proprietor, to whom two months must be allowed to determine whether he will himself become the purchaser. But, when there is a new tenant, a laudimium, (which is almost the same as a relief, and generally amounts to the value of the 50th part of the estate,) must be paid to the proprietor by the new tenant, as an acknowledgment for being put into possession. Cod. 4. t. 66. 1. 3.

There is also a pension or rent called a canon, which must be paid annually, as an acknowledgement of a superior title; and this canon is always due every year, whether the tenant receives any profits or not: for it is not paid, in consideration of profits received, but as an acknowledgment of the tenure.

The emphyteusis of the Roman law seems to have given rise to our fee-farm and copyhold estates in England. Harris.

4. De forma alicui facienda ab artifice, p. 288. This section seems intelligible only on the supposition, that the labour of the workman is considered as let out by him, and hired by his employer. Hence, Hesketh and Blanchard, 4 East, 144. where, a man contracts to give another half the profits of a concern for managing it, would be a Locatio Conductio, as well as a partnership.

Tit. XXVI. De societate, p. 280. As to the general doctrine of partnerships, and sleeping partners, see Coope et al. v. Eyre, et al. 1. Hen. Bl. 37. and Waugh v. Carver, et al. 2 Hen. Bl. 235. in which cases, the civil law doctrine of partnership, is also touched upon, as to what constitutes partnership. See to the same purpose, Bond v. Gibson, 1 Campb. N. P. Rep. 185. Dry v. Boswell. Ib. 329. Wist v. Small, Ib. 331. N. Alderson v. Pope, Ib. 404. N. Peacock v. Peacock, 2 Camb. N. P. Rep. 45. Guiden v. Robson, Ib. 302. Neersome v. Coles, Ib. 617. Barton v. Harrison, Ib. 97. 2 Taunt. 49.

The French Commandite, where a party in a concern is liable only in respect of the share he brings into partnership, is not known in England. But it appears to be introduced in the banking establishments of this country; with what legal success is yet some what dubious.

Commandite, sometimes signifies partnership, where one advances money, and the other skill. Expte. Garland, 10 Vez. 114. from the Dictionaire de l'Academie Francoise.

§ 8. De cessione bonorum, p. 283.

See on the effect of cessio bonorum, Expte. Burton, 1 Atk. 255. Ballantine v. Golding, Cooke's B. Law, 522. Warring v. Knight, Ib. 373. Quin v. Keefe, 2 H. Bl. 553. Robinson v. Bland, 1 Sir W. Bl. 258. 2 Burr. 1078. Mulloy v. Barker, 5 East, 319. Hunter v. Potts, 4 Term Rep. 182. Sill v. Worswick, 1 Hen. Bl. 665.

Smith v. Buchanan, 1

East 6. Folliot v. Ogden, 1 Hen. Bl. 123. 124. Cornelius Van Raugh v. John Van Rep. 154.

Fotter v. Brown, 5. East,
Arsdaln, 3 Caine's N. Y.

The cases under the insolvent debtors acts, of New York state, are of such frequent occurrence, that I must decline a reference even to their names, referring to the indices in Caines and Johnson.

In Pennsylvania see James v. Allen, 1 Dall. Rep. 188. Miller v. Hall, 1 Dal. Rep. 228. Thompson v. Young, 3 Dal. Rep. 294. Gorgerat v. Murray, Ib. 366. Harris v. Mandeville, 2 Dall. Rep. 256. Emory v. Greenough, 3 Dall. Rep. 369. Baker's case, 1 Binn. 462. Croxall's case, Ib. 589. and as to the mutual operation of cessio bonorum, Smith v. Brown, 3 Binn. 201. confirming, Donaldson v. Chambers, 2 Dall. 100. and Miller v. Hall, 1 Dall. 228.

If defendant pleads a discharge as a certificated bankrupt, in a foreign country, he must prove that the cause of action arose in that country, Green v. Sarmiento, April Sessions, 1811, Coram Washington, in Philadelphia.

The mode of distributing an insolvent's estate in Virginia, will be found in Anderson v. Anderson, 1 Hening and Munford, 12. and Finsley . Anderson, 3 Call's Rep. 329.

As to the effect of the insolvent laws of Virginia, on the future property of the debtor (which, is not protected by those laws.) See Payne .: Dudley, 1 Washington, 198..

