be allowed to rest upon it until the contrary appears without effort on his part.

Logically, ther, the rule in Iowa is unsound. Historically, too, it is without foundation. In the leading case to which the authorities refer, the question of the burden of proof was not raised at all; and had it been raised the case would offer no ground for the rule, for the plaintiff's own evidence disclosed his want of care.

But the effect of the rule condemns it more than anything else. It cannot fail to cause hardship to the plaintiff, except in a few cases where all the circumstances attending the injury can be put in evidence. The owner of a threshing machine fails to box the tumbling rods according to law. One of the workmen is caught by the rods and suddenly meets his death. No one sees him at the time of the accident. The wife, bereft of her support, sues for damages. She proves the negligence of the defendant, but nothing can be shown for or against the due care of the deceased. By the rule in Iowa she cannot re

cover.

A merchant in the city makes an excavation for a coal vault in front of his building, and leaves it without a railing. At night a man walks into it and is made a cripple for life. Here, by our rule, the very darkness which increases the danger protects the author of it by cutting off all possibility of showing the conduct of the plaintiff at the time of the injury.

A drunkard lies down in the street. The driver of the horse-car sees the danger in time to stop the car, but carelessly runs over the man. Even in such a case, one court has intimated that the plaintiff could not. support an action without showing that the deceased was in the exercise of ordinary care. This is carrying the rule to an extent which is inhuman, unchristian and unbecoming to our age and civilization.

But let some courts once make a blunder, and they seem bound at all hazards to follow it as a rule in subsequent cases. As tailors follow fashions, with little attention to comfort or good taste, so these courts follow precedents without the exercise of reason or justice.

So long as the rule in question is followed, the courts must either do injustice or put themselves in the absurd position of saying that a man will be deemed to have proved a thing by failing to prove it.

Surely the rule of the Federal courts is by far the bet ter of the two and should prevail.- Western Jurist.

SUPREME COURT OF INDIANA.

STATE v. MORIARTY.

June 21, 1881. Criminal Procedure-Intoxication n Public Place-Indictment. An indictment against defendant for being "found intoxicated in a public street, highway and sidewalk," is sufficient to charge that the offence was committed in a public place.

Defendant was indicted for being found intoxicated "in a public street, highway and sidewalk," and a motion was made to quash the indictment upon the ground thet it did not charge that the offence was committed in a public place. The motion was granted, and the State appealed.

ELLIOTT, J.

The ruling of the court was based upon Williams v. State, 64 Ind. 553, where it was held that, in an indictment for notorious lewdness, it was not sufficient to allege that the unlawful act took place in a public highway. In the case of State v. Waggoner, 52 Ind. 481, a

different doctrine was declared, and it was held that a public highway was a public place. The former case is not sustained by authority, while the latter is well supported. We think that the case of Williams v. State asserts an erroneous doctrine, and it is therefore overruled. Even if the case of Williams v. State should be held to declare the correct rule, we should still be bound to hold the present indictment sufficient. It is charged that the offence was committed "in a public street, highway and sidewalk." A street is, it is true, a highway, but all highways are not streets. Common Council v. Croas, 7 Ind. 9. A street is not only a public highway, over and upon which all the citizens of the land have a right to pass and re-pass at pleasure, but it is a public highway of a city, town, or village. There can be no reasonable presumption that there are secret or secluded places in streets; on the contrary, the presumption is that streets are public thoroughfares, open and free in every part to the public. It is the duty of the municipal authorities to keep them reasonably safe for travel; it is not sufficient to make a part of a street safe for travel; the whole street must be made so. This consideration would of itself preclude the presumption that there may be secluded places in public_streets. Prima facie a public street is a public place. In one case it was said: "A street is pur se public." Carwile v. State, 35 Ala. 392; McCauley v. State, 26 Ib. 135. The term "street" does not mean private ways, nor does it apply to wards or ways owned by private corporations. Wilson v. Allegheny City, 79 Penn. St. 272; Quinn v. Patterson, 27 N. J. L. 35. The indictment, in charging that the offence was committed in a public street, shows at least a prima facie case. The State was not bound to anticipate defences, and negative their existence. If there existed any facts stripping a public street of its ordinary character they should be shown by way of defence. Judgment reversed.

SUPREME COURT.

Judges Johnson, Okey and McIlvaine, of the Supreme Court, were on hand yesterday, to open the court, after the summer vacation.

The court commences its fall labors with a calendar of 1024 on the docket undecided. At the opening of th preser term there were 898 cases on the docket. Thus far the court has disposed of 166 cases. The advance on the docket having been 128.

The court on May 3rd, last, called the docket up to number 175. Numbers up to 120 have been reached for discussion.

1179. Joseph M. Jackson v. Andrews & Hitchcock et al. Error to the District Court of Mahoning County. Moses & Jackson for plaintiff; Anderson & King and T. M. Sanderson for defendants.

1180. A. M. Kuhn, Trustee v. Theodore Nieberg. Error to the District Court of Auglaize County. Marshall & Brotherton for plaintiff; S. R. Mott and F. C. Layton for defendant.

1181. C. C. C. & I. Ry. Co. v. Arthur Nayor. Error to the District of Richland County. Jenner & Tracy and H. H. Poppleton for plaintiff; Ďirlam & Leyman for defendant.

1182. Thomas Hogg v. John Beerman et al. AppealReserved-In the District Court of Ottawa County. E. B. Sadler for plaintiff.

1183. Franklin B. Abbott, Adm'r. v. Peter Wells et al. Error to the District Court of Muskingum County. E. E. Evens and Chas A. Beard for plaintiff.

To this possible relief, long suffering litigants turn with strong hope that it will be speedily created and will be soon at work. At the present rate of filing cases and of disposing of them, the rights of persons wronged, are as effectually buried, and the punishment of those who have committed wrong, as certainly delayed for a long term of years, at least, as though courts of justice were all closed and judges all in a Rip Van Winkle sleep. The parties who filed their cases today, can have but a faint hope that five years hence that case will have been reached, and those who are now in the agony of a common pleas contest cannot hope for a termination of their trouble within a half score of years, if the case should be taken to the highest tribunal of the State!

But the apathy of our law-makers is undisturbed, and our word for it, will remain undisturbed through all the coming session, notwithstanding all this crying need. No impulse can stir the soul of the average law-maker, unless it be a dog law or a law to pay a bounty for the scalps of chip-monks, or bald eagles. They are paralyzed by the fear that if they pass a law giving relief to the people, that their public life will be blasted; that they cannot be re-elected!

The plan submitted last winter, as the best that could be devised, by the State Bar Association, was ignored without a thought, even by the bright intellects which evolved only fortyseven dog laws from their inner consciousness and spread the same upon the broad tablets of solemn enactment.

like powers, &c.," cuts off the first from all that might succeed, and, that therefore, the way is clear for a new commission.

Whether this be true or not, the need of relief is so urgent and the ability of one court to clear the dockets in a thousand years, so utterly out of the question, that a point might be strained and something done. But if the coming legislative body is no better than that of last winter (or a majority of that body we should say, for there were some royal good men therein), the outlook is dreary indeed. We would suggest a day of fasting and prayer that God would move the hearts of the careless ones, and put brains in the pans of the brainless members, of that body, just long enough to get some plan of relief adopted to free the wheels of justice, and oil their long unused and rusting axles. The judges of the Supreme Court are doing all they can to dispose of the cases on the docket, but it is beyond the shadow of a possibility for them ever to clear the docket of its eleven hundred cases, in the face of the vast number of new cases continually coming in.

NEW BOOKS.

Baylies on Sureties and Guarantors. A Treatise on the Rights, Remedies and Liabilities of Sureties and Guarantors, and the application of the Principles of Suretyship to persons other than Sureties, and to property liable as Surety, for the Payment of Money, by Edwin Baylies, Counselor at Law, New York: Baker, Vorhis & Co., 1881. pp 600, $5.00 net.

Mr. Baylies is favorably known to the legal profession by his connection with several other successful books. This, together with the fact that the subject of the book before us is not a hackneyed one, that, in truth, the demand for just such a work has been really pressing for many years, will favorably commend this book to the

The Constitution provides that.

"The General Assembly may, on application of the Supreme Court, duly entered on the journal of the court and certified, provide by law, whenever two-thirds of such, [each] house shall concur therein, from time to time, for the appointment in like manner of a like commission with like powers, jurisdiction and duties; provided, that the term of any such commission shall not exceed two years, nor shall it be created oftener than once in ten years."

But it is claimed that the limitation, one commisson in ten years, does not apply to the commission of 1875. In other words, that the expression "in like manner of a like commission, with

ner in which the questions of guaranty and suretyship is treated, will be found of great value to the practitioner.

Questions involving the laws of guaranty and suretyship have lately arisen with unusual frequency, and have demanded of the courts a reexamination of the principle underlying that law and the decisions upon which that law was based. As the result of this examination, questions, before undetermined or in doubt, have been determined and settled; decisions of doubtful authority have been limited or overruled; and doctrines before resting in the dicta of the judges have in many instances been expressly

The courts have in many cases returned to the theories of the old courts of equity, and hold that the rights of sureties and guarantors are in many instances mere equities, to be regulated, redressed, and determined by the application of equitable principles, and have repudiated the more modern theory of the common law, that such rights rest in implied contract, and are to be measured and determined by the rigid rules of laws.

The preparation of this work has been evidently prosecuted in the belief that a volume which should present clearly the rights, remedies, and liabilities of guarantors and sureties, as declared and defined by the recent statutes and decisions, would be of special value to lawyers throughout the country.

In this the author is not mistaken. The book will be a welcome addition to the library of every practicing lawyer.

The mechanical execution is of course unsurpassed. The name of the publishers is a sufficient guaranty of that fact.

THE HISTORY OF THE DEVELOPMENT OF THE ROMAN LAW AND ITS LITERATURE.

BY ORLANDO W. ALDRICH, LL. D: D. C. L.

In nothing is the originative genius of the Roman people more clearly shown than in their law, and in no other field has the influence of Roman civilization been so widely extended and so durable.

But

In art, philosophy, poetry, and even in relig ion, the Romans had but little originality, and seem to have been but little more than mere copyists from the Greeks, and in oratory they were greatly indebted to the same source. although a few of their first laws may have been copied from the laws of Solon, yet the body of the Roman laws was an indigenous product of the Italian soil, and shows forth the character of the Roman people as a great nation, as it has been shown in no other way. Rome has also had a wider and more lasting influence through her system of laws than through her arms, her arts, science or literature, and though the Roman influence in religion has become widespread and permanent, yet it is very probable that much of that influence may be traced to the effect of the rules of the canon law, of which many of the principles were derived from the civil law. Even when Rome was conquered by the barbarians, they were subdued by her law, and to-day, in nearly every part of the continent of Europe, which formed a part of the old Roman empire, the civil law prevails as the basis of the various

man law is an absolute prerequisite for the practice of the law in nearly all those countries.

While the common law of England is a system sui generis, yet the Roman law has not been without its influence upon the English law. Some of the earliest writers on the English law copied largely from the civil law writers, and the influence of the civil law upon the equity system, and the laws of marriage and probate, can hardly be overestimated. To the lawyer who aspires to a knowledge of jurisprudence and is not contented with being a mere practitioner, the Roman law will always be regarded with interest and he will be specially interested in comparing it in its history and method of developement with the system of English law. I propose in this article to give a short sketch of the historical developement of the Roman law and of its literature to the time of Justinian. The history of the Roman law in its developement naturally divides itself into four periods. The first is from the foundation of the city to the expulsion of the Tarquins. The secoud from the secession of the Plebs, to Mons Sacer, to the time of Augustus. The third from the time of Augustus to the beginning of the reign of Justinian, and the last the reign of Justinian, although a number of constitutions of later date are found in the "Corpus Juris."

The history of the Roman law after the time of Justinian is rather a history of the effect of this law, upon the laws of other nations, than a history of the law itself.

The sources of the history of the Roman law during the first period, are those Greek and Roman historical writers, who treat of the general history of Rome, and we have no remains of any of the early law literature, nor any authors who treat especially upon that subject. The laws of this period were called "leges regiæ," and are quoted by some of the old authors sometimes literally, bnt generally by reference to their meaning. Nearly all were ascribed to Romulus and Numa; but some are said to have been passed by Servius Tullius. Dionysius Halicarnissus mentions it as a fact that Servius Tullius made a collection of those laws, and added some of his owr., but he says that those laws were not only abrogated by Tarquinius Superbus, but that even the tables upon which they were written, were destroyed.

It is related by Livy that in the year 573 U. C., two stone chests were exhumed in the field of Janus, one of which was empty and the other contained seven books written in Latin, on the pontificial law and seven in Greek, on philosophical subjects. These were destroyed by the Prætor, on account of their being opposed to the laws of the pontificial religion, and it is not at all probable that they were genuine. There was a collection of laws of this period which is cited by later writers, and among them Pom ponius who calls it "Jus civile Papirianum, from Papirius who lived in the time of the last Kings, but whether they were really genuine is a very

doubtful question. The laws of that date were chiefly concerned with religious observances and customs, and it is not probable that any of the compilations servived the destruction of the city by the Gauls, and while the Pontiffs may have preserved the usages and customs, and may have. been able to give the substance of those laws, yet it is not at all likely that the laws were preserved in their original form.

