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distinction between our attorneys at law, and the proctors of the Roman law. Denton v. Noyes, 6 Johns. Rep. N. Y. 302. et seq.
Til. XI. De satisdutionibus, p. 360. Dig. 46. 7. 9. and 46. 7. 20. Dig. 2. 8. The securities or cautions judicially required, are, jndicio sisti: to attend and appear during pendency of the suit. Derato: to confirm the acts of his attorney or proctor. Judicium sold: to pay tho sum adjudged against him.
These were taken cither by sureties, Cautso fide jussoria. By deposit, Cautio pignoratitia. By oath, juratoria: and in some cases by bare promise only, nudi promissoria. See an useful book, Hall's admiralty practice. p. 13.
The plaintiff also is required, by the civil law generally, to find caution, to prosecute the suit; to pay costs if the judgment be against him, and to confirm the acts of his attorney; See Nov. 33. 1. and 2. Nov. 96. 2. Nov. 112. 2 and Edict. 7. Justiniani.
Tit. XII. De perpetuis et iemporalibus actiom'bus, p. 363.
Perpetuo solere. As to the English acts of limitation, see Co. Litt. 118. a. 2 Co. Inst. 94, 95. 32 Hen. 8 ch. 2. 21 Ja. 1 ch. 16. Generally in England this act must be pleaded: in New-York the limitation act may be given in evidence under the general issue and notice. In Pennsylvania, it is pleaded, except in ejectment.
Constitut ombus introductum. Cod. 7. 39. 4 and 5. Cod. [ *64S ] 7. 40. Dig. 5. 5.
$ 1. De actionibus qvee in hecredes transennt vel von. p. 364.
In England, and generally in America, Actio personalis morilur eum persona. This ought not to be the case in several kinds of action, as battery, mayhem, seduction &c. Under the Roman law, actions for torts descended to the heirs, but did not survive against the heirs. Dig. 50. 16. 38. Dig. 2. 10. 1. Dig. 4. 7. 4. and 5.
Tit. X. De exceptionibus, p. 365. This is a general view of what may be called the special pleading of the Roman law.
§ 6. De cceleris exceplionibus, p. 367. Exlatioribus d'gestorum libris. Dig. 4. 1.
§ 10. De dilatoriis, p. 868. Subjacere cencemvs. Neither the constitution of Zeno or of Justinian here referred to. is extant.
$ 11. De dilatoriis cx persona, p. c69. Fleas in abatement.
Tit XIV. De replicationibus, p. 370. Rejoinders, surrejoinders, rebutters, surrebutters.
$ 4. Quce exceptiones fide-jussoribus pro sunt vel non, p. 371.
See ante Inst. 3. 21. de fidc-jussordvs: and Inst. 4. 13. 3.
Ou the subject of mutuality between principal and surety, see exparte Gifford, 6 Vez. 805. and Wright tr. Morely, 11 Vez. 12. 22.
Tit. XV. De interdictis, p. 372. Interdicts are now out of use.
There is no difference between iuterdicts and actions. See the 8th section of this title.
$ 3. De interdict is adipiscendor, p. 347. The Salvian interdict was drawn up by Salvias Juliauus at the order of the emperor AdrianDig. 43. 33.
$ 4. De interdklis retinendat, p. 374. This section advances the common legal maxim of our law, in cequali jure, melior est conditio possidentis.
Uli possidetis. Dig. 43. 17. Ulp. Lib. 63. Cod. 8. 6.
$ 6. De iiUcrdicto rcciiperandce, p. 377. Sed ex constitiUionibits. Cod. 8. 4. Tenenlur lege Julia. Dig. 43. 16. Dig. 47. L Tit. X VI. De poena temere litigantium, p. 379. $ 1. De j-irejurando et poena pecuniar ia, p. 379.
This includes our Pennsylvania practice, of an affidavit of defence, an affidavit that a certiorari is not taken out for the purpose of delay <fcc. The ancient action of calumny, was similar to our action on the case for malicious prosecution. As to amerciament in respect of suits, misericordia, and the capiatvr pro fine of the English practice, see Serjeant
Williams's note 1. to Mortlake v. Charlton, 2 Saund. 193. [ *649 ] *Ex constitulione.] The oath of calumny was in use long before the reign of Justinian, as appears from many passages in the digests; ff. 10. t. 2. l. 44. ff. 12. t. 2. I1. 16. 34. ff. 39. t. 2. I. 13. -§, 3. Qui damni infecti caveri sibi postulat, prius de cahimnia
jurare debtt. And in section 4 of the same book are these words Si
alieno nomine careri mihi daiKni infecti poslidem, jurare debeo, Non CalUmny CAUSA ID EtTM, CUJUS NOMINE CAUTUM POSTULO, FUISSE PCSTULATOKUJI
But the oath seems afterwards to have fallen into desuetude, and to have been ouIy revived by the constitution referred to; part of which is conceived in the following terms. Actor quidem jurat, Non Calum
NlANDI ANIMO LITEM SE MOVISSE SED .«STIMANDO - BONAM CAUSA HABERE.
liens autein non alitor suis a/legationibus ututur, nisi prius et ipse jitraveril;—Quod, Putans Se Bona In3tantia Uti, Ad Keluctandjm PrsveNerit. Cod. 2. t. 59. l. 2.
The canon law permits even a proctor to swear in animan domini sni, vid. decret. Greg. ix. lib. 2. t. 7. And this was formerly the practice in all the ecclesiastical courts in England, vid. ord. judii icivm. tit 99. and 110.—canon 132.—But the oath of calumny is now disurcd i;ot only in England, but also in those countries, where the canon law is in full force, and where the civil law is the law of the laud, vid. I.a jurisprudence da Code conferee avec les ordnances Rrjiux de France, torn.
1. p. 297 Groenw. de U. abr. in Atam. inst. t 16.—Phtliberii Bugni
on IL abr. fractal us lib. 1 cap. 3. Harris.
Alia nostra constitutions.] vid. Cod. 3. t. 2. l. 14. et novellam. Patroni autem causarum, (Sec. Harris.
$ 2. De infamia, p. 380. Ignominiosi fiunt, Dig. 3. 2. Cod. 2. 12.
Non contraris actionibus. Nam in contrariis judiciis de dolo out perJidia non agitur; sed lantvm cfe calculo et suppulatione ejus, quod contrario judicio agenti abest. Vinn.
Pennsylvania, to the infinite disgrace of her jurisprudence, makes no difference between a debtor on account of crime, and a debtor on account of contract: under the insolvent laws, a convicted criminal is permitted to defraud the officers of court of their fees; and though in jail for damages, given for the most atrocious injuries to person or character, this is no bar to his deliverance. Under the practice of the insolvent laws of this state, they appear to be enacted for the protection of criminals, and swindlers, as the favourites of the legislature: and this, under the notion, that all imprisonment on account of pecuniary obligation, is contrary to the mild character required in the laws of a democracy.
*§ 3. De in jus vocando, p. 381. Dig. 2. 4. Cod. 2. 2. [ *650 ] Til. XVII. De officio Judicis, p. 382.
§ 4. Familice erciscimdce, p. 384. This isVir suit by writ of partition. See acts of assembly of Pennsylvania digested by Purdon tit. Partition, and Walker v. Dilworth et al. 2 Dall. 257. and M'Kee et al. v. Straub et al. 2 Binn. 1. by which it was settled that 8 and 9 W. 3 ch. 31. concerning partitions, does not extend to this state.
$ 6. Finium regnndorum, p. 385.
Si finium regundorum] The writs de perambulations faciendo, and de rationalibus divisis, are ofthe same use in the law of England, as the judicium finium regundorum in the Roman law.
The writ de perambulatione lies, when two lordships are near each other, and some encroachment hath been made; for then, by assent of' both lords, the sheriff shall take with him the parties and their neighbours, and shall make perambulation, and fix the bounds, as they were before. But, if one lord encroaches upon another, and will not agree to a perambulation, the party aggrieved shall have the writ rationalibus divisis against the other. vid. Terms de la ley, and Fitzherbert's nat. brev. p. 303. 809. Harris.
Tit. X VIII. De publicis Judiciis p. 386.
$ 3. Exempla. De lasa majestate, p. 387.
Lex Julia magistratis.) v. d. ff. 48. t. 4. and Calvin's lexicon juridicum.
In England the stated judgment for high treason, in all cases except counterfeiting the coin, is, that the offender shall be drawn to the place of execution, and there hanged by the neck and cut down alive; that his entrails shall be taken out and burned, his head cut off, his body quartered, and his head and quarters put up, where the king shall direct. The judgment in the case of a woman is, "that she shall be drawn and burned."
In this judgment is implied, the forfeiture of all the offender's manors, lands, tenements, and hereditaments: his wife loses her dower: his children become base and ignoble: he loses his posterity; for his blood is stained and corrupted. All his goods and chattels are likewise forfeited. 3 Co. Inst. 200, 211. Strahan's Domat. supp. Hale's pi. of the crown, 268. Harris.
$ 4. De adulteriis, p. 387.
Lex Julia vid. ff. 48. t. 5. ad legem Juliam de adulteriis coercendis.
Gladio punit.] In England, and most other countries at this day, adulterers are punished by fine.
Cum masculis nefandum libidinem.] The crime here meant is buggery or sodomy; under which words all unnatural carnal cop[ *651 ] ulations are *to be understood. The ancient English lawyers all agree, that it ought to be punished' with death, ultimo svpplicio; though they differ, as to the manner of inflicting it. Britton say, that Sodomites and miscreants shall be burned :—Fleta writes, that they shall be buried alive; pecorantes el sodomita in terra vivi confodiantur—The author of the mirror also delivers himself much to the same purpose; and adds, that Sodomie est crime de majeslie vers le roy celester. At this day by 25 Hen. 8. cap. 6. and 5 Eliz. 17. the committers of this crime, whether male or female, are no otherwise punishable, than as common felons, who are denied the benefit of the clergy. 3 Co. Inst. cap. 10. Hawk. pi. of the crown, lib. 1 cap. 4. But it was doubted by some of the judges in the 4th year of Geo. 1. (though with little reason according to Fortescue) whether a man, indicted for buggery with a woman, could legally be convicted upon the above mentioned statute of 25 H. 8. See the King v. Wiseman, Fortescue's Repts. 91. Harris.
See the notes of 8 Gibb. R. Hist. 19.
Stuprvm. In Dean v. Peel, 5 East, 45. it was decided, that a father could not have per quod servitium amisit, if his daughter, though a minor lived at the time of the seduction in another person's family but returned to her father who maintained her. This is something like a sacrifice of justice to form.
$ 5. Lex Cornelia de sicariis, p. 387. vid. ff. 48. t. 8. ad legem Corneliam de sicariis ct vencficis.
Venefici capite damnatur.] In England, all persons suspected of conjuration, witchcraft, or inchantments, were anciently cited into the spiritual eourts, where, if they were found guilty, sentence was pronounced; upon which the aid of the secular power was demanded by the ecclesiastical judjge, and the supposed delinquents were burned, as hereties, by virtue of the writ de harctico comburendo; which was taken away by the 29th of Charles the 2d, cap. 9. Vid. 3 Co. Inst. 44, 45.
Thus the ecclesiastical judges had the entire jurisdiction in respect to sorceries and enchantments, which were all ranked under the general term heresies, till the statute of the 33 H. 8. which was the first statute, by which any of these offences were made felony: but this act was repealed by the 1st. of Edward VI. cap. 12.
Conjuration and the invocation of wicked spirits were afterwards made felony by 5 Eiiz. cap. 16. And again, by a statute in the first year of James the first, by which the 5th of Eliz. is repealed. The 1st of Jac. 1. cap. 12. is to the following purport. "That the act of 5 Eliz. against conjurations, inchantments, and
"witchcrafts, be utterly repealed That if any person or
"persons *shall use, practice, or exercise any invocation or [ *652 ]
"conjuration of any evil and wicked spirit; or shall consult,
"covenant with, entertain, employ, feed or reward any evil and wicked
"spirit, to and for any intent or purpose; or take up any dead man,
"woman or child, out of his, her, or their grave, or any other place, "where the dead body resteth, or the skin, bone, or any other part of "any dead person, to be employed in any manner of witchcraft, inchant"ment, charm or sorcery, whereby any person shall be killed, destroy"ed, wasted, consumed, pined or lamed in his or her body, or any part "thereof; that then every such offender, or offenders, their aiders, "abettors, and counsellors being guilty of any of the said offences, duly "and lawfully convicted, shall suffer pains of death, as a felon or felons, "and shall lose the benefit of clergy and sanctuary.
i: And further, to the intent that all manner of practice, use or exer"cise of witchcraft, inchantmeat, charm or sorcery, should be from "henceforth utterly abolished, be it enacted, that, if any person or per"sons, shall from and after the feast of St Michael next coming, take "upon him or them by witchcraft, inchantment, charm or sorcery, to '■' tell or declare in what place any treasure might be found, or where "goods, or things lost or stolen, should be found, or to the intent to pro"voke any person to unlawful love; or whereby any cattle or goods of "any person, shall be destroyed, wasted or impaired; or to hurt or de"stroy any person in his or her body, although the same be not effected; "that then all persons, so offending, and being convicted, shall suffer a "year's imprisonment, and stand in the pillory once every quarter for "six hours, and there openly confess his or her error, and offence." The second offence is felony. 1 Jac. 1. cap. 12.