1824. KING V. WILLIAMS. THIS was an action of debt on simple contract. Plea, Friday, January 23. To debt on simple con tract, the de nil debet per legem, and issue thereon. A day having been fixed by the Master for the defendant to appear in court fendant pleadwith his compurgators, to wage his law, but without ed❝nil debet per legem," mentioning what number he should bring for that purpose, and applied to the Court to assign the number of compurgators law, but the Court refused to interfere. Langslow now applied to the Court to assign the proper necessary number. The books leave it uncertain what number of compurgators are necessary in this unusual mode of de- to wage his fence. Some say that seven are necessary; and others, that six are sufficient; but the court, in the exercise of its discretion, will assign the least possible number, for the purpose of saving expense to the parties. In Les Termes de la Ley, 442, it is said, "Mes quant un gagera son ley, il amesnera ovesque lui 6, 8, or 12 de ses vicines come le court lui assignera de jurer ovesque lui." That book is attributed, by Lord Coke, to Rastall, and is spoken of by him, as one of high authority, in the preface to his 10th. Report. [Bayley, J. I believe Blackstone lays it down that eleven are necessary.] He certainly does (a), and cites Co. Litt. 295. and the Year Book, 33 H. 6. 8. for what is there laid down; but those authorities do not bear him out. In Fleta, b. 2. c. 63. the rule seems to be, that the number of the compurgators shall be double the number of the secta produced by the plaintiff; and in the Year Book, 33 H. 6. 8. it is said, that the defendant "jurabit duodecimâ manu." According to the former doctrine, the number must be fluctuating and uncertain, and the fair construction of the latter expression would be six, and not twelve. In 2 Ventris, 171. it is declared, that fewer than eleven are suffi cient; and in Style's Practical Register, 572, it is said, that (a) 3 Comm. 343. 1824. KING v. "he that is to wage the law must do it duodenâ manu, viz. he must bring six compurgators with him; the defendant then swears de fidelitate, the compurgators, de credulitate." It WILLIAMS. is true that this mode of defence is not very frequently resorted to, but still the Court will recognize it as lawful; for in Barry v. Robinson (a), when the counsel, in arguing that case, said, that the wager of law had long since fallen into disuse, and that if a man were now to tender his wager of law, the Court would refuse to allow it, and would put him to plead to the action, the reporter says, "this was denied by the Court." ABBOTT, C. J.-We think this is a case in which the Court ought not to interfere in any way. The defendant must produce the number of compurgators which the law requires, but that he must find out, as he may be advised. We shall make no order upon the subject. He must bring the proper number. BAYLEY, J.-We do not relieve you from bringing theffull number which the law requires; but what that number is, you must find out. We are not to say what the proper number is. If the plaintiff is not satisfied with the number brought, he may object, and then the matter may be further considered. Langslow submitted that six would be sufficient. ABBOTT, C. J.—To give any opinion, would be doing something; we propose to do nothing; we leave you to find your own way. Nothing was taken by the motion. The defendant prepared to bring eleven compurgators; but the action was afterwards abandoned. (a) 1 N. R. 297. 1824. HULKE V. PICKERING. ABRAHAM having obtained a rule nisi for entering Monday, January 26. The affidavit in support of up judgment on a warrant of attorney more than twenty a rule nisi for years old, entering up judgment on a warrant of at shew affirma mains unsatis F. Pollock now shewed for cause, that the affidavit on torney more than twenty which the rule nisi was obtained did not state any circum- years old, must stances from which the court could infer that the money tively that the remained due. The general rule of law, that after an debt still reinterval of twenty years, payment must be presumed, extends to warrants of attorney as well as to other securities, and therefore, in the absence of any facts to rebut the presumption of payment in the present case, the Court will discharge this rule. Abraham contrà, insisted that the onus lay on the other side to shew in answer to the application that the money had been paid. No precedent could be found in any of the books of practice, of an affidavit setting out circumstances to shew that a warrant of attorney remained unsatisfied. If it had been satisfied, it was in the power of the opposite party to prove that fact. ABBOTT, C. J.