The second period which may be said to commence about the time of the first Plebeian secession, has but few if any authentic documents yet surviving. The most important of all the laws of this period, and in fact those from which the Roman law in its later form developed itself, were what are called the laws of the twelve tables, or "lex decemviralis." Considerable discussion has arisen as to the origin of these laws. Some, as Mommsen in his Roman history have looked upon them as mere copies of the laws of Solon. Others, that they were first promulgated by the decem virs who either obtained them from foreign sources, or else originated them from their own views of right; while still others believe that they were merely compilations of the laws already existing, and in force. It seems to me that the opinion of Puchta is more likely to be correct than any of the former. He says that it is probably true, that a few of the laws may have been of Greek origin, quoting Cicero who speaks of the law of obsequies, as being derived from the laws of Solon; and Gaius who, in an extract in the Pandects, speaks of the law De Collegiis as of the same origin. He thinks taht the greater part of the other laws, were merely a codification of laws till then unwritten, and of customs which had become of acknowledged force, while the rest which were most probably public laws, were new in part at least, consisted of those rights which had been granted by the Patricians to the Plebs as the price of their return from Mons Sacer. These laws were intended to form a code embracing all the law, public and private, and religious as far as was thought proper to make it known. There exist now only a few fragments of the laws of the twelve tables, and they are mostly upon the subject of private rights, neither the original, nor any copy is now extant. It is very probable that the original tablets were destroyed by the Gauls, though it is said by Cyprianus, that they were preserved in the forum in the year of the city 300. It seems that they were still extant in the time of Cicero, and that in his younger days the youth were obliged to learn them. This code which was peculiarly the law of the Quirites become the foundation of the Roman law, and this law was developed during this period in various ways. This was called the "lex scripta," but there was a large number of customs, which prevailed among the people and were so general as to have the force of law, and these customs were equally valid with the written law. The twelve tables show the fundamental principles of the law, and the rest of the law seemed to be deduced or grow from them.

There were also other sources from which the civil law was developed, and which are given by Cicero, as, "leges," "Senatus consulta," "res judicatæ," "Juris peritorum auctoritas," "edicta magistratum," "mos," "æquitas." Equity is the inner sense of all law, and must be used in determining all cases under the law, and may in time materially modify the letter of the law, when it would work injustice, and "mos" stands very near to equity in modifying, the strict law. The res judicatæ" held about the same relation to the Roman law of that age, that they do in our own. A decision was only binding in the particular case, but the principles which were decided were recognized, and if they had been repeatedly affirmed they gained the force of law. The other sources of the change of the law in this period, were peculiar to the system of Roman law, though some of them have their counterparts, in the systems of nearly all modern nations. One source of the modifications of the law was by the enactment of the leges, and Senatus consulta which have their counterparts in the statute law of modern times. The leges were of two kinds, those which were properly so called, the populiscita which were passed by the curiæ, and centuriæ, and the plebiscita which were the decrees of the Plebs assembled in their comitia. The greater part of the leges which affected the former laws were plebiscita. The most of them were of a public character, although some had an indirect effect upon private rights, and some were entirely upon the subject of paivate rights. Many of these leges are cited by law writers by heir names, and by their subjects, and a few extracts are preserved in various authors. There was no subsequent compilation as comprehensive as that of the twelve tables, and generally a lex was very limited in its scope.

As the right of the Senate to bind the whole people by its decrees, was a disputed political question among the Romans themselves, it is hardly worth while for me to touch the subject of private civil rights. The next method by which the law was developed, was by the writings and opinions of those who were learned in the law, the "prudents, juris periti," or "juris consulti." In Rome these were generally of the higher order in society, and at first appeared before the judge to assist their clients or dependents. This profession was afterwards used to bring persons before the public, when they expected to ask office at the hands of the people. At first the judge was under no obligation to accept their expositions, and of course, when two of equal ability or reputation gave opposing opinions, the judge was at liberty to adopt that view which seemed to him the most reasonable. At first, their office was that of interpreters of the law, but hardly in the sense in which we usually make use of that term. They would not only construe a law, or the law of the twelve tables, from the language of the law itself, but they must know the unwritten, or customary law, and be able to give the meaning of the lex,

