch, shall no other case in our law. Finch, Law, 423. But Sir Edward Coke mentions others : as, to try whether the ten ant in a real action was duly summoned ; or, the validity of a challenge to a juror : so tbat ' Finch's observation must be confined to the trial of direct and not c,ollateral issues. And, in every case, Sir Edward Coke lays it down that the affirmative must be proved by two witnesses at least. 3 Blackstone, Comm.336.