so troublesome, that at length Anastasius dispensed with the fiduciary sale, and Justinian abolished the ceremony altogether, Cod. 8. 49. 6.

De nepote nato post filium emancipatum, p. 37. By the civil law, second marriages were discountenanced, but not fordidden. A widow was obliged to wear mourning for her husband ten months, which was the extent of the year under Romulus. Ovid. Fast. I. 27. The year was extended by Numa to 12 months. Plut. in Vit. But the prohibition in cases of widowhood extended only to 10 months notwithstanding; that being the period in which it was supposed a posthumous child might be born: Ov. Fast. I. 33. By the constitutions however of several emperors (Gratianus, Valentinian, Theodosius, &c.) widowhood was extended to the year, and if a widow married infra annum luctus, she lost her share of her husband's effects, Cod. 5. 9. unless in case of a dispensation from the Emperor, Dig. 3. 2. 10. But widows were not compellable to mourn for their husbands: that is as I understand it, not to wear mourning, or to go through any forms or ceremonies for that purpose, Dig. 3. 2. 9. the prohibition of marriage under the stated penalties continued nevertheless. The year of mourning, was also the time adopted before the conquest, Co. Litt. 8. a. and by the Saxons: Leges Anglo-Sax. Wilk. 109. 122. 144. But there is no prohibition of marriage to widows at any time after their husband's decease, either by the divine law, the canon law, or the present law of England. 2 Burn Ecc. law, 416.

As to the law in favour of the heir, providing against a spurious posthumous offspring, De ventre in possessionem mittendo, et curatore ejus, see Dig. 27. 9. As to the English law de ventre inspiciendo, and the time at which a child may be born after access by the English law, to wit, forty weeks, it is fully discussed in Co. Litt. 123. and the notes of the editor thereupon.

$10. An parentes cogi possunt, &c. p. 37. Emancipation might be compelled by the son, 1st on account of improper severity on part of the father: 2dly If the father ordered the son to do any indecent act: or 3dly If he refused proper nourishment. Dig. 1. 7. 32. Dig. 35. 1. 50. Dig. 37. 12. 5. Cod. 1. 4. 12.

*And a father might force his son to be emancipated in all [ *444 ] cases which would justify disinherison. Dig. 45. 1. 132. with the commentary of Bart. and Mynsych.

Lib. 13. De Tutelis. p. 37. Males under 14, and females under 12, (impuberes) were Pupills and under Tutors. Minors under 25 (which was adult age by the civil law) were under Curators: even though the males were Patres familias. The father's power extended throughout adult age.

The English law respecting guardians (which does not like the civil

law, appoint Curators for minors as a separate office) may be found fully and learnedly discussed in Co. Litt. 85 to 90. with Hargreave's notes. $3. Quibus testamento tutor datur, p. 38. Tutores dare, Because after puberty, curators only can be appointed.

$5. De emancipatis, p. 39. Because the father having exercised his judgment and discretion, it is deemed evidence of sufficiency. So in England it will require a strong case to authorize the appointment of a receiver against an executor, which however is sometimes done, see 12 Vez. 4 Anonymous. and 13 Vez. 266. Middleton v. Dodswell, and the cases there cited. The first of these, determines, that poverty alone is not a sufficient ground to authorize the appointment of a receiver over

an executor.

Tit. 14. Qui tutores, &c. p. 39. This seems contrary to the rule, Dig. 48. 5. 21. by which those who are in the power of another cannot have others under their power. But this must be understood of the same kind of power. A filius familias under the power of his father, cannot at the same time have parental authority: but other kinds of authority he may have. It may be enquired, if the son of a family, may be appointed, where is the security, for the faithful discharge of his duty? Answer: 1st, the effects of the filius familias, are always bound. 2dly, If the father assent to the tutelage, undertaken by the son, the father is bound. Dig. 26. 1. 7. and 26. 7. 21. 3dly. If the law casts the tutelage, security is required: if it be conferred by testament the testator is deemed a competent judge, in a case, where he is so much concerned on account of his children. Women could not be appointed, except mothers and grand-mothers by special rescript. Dig. 26. 1. 18. Cod. 5. 35. 2, and Nov. 118. 5. In England women may be appointed.

