While the reasoning lay, in theory, in the idea of a sacrifice to the gods, its main effect was to discourage frivolous litigation since the sums laid down as wagers were substantial.
This procedure (in full, "legis actio per iudicis arbitrive postulationem", "complaint before the judge or arbiter") was used only in some in personam cases laid down by statute.
Used from around the 3rd century BC for the recovery of a specific thing or specific sum of money (such as from a debtor), it did not require a wager as such, but the parties exchanged promises to the effect that the loser would pay to the winner one third of the sum at issue.
The determination of cases, civil and criminal, by means of wager or analogous forms of procedure, was a characteristic feature of ancient law.
[1] The general prevalence of the wager form of proceeding is perhaps to be attributed to the early conception of a judge as a mere referee who decided the dispute submitted to him, not as an executive officer of the state, but as an arbitrator casually called in (see Maine, Ancient Law, c.
It was an eminently unsatisfactory way of arriving at the merits of a claim, and it is therefore not surprising to find that the policy of the law was in favour of its restriction rather than of its extension.
This led to the general adoption of assumpsit - proceeding originally upon a fictitious averment of a promise by the defendant - as a means of recovering debts.
Another form of judicial wager in use up to 1845 was the feigned issue, by which questions arising in the course of chancery proceedings were sent for trial by jury in a common law court.