The last recorded case wherein this old defense was attempted in England was in the year 1824, in the case of King vs. Williams,[80] but as Professor Thayer observes, in his “Older Modes of Trials,”[81] the wager of law at this time was “a discredited stranger, ill considered.” This was an action of debt, upon a simple contract, a case wherein the wager of law clearly applied, under the old practice. The defendant pleaded “_nil debet per legem_.” Counselor Langslow appeared for the defendant and after filing this plea, asked the court to assign the number of compurgators, for the reason that “The books leave it doubtful and this species of defense is not often heard of now.” This requested rule, to assign the number of compurgators to the defendant was refused by Abbot, C. J., who observed: “The court will not give the defendant any assistance in this matter. He must bring such number of compurgators as he shall be advised are sufficient.” This, upon the theory that everyone is presumed to know the law and that the court would not assist a litigant in the perpetration of a wrongful act, although it might be presented in the robe of regularity, was good enough. But according to the ancient report of this case, even as Banquo’s ghost dispelled the banqueters, when it was apparent to Macbeth’s fervid imagination, so this recourse to the old obsolete wager of law, which allowed an adversary with his friends to swear his opponent out of court, caused the plaintiff in this case to abandon his cause, for we are advised that: “The defendant prepared to bring eleven compurgators, but the plaintiff abandoned the action.”[82] Wager of law was several times invoked in the courts of the United States and we find that the Supreme Court considered the nature and limitations of the practice, as late as the year 1823, in the case of Childress, plaintiff in error, vs. Emory and McCleur,[83] wherein Mr. Webster, attorney for the plaintiff in error, in a suit on a note, urged before the court that “The wager of law has ceased, but many rules of practice and pleading, founded upon it, have survived, and have become rules of property, which cannot be now safely disturbed.... On the English law, it is clear that debt cannot be maintained in this case, as the testator might have _waged his law_, which none can do who defend in a representative character; hence it is that in the case of simple contracts, debt has been superceded by the action of assumpsit, in which, as the testator could not have _waged his law_, his executor is not deprived of any defense which might have been used by the testator.” To this argument, Mr. Hoffman, for the defendant in error, argued, _contra_, that: