Definition
"Law of" is an archaic procedural term from English real property litigation. It describes the plea available to a tenant (defendant) in a real action when the writ of summons issued after the original writ was not served within the time required by law. A defendant who successfully pleaded the "law of" could avoid the action on purely procedural grounds — not on the merits — because the plaintiff's process had lapsed or been improperly executed.
The term is vestigial and has no operative meaning in modern practice. It survives only as a historical artifact of the medieval real action system, which was largely abolished in England by the Real Property Limitation Act 1833 and the Common Law Procedure Act 1852, and which never took firm root in American practice.
Common Confusion
"Law of" as a dilatory plea in real actions is easily confused with WAGER OF LAW (compurgation), a method of proof in which a defendant denied liability by oath with the support of oath-helpers. The surface similarity — both involve a party invoking a procedural "law" — obscures a fundamental distinction: wager of law was a mechanism for deciding the merits of a personal action; "law of" was a threshold challenge to defective process in a real action. The confusion is compounded because both terms were archaic by the nineteenth century and both appear in the same stratum of historical pleading literature.
Why It Matters in Research
Researchers encounter "law of" almost exclusively in older English pleading records, abridgments, and treatises addressing the medieval and early modern real action system. Several navigational cautions apply.
First, the phrase "law of" standing alone is a fragment. In original sources it almost always appears as part of a larger construction — "pleaded the law of" or "wager of law" — and confusion with WAGER OF LAW (law gage, compurgation) is a persistent hazard. The two are distinct: wager of law was a method of proof by oath-helpers in personal actions; "law of" as defined here is a dilatory plea in real actions based on defective process. A researcher scanning indexes or digests for either term may pull the wrong headings.
Second, the statutory anchor — 31 Eliz. c. 3, §2 — is the key locator for the procedural rule underlying this plea. Any research into the timing requirements for summons in real actions should begin there. The Saunders reference (2 Saund. 45 c.) points to William Saunders's Reports, a standard annotated reporter for late seventeenth-century common law pleading; the annotations in that edition frequently elaborate on procedural technicalities of exactly this kind.
Third, American sources will rarely use this term at all. Colonial and early American courts largely bypassed the real action system in favor of ejectment fictions, so the plea had little occasion to develop here. Absence from American digests does not mean the concept is irrelevant; it means the researcher must go to English sources.
Fourth, in any corpus of legal materials spanning the sixteenth through nineteenth centuries, "law of" may appear as a typographical or transcription fragment where the original read "wager of law" or "gage of law." Treat isolated occurrences with caution until context confirms the meaning.
Historical Dictionary Support
Rapalje and Lawrence provide the only definition in the Law Mind shelf sources, and it is terse: the plea available when the summons following the original was not served in time, citing 31 Eliz. c. 3, §2 and 2 Saund. 45 c. This is a reliable starting point but leaves several things unstated.
The definition does not explain why the plea was called "law of" — the name reflects the older usage of "law" to mean a procedural right or legal privilege available to a party, a usage common in phrases like "wager of law" and "benefit of law." It also does not situate the plea within the structure of real actions, which proceeded through a series of writs (original, summons, re-summons, attachment) each subject to timing requirements. Failure at any stage could generate distinct procedural pleas.
No other historical dictionary on the Law Mind shelf addresses this term independently. Broader treatises on real property and pleading — Blackstone's Commentaries Book III, Glanvill, and the Fitzherbert and Brooke abridgments — discuss real action procedure in detail but do not isolate "law of" as a standalone headword. Researchers needing fuller treatment should look to the abridgment literature under the headings REAL ACTIONS or SUMMONS rather than expecting a discrete entry.
Jurisdictional Note
This plea was a creature of English common law real action procedure. American jurisdictions never systematically adopted the real action system and have no equivalent procedural history. Research into this term is effectively confined to English sources predating the mid-nineteenth century procedural reforms.