-The reason for granting a rule nisi to enter up judgment on a warrant of attorney more than twenty years old, is, that the party may have an opportunity of shewing cause for any irregularity in the proceedings, and that he may not be taken by surprise by an immediate execution after the lapse of so great a length of time. It is a rule of practice, founded in convenience, that if a party delays to enter up his judgment so long, it must be presumed that the debt is satisfied, unless the plaintiff lays before the court something to shew the contrary. In a case of this nature, I think there ought to be some reason assigned for the fied. 1824. HULKE v. PICKERING. delay, and that it should distinctly appear that the debt remains unsatisfied; the plaintiff should, at least, do something to repel the presumption of payment. This is a demand of more than twenty years standing, and I cannot say that the same doctrine of presumption applicable to other securities ought not to prevail in this instance. The affidavit is in the common form. It does not import that the money is now due, and therefore, after so long an interval, the common form of affidavit is insufficient. HOLROYD, (a) J.-The object of granting a rule nisi would be defeated if the affidavit in this case were deemed sufficient. Where a warrant of attorney is more than twenty years old, that shews something extraordinary and out of the usual course, and therefore it is necessary that the plaintiff should depart from the common form, and explain the reason of his delay. It lies upon the plaintiff to shew affirmatively that the debt is still due, in order to rebut the legal presumption of payment. BEST, J. Concurred. The COURT, however, gave the plaintiff leave to amend his affidavit, with directions that it be shewn to the other side, and a proper affidavit being afterwards made, the Rule was made absolute. (a) Bayley, J. was absent. (b) See Tidd, 578. 2 Archbold, 16. Tidd's Forms, 153. 1824. LACY and WILTON v. M'NEILE, DICKSON, MONTGOMERY, and PIZEY. ASSUMPSIT for money had and received. Plea, non assumpsit, and issue thereon. At the trial before Abbott, C. J. Co Monday, January 26. A. is indebted to B. and Co. for goods sold, and upon being released the latter debt house of C. mises in the B. and Co. at the London adjourned sittings after last Term, the facts were these:-The plaintiffs were merchants in London, car- from his liabirying on business under the firm of Lacy and Wilton. The lity, assigns to defendants and one Price, were also merchants, carrying on which is due business in London, under the firm of J. M'Neile and to him from C. and Co.; at Buenos Ayres under the firm of M'Neile, Dickson, and notice of the Co., and at Chili under the firm of M'Neile, Price, and assignment is given to a partCo. Price and the present defendants continued partners ner in the in all the three firms, up to the 30th June, 1821, when and Co. who the partnership was dissolved, as to the defendant M'Neile by parol, proonly. The defendant Pizey always resided in London and name of the conducted the partnership business there. In the year 1817, firm to pay the the plaintiffs supplied a Mr. Goodfellow with goods, for the Co. out of the amount of which, he accepted two bills, drawn by them upon funds:-Held partnership him, to their own order, dated 10th October, 1817, one at in an action by nine and the other at twelve months' date, upon each of which the following memorandum was indorsed. "Note. The payment of this bill is secured to J. G. Lacy and D. Wilton, ceived, first, by an assignment from J. Goodfellow of a debt due to him that the profrom Messrs. J. M'Neile and Co., dated 30th March, 1820." within the statute of frauds; These bills being dishonoured, an action was commenced and second, by the plaintiffs against Goodfellow in Hilary Term, 1819, that a promise by one partner in which he was arrested and put in bail. In March, 1820, was sufficient Goodfellow executed a deed of assignment to the plaintiffs, though, as to to bind all, alof all the money due to him from the defendants, and a war- some of the rant of attorney, upon which judgment was afterwards enand the action against him was discontinued, and had been dishis bail discharged. On the 12th April, 1820, a written the promise notice of the assignment was sent to the defendant Pizey, was given. in London, and shortly afterwards he saw the plaintiff's at tered up, against C. and Co. for money had and re mise was not members, the partnership solved before |