as applicable to the whole system of laws. It was in the same way as courts now frequently construe statutes, not merely for the words of the statute themselves, but by reference to the former state of the law, in order to see the effect they have in modifying the law as a whole, and are compelled to fit the statute into the body of the law, to form an organic whole. They had also to interpret the law, by deducing the principles which underlie it, and applying those principles to a state of facts, not exactly those specified in the law, but which are similar in principle, to those already admitted, and we see that in this way, the Roman law passed through a process of developement, very similar to that of the English common law. It was a system of gradual growth, and only reached the state of a modified system at the late age of justinian. The last method of changing and developing the law was by the means of the edicts of the magistrates. At first this change consisted in extending the class of remedies when the actions given by the twelve tables called "legis actiones," did not apply. They were obliged to do this at first in an indirect manner, for if they had drawn up a formula which was not warranted by the law, it would have been dismissed by the judge before whom the case was to be tried. They first made a decree by which they ordered the person charged with a wrong for which no "legis actio" was provided, to enter into a "sponsio," with plaintiff, upon the condition that the money was to be paid if he was guilty of the act. This would be something in the following form: "Do you promise, (Spondes) to give me ten marks if you did such a act; and the reply would be. (Spondeo), I promise." Upon this Sponsio a "legis actio" would lie, and the judge decided whether the money was due upon the Sponsio. So when the occupant of land was threatened with violence by the adverse claimant, and asked the protection of the Praetor, it would be granted only upon the condition of his entering into Sponsio with his antagonist, upon which an action could be brought. The power of the Praetor was extended to an almost unlimited degree, in the first part of the sixth century, by the Lex Aebutia. By this law was introduced the practice of having the complaint and answer of the parties submitted in a written formula, and this formula needed not to be in the words required by the old law.

By this means the Praetor could give new actions which were not based upon the old civil law, and in many cases where the old law gave an action, the Praetor gave a new one, in order to avoid the strictness of the formality of the old proceeding, or to give a more efficient remedy, as in many cases the chancellor has sustained bills in equity where there was a remedy at law, when it was inadequate. There were also introduced, actions based on fictions, as in our comLaon law we have the action of trover based upon a ficticious finding, that of ejectment, upon a pretended lease, entry, and ouster, and actions in the court of exchequer, whose jurisdiction would

be based upon the allegation that the plaintiff is the debtor of the king. The Praetor acted upon the principle that it is the part of a good judge to amplify his jurisdiction, even though they may never have heard of the maxim.

When a magistrate entered upon his duties, in order that the people might know what rules he proposed to be governed by in his administration, it was the custom from an early date, to publish those principles. They were at first declared orally, and afterward were written and hung up in the forum.

It was necessary that the principles by which any Practor was to be governed should be made known, and this was the more especially so after his discretion was so greatly extended, by the Lex Aebutia; and when one Praetor had taken the step of making known these principles by publishing his edict, it would hardly have been possible for his successor to get along without following his example, and thus it soon became the practice of publishing the edict upon the accession of each new Practor. These edicts in which general rules were announced, were at first called "edicta perpetua," in distinction to those which only applied to a particular case.

While at first no Practor was bound to re-publish the edict of his predecessor, yet he would not change without necessity, and would generally accept that of his predecessor, only making such changes and additions as seemed necessary; but we find, that in the time of Cicero, the practice of adopting the edicts of the former oflicer,had become so general that he makes it the ground of one of his accusations against Verres, that he had made new edicts about old things. In the use of the edict, lay the guarantee against arbitrary individual acts, and against partiality in the decisions of the magistrate; and it finally became necessary to pass a law called "Lex Cornelia," by which a Praetor was compelled to issue his perpetual edict upon his accession, and then to leave it unchanged during his whole term of office. The perpetual edicts had a great effect in modifying the civil law. For a time no edict had of itself any binding force upon the success of him who promulgated it, nor upon any other Praetor who held office at the same time, and it had not by any means the same force as a lex. We see this expressed in the maxim, "Praetor jus facere non potest." (The Praetor can not make law.) But as the edict of one Praetor was generally adopted by his successors, and as the Praetors had the means of enforcing their decisions, ly their decrees, interdicts, actions and exceptions, these edicts gradually acquired the force of law, and the body of the praetorian law was called the "Jus honorarium." in opposition to the "Jus civile." This similarity of the relation of the praetorian law to the civil law, with the relation of our system of equity jurisprudence to the common law, will readily be perceived by the following words of Papinian, L. 7, § 1, D. "Jus praetorium est quod praetores introducerant, vel adjuvandi vel supplendi vel corrigendi juris civilis gratia, propter utilitatem publicam." (The