On the effect of the insolvent laws of Maryland, see Reily v. Lamar, 2 Cranch, 344. On the effect of the prior lien of the United States, see M'Lean v. Rankin, and Heyer, 3 Johnson's N. Y. Rep. 369. and United States v. Fisher et al. 2 Cranch, 358. and United States v. Hooe, 3 Cranch, 73.

In the Massachusett's Reports, in Bays, and in M'Henry. I can find nothing of moment to the present purpose.

In Simms . Slacum, 3 Cranch, 300. A discharge under an insolvent law obtained by fraud, was decided to be a discharge in due course of law.

§ 9. De dele et culpa a socio præstandis, p. 283. See on this subject the case of Thomason and Hipgip v. Frere, 10 East, 418. The American editor has added a note to this case, including the American decisions on this point up to 1810.

Tit. XXVII. De mundato, p. 284. This title has reference to the general principles of the prolific head of powers; which is too extensive to be treated here. I must refer to Powel, and the Chancery decisions on this subject since his book. If the person empowered, is

paid for his services, the contract is not mandatum, bút locatio conductio.

13. De mercede, p. 288., This is another instance wherein the hire of the labour and service of another, whatever is to be performed, is ranked under the locatio conductio of the civil law.

Tit. XXVIII. De obligationibus quæ Quasi ex contractu nascuntur, p. 289. These are obligations that arise on account of services rendered for a person, without his express command or direction. As when one manages the affairs of an absentee, for his benefit, without his knowledge: negotiorum gestio: which gives the action negotiorum gestorum. 2dly, Guardianship: tutelæ administratio. 3dly, Where business is transacted for common benefit by one joint tenant, tenant in common, or co-partner. Communio bonorum. This is connected with the actions, familiæ erciscunde; and de communi dividundo; which being for common benefit, the expences are proportionably divided. 4thly, Judicium finium regundorum, under the laws for keeping up common fences, and boundaries. 5thly, Aditio hæreditatis, by which the heir is bound to pay the legatees; who cannot be said to have any contract, either with him or the deceased. Though the creditors have. 6thly, Solutio indebiti, where money is paid by mistake; of which I have treated in speaking of the action de condictione indebiti, or money had and received. See also Cod. 4. 5. hoc. titulo.

The money must not be due: and it must be paid by mistake, not knowing the circumstances; otherwise it is tantamount to a gift. Dig. 12. 6. 1-12. 6. 24-12. 6. 26-12. 6. 62-12. 6. 52-12. 6. 65. 2— 50. 17. 53. This quasi contract, includes our action of trover, as to its form. If money be unlawfully paid, as to a woman with intent to seduce her; it cannot be recovered. If it be unlawfully received as by duress, fraud, or extortion, it may be recovered. If unlawfully paid and received, as the wages of prostitution, bribes, &c. it cannot be recovered. 7ly, By accidents, as when a man interferes to repair or prevent some sudden misfortune happening to another: or finds the property of another and recovers it. Dig. 47. 2. 43. 4. So in England, if a man at the moment of necessity relieves a pauper maimed, and who cannot be conveyed safely to his settlement. 8ly, Fraud cres ates a quasi contract in all cases, in favour of the injured party.

6. De solutione indebiti, p. 292. See Taunton's Rep. 359. §7. Quibus ex causis indebitum solutum non repetitur, p. 292. vide ante, Lib. 3. Tit. 15. § 1. and the notes thereto; and Havelock v. Rockwood, 7 Terni Rep. 268.

Ex lege Aquilia Dig. 9. 2. 9. 10.

Nostra autem constitutio. trusts on the same footing. ferred to, is not extant.

Cod. 6. 43. 2. which puts legacies and

But the constitution here particularly re

Tit. XXIX. Per quas personas obligatio acquiritur, p. 293. Quam nostra decrevit constitutio. Cod. 6. 61. 6. cum oportet, &cs, Novella constitutionis, Cod. 6. 61. 8.

3. De servo communi, p. 294.

Per nostram decisionem. Cod. 4. 27. 3. si duo, &c.

Tit. XXX. Quibus modis tollitur obligatio, p. 295.

De acceptilatione, p. 295. This is a verbal discharge or release.
LIBER IV. Tit. I. De obligationibus ex delicto, p. 299.