§ 5. De tutore dato. See Dig. 26. 2. 6. It is an established rule that words are to be understood in their common and obvious

[ *445 ] meaning, *unless the context absolutely requires another. Dig. 50. 16. 201. Dig. 14. 6. 14. Dig. 23. 2. 59.

This section of Justinian, is referred to by Foster Justice, in Rex v. Taunton, St. Mary Magdalen, cited 4 Term. Rep. 798. Whether child includes grand-children, must depend upon the context: it does not appear to me that there is any rule precisely settled about it. In Wythe v. Thurlston, Amb. 555. Hussey v. Dillon, Ib. 604, and Gall v. Bennet, Ib. 681. bequest to child, was held to include grand-child. But in Cooke v. Brooking 2 Vern. 107. where there was a child and several grand-children, the latter were held not to fall under the term of the bequest. The King v. Taunton, St. Mary Magdalen, which was a case under the certificate act relating to the settlement of paupers, Burr. 402, was set aside by Lord Kenyon, in the King v. the inhabitants of Dar

lington, 4 Term Rep. 799. and in Radcliffe, and Buckley, where the modern cases are considered, 10 Vez. 195: it is there decided that under a bequest to children, grand-children are not entitled unless the will would be inoperative without them; a point before determined by Lord Alvanley in Reeves v. Brymer, 4 Vez. 698.

The other cases relating to the construction of words of this class, in a devise are collected by Roper on Legacies, 8 et seq. and in 6 Cruise on real property, 183, 187.

Tit. 15. 1. Qui sunt agnati. Agnati, relations by the male side: Cognati, by the female side. Change of civil condition might destroy agnation, Dig. 26. 4. 7. and L. 4. ult. Cod. de leg. tut. Dig. 38. 10. 10. 2. Dig. 38. 16. 2. 1. The difference between agnati and cognati was done away by Justinian Nov. 118. 4. 5.

By a law of the twelve tables, if a man died intestate without children, the law cast the inheritance upon the agnati. If he left a child, the agnati were called to the tutelage by operation also of law; for the Romans were of opinion the next heir to the pupil was the properest person to take care of the estate, being most interested in it. By a law of Solon, the next in succession was excluded from the tutelage, from suspicion that the pupil was not safe under his care. So by the English law, guardian in socage must be next of blood who cannot inherit. Co. Litt. 88. A hard rule. Dormer's case, 2 P. W. 263. Tit. 19. De fiduciaria Tutela, p. 46. Perfectæ sint ætatis. That is 25 years of age.

Age has been well enough divided into

According to modern notions however, youth can hardly be extended to fifty. Yet I recollect that Julius Cæsar at the age of fifty, is some where called rεavianos a young man. The ancients seem to have extendcd the nominal period of youth longer than the moderns, thus Aristotle regards the age of 37 as the proper time for a man to marry.

The different privileges of different ages by the law of England, is well expressed by Blackstone in his Commentaries. "The MALE at 12 may take the oath of Allegiance: at fourteen is at years of discretion, and may therefore consent or disagree to marriage; may choose his Guardian, and if his discretion be actually proved, may make his testament of his personal estate; at seventeen may be an executor; and at twenty-one is at his own disposal, and may aliene his lands, goods and

chattels. A FEMALE, also at seven years may be betrothed or given in marriage; at nine is entitled to Dower; at twelve is at years of maturity, and therefore may consent or disagree to marriage; and if proved to have sufficient discretion may bequeath her personal estate; at fourteen is at years of legal discretion, and may choose a Guardian; at seventeen may be executrix; and at twenty-one may dispose of herself and her lands; so that the full age in male and female is 21 years; which age is completed on the day preceding the anniversary of a person's birth, who till that time is an Infant, and so styled in law."

Minority by the French Code, extends also to the age of 21 years. I confess this appears to me a period upon the whole too early to put a young man in possession of all the rights belonging to adult age. Still more objectionable are the privileges given by the English law to intervening ages; as that a boy and a girl of 14 and 12 may consent to marriage; which however is the regulation of the civil law also.

