“Wager of Battle” – Have We Advanced That Far?

For those legal history buffs out there, I recommend the Court of Appeals recent decision in Thyroff v Nationwide Mut. Ins. Co., 2007 NY Slip Op 02442, which I blogged about in my March 23rd post. The Court reviewed the history of the common law tort of conversion. As the Court reviewed, before the English royal government undertook the prosecution of crime, the rightful ownership of property was determined by a form of action known as “Wager of Battle” (unless the thief was caught in the act, in which case the thief was summarily put to death). The “Wager of Battle” was a physical altercation or duel between the victim and the thief, with the victor taking title to the goods. Overtime, the practice of trial by jury was instituted and repalced “Wager of Battle” as the later became “widely detested” by the populace. I asked myself while reading Thyoff – have we really advance that far? Physical alteraction has its obvious demerits. But it was probably over pretty quickly, the righteous party was probably victorious around 50% of the time, and most physical injuries heal. Today we have replaced physical altercation with a no less combative verbal and procedural altercation, these battles can last years, and is our current system of litigation any less “widely detested” by the populace? In Thyoff, the plaintiff’s property (computer data) was allegedly taken in September 2000.  Mr. Thyoff’s action was commenced in the federal courts, which proceeded to the Second Circuit, and then to the Court of Appeals on a certified question. It is now March 2007, and a jury trial has yet to be held. I wonder – if given a choice would Mr. Thyoff have chosen today’s jury trial system or the more primitive “Wager of Battle?”

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