§ 1. Definitio furti, p. 299. See the case of the King v. Egging ten et al. 2 Bos. and Pull. 511. wherein it was argued by Clifford, with some appearance of law in support of the position, that it is of the essence of the offence that the articles should be taken against the will of the owner; invito domino. Bracton de leg. 3. 2. 32. p. 150. b. and the King v. Donally, 1 Leach, 232. But surely this may well be presumed, from the taking being fraudulent and without the knowledge of the owner. This however tallies with the civil law. See post. § 7. of the present title.

§ 3. Divisio, p. 300. Furtum manifestum, is the same as when the thief is taken with the mainour; or the thing stolen in his hand or possession.

4. De furto concepto, oblato, prohibito, non exhibito, p. 301. Requisitio rei furtiva. This inquiry after things stolen, was made antiently, Lance et Licio: and is noticed in the 12 Tables. Aul. Gella Noct. Att. Lib. 11. ch. 18. and Lib. 16. ch. 10. With their loins girded with a thin cloth, and a metal plate, dish or shield before their eyes. For they were required to go otherwise naked to, search for stolen goods and the Lanx and Licium were used lest they should happen to meet women. See 8 Gibb. Rom. Hist. 9. 22. I follow him in adopting the explanation of Heineccius.

§ 5. Piena, p. 302. Sometimes corporal punishment was added to the fine but this was altered by Justinian, Novell. 134. ch. 13. de pœnarum moderatione. I fancy it is a, general rule that punishments are milder, as knowledge and civilization advance: but this would be a change for the worse, if they were not encreased in certainty on sufficient proof given, as they decreased in severity.

Jonathan Wild, the notorious receiver of stolen goods, was convicted and executed on the clause in 4 Geo. 1 ch 11 which makes it capital to receive a reward on pretence of helping another to recover

stolen goods, unless he also caused the thief to be apprehended and tried. Hale's Hist. Pl. Cor. 620.

The party robbed may bring his action for restitution, after having done his duty by prosecuting criminally; but not before. Hale, Pl. Cor. 546. See post Inst. 3. § 11.`

§ 7. De affectu furandi, p. 302.

Si se intelligant id invito domino facere. This with us and in England, would not amount to a criminal offence.

Furtum sine affectu furandi non committitur. Hence with us, we. must lay the action as having been done felonice, feloniously.

8. De voluntate Domini, p. 303. Per nostram constitutionem. Cod. 6. 2. 20.

A bare intention to commit a crime unaccompanied by an overt act, was not punishable: nemo cogitationis pœnam patitur. Dig. 48. 19. 18. but in England, to solicit a servant to steal, his master's goods is an indictable misdemeanour, although the goods were actually not stolen. The King v. Higgins. 2 East, 5. So the endeavour to provoke another to commit a misdemeanour, as to fight a duel, is indictable; for in these instances there is an overt act. 2 East, 614. The King v. Phillips. The case put by Justinian in this section, will be found in The King v. Eggington, et al. 2 Bos. and Pull. 508.

§ 9. Quarum rerum furtum fit, p. 304. Kidnapping: Lex Fabia, Plagium: Plagiarii: manstealing. Dig. 48. 15. 1-48. 15. 3 & 4 & 7. Cod. 9. 20. 7 and 16. 4 Black. Comm. 219. Literary thieves, Plagiarii, are noticed by Martial, Lib. 1. Ep. 53. See also Cic. pro Rabirio and ad Quinctil. I. 2.

§ 11. Qui tenentur furti : De eo cujus ope, consilio, furtum factum est, p. 304. This includes the doctrine of accessaries. Qui hortatus est ad furtum faciendum, non tenetur furti; is otherwise by the law of England according to the cases quoted just above, under § 8 of this title.

§ 12. De his qui sunt in potestate, p. 305. Action of theft was not allowed against children and slaves, on account of the power the master had over them. Dig. 47. 2. 17.

§ 13. Quibus datur actio furti, p. 306. Indictment lies for stealing the property Cujusdam ignoti. Hale. Hist. Pl. Cor. 512.

§ 18. An in pubes furti teneatur, p. 308. The only question with us, is, whether the child had sufficient knowledge of the nature of the action he was about deliberately to commit, and that it was a crime. Hist. Pl. Cor. 26, 27. 4 Blacks. Comm. 22, 23. Perhaps no evidence would amount to proof that a child was doli capax under seven years of age.