The French provisions as to minority; tutelage, and emancipation are to be found in the 11th law or title, of the code Napoleon.

Tit. 20. De Atiliano Tutore, &c. 47. The law Attilia was a plebis. cite passed 444. U. C. of the law Julia and Titia there is no certain account. This legal appointment of a Tutor, is somewhat like the appointment of Guardians by application to the Court of Chancery, Ab. ca. in Eq. 260: and the like practice obtains in Pennsylvania. It took place either when there was no legal, or no testamentary tutor, or when the latter had only conditional and qualified powers, or wished to be excused for good reasons, or suffered a change of state, or if [ *447 ] the *tutor died, or if he or the pupil were taken captive. Marcus Aurelius appointed two Prætors, whose sole occupation was the appointment of tutors. Capitolin. in Divo Marco ch. 10. But I apprehend, this was in defect not only of testamentary tutors, but where in cases of intestacy the Tutela legitima did not take place for want of a near agnate on whom it should fall by law.

§ 7. De Tutelæ ratione reddenda. By the civil law, an action of Tutelage could not be sustained till the Tutelage expired. Dig. 27. 3. 4. But in England a minor may oblige his guardian to account by pro

chein ami.

Tit. 21. In quibus causis auctoritas sit necessaria, p. 49.

The general rules of the Civil law and of the English law for the protection of Infants, proceed on the same obvious principle, that no one shall be permitted to take advantage of the want of experience to which an infant is necessarily subject. But the English law or rather the feudal law, certainly goes to the utmost verge of reason and justice, when it stops the progress of a suit wherein a minor is a party and claims by descent, or defends in debt as heir, by suffering the parol to demur until

the minor arrive at full age. This was unknown to the civil law where the guardian (whether tutor or curator) might conduct the cause-where a curator might be appointed compulsorily for the management of a suit on behalf of an infant-and where the infant when of age had a remedy against his tutor for fraud or negligence, and a minor had the same right of suing his curator even during his minority. This indeed is the case in England, where also the Guardian may be sued by prochein ami, See 14. Vin. Ab. 198. 2. Cro. 640. Simpson and Simpson v. Jackson, wherein it was determined that an infant may sue by prochein ami, but must defend by guardian. The same right of suit in favour of infants obtains in this country also. See Parsons v. Mills et al. 2 Massach. Rep. 80.

I apprehend that strictly, the law of Pennsylvania, will admit the parol to demur in the same cases with the English law. For although in suits where an infant is defendant and no guardian appointed, the court on motion will appoint the clerk of the court, or any indifferent person a Guardian pro lite, yet this no more interferes with the law respecting the parol demurring, than the same practice in England under Shipman and Stevens, 2 Wils. 50. Moreover, I apprehend the general law of England on this head, is judicially recognized in Pennsylvania, as the judges of the supreme court have adopted one of the exceptions to it, to wit, 6 Edw. 1 ch. 2: but they have not noticed. *another, viz. the stat. of west. 1st: 3 Edw. 1 ch. 46. See 3 [*448 ] Binn. 601. 662. app.

Even by the old law, the parol did not demur, in dower, or quare impedit, or waste, where the remedy was required to be speedy, nor in partition, where no title was involved: and until the act of assembly of Pennsylvania, giving new form and substance to the action of ejectment, it might have been doubted, whether any suit in this state could arise, wherein the question could be made whether the parol should demur. But now by act of 21 March, 1806, the action of ejectment is so formed, that it differs only from a real action, in as much as one verdict is not conclusive.

As to the appointment of guardians pro lite, it might be made a question whether the laws establishing the orphan's court enable the bench there to appoint compulsorily a guardian pro lite to appear in another court, and whether any other court has power to appoint to such a guardian. But the practice seems to authorize it.

With respect to the other states, I am not able to give precise information on this head.

ch. 98.

In Virginia indeed, it is declared by an express law of 1797, that the parol shall not demur in any suit on account of infancy. 3