mits adultery with his wife, though with her consent. 7 Mod. 81. per Holt.

8 Mod, 26. Read v. Marshall. Husband alone may have an action for beating his wife. But husband and wife cannot join in an action for battery on them both. They may join for battery committed on the wife alone; for the damages in this last case survive to the wife. Newton et ux. v, Hatter, Lord Ray. 1208. Hoffin v. Byles, 1 Sid. 387. In an action for negligence, whereby plaintiff's wife was killed, he is not entitled to any damages for the loss of her society, or for his mental sufferings on her account, after the moment of her death. Baker v. Bolton, et al. 1 Campb. N. P. Rep. 493.

Damages beyond the mere loss of service. giving for debauching plaintiff's daughter. Irwin v. Dearman, 11 East, 23. In such an action the daughter cannot be a witness to prove a previous promise of marriage in aggravation of damages, for she has a right to her own action for breach of that promise. Foster v. Scofield, 1 Johns. N. Y, Rep. 297.

§ 7. Pæna injuriarum ex 12 tabulis p. 321. Aulus Gellius, Lib, 20. Ch. 1. says that retaliation was never enforced, in as much as the punishment might be commuted for money. The law of the 12 Tables according to him was, si injuriam faxit alteri 25. æris pœnæ sun

to.

§ 8. De lege Cornelia, p. 322. Passed under Sylla: Lex Cornelia de injuriis. See Dig. 47. 10.5.

§ 9. De æstimatione atrocis injuriæ, p. 322. The Locus injuriæ, is recognized also by the English law, in the doctrine of Mayhem, the Coventry Act, &c. See also 5 Hen. 4 Ch. 5. and 22 and 23. Ch. 2. Ch. 1.

§ 10. De judicio civili et criminali, p. 323. Zenoniana constitutio; See Cod 9. 35. 11. and 12. 8. 2. ut dignitatum ordo servetur.

Tit. V. De obligationibus quæ ex quasi delicto nascuntur, p. 324. Si Judex litem suam fecerit. The judge below was liable to damages in such a case. Dig. 50. 13. lex ult. De var et extraor. cognit, and Cod. 7.49.

Judges of courts of record are not liable to actions, on account of their decisions. See Yates v. Lansing, 5 Johnson's N. Y. Rep. 282. § 1. De dejectis vel effusis, &c. p. 324. Dig. 9. 3. 1. This section in. cludes our law respecting nuisances that work injury to individuals. If damage was apprehended only, there was a writ, nuntiatio novi ope¬ ris, or Cautio de damno infecto. Dig. 39. 1. 1. 1. and 17-39. 1. 5. 34. and 30. 2. 2. and 4. 3.

§3. De damno aut furto, &c. p. 325. An Innkeeper is liable if he be, 1st. The keeper of a common Inn. Mason v. Grafton, Hob. 245.

2. To a guest or traveller, using the house as an Inn. Calye's case. s Rep. 32.

3. And received as such by the Innkeeper, Bird v. Bird, 1. And. 29. Anon. Moore 78. Bennet v. Mellor, 5 Term Rep. 273.

4. Provided the loss happen, by the act or neglect of or his servants. Calye's case. Co. Rep. Ub. Sup

5. Respecting goods deposited in the house. Ib.

Dig. 49. 7. the Innkeeper,

6. But not if the Innkeeper requests and enables the traveller to keep them under lock and key, and he omits so to do. Brand v. Glass, Moore, 158. Dyer 206.

7. Where the Innkeeper receives no profit, he is liable to no risk. Dig. 4. 9. 3. 2: as if a traveller leaves his trunk, and promises to come again at a future day. Gelley v. Clark, Cro. Jac 188.

But this does not relate to a short absence for an hour or two: or to a horse, by which profit is made. Sandy's case, Cro. Jac. 189. York v. Grindestone, 1 Salk. 388.

8. Nor is it an excuse that the Innkeeper is sick: for he ought to keep servants. Cross v. Andrews, Cro. El. 622.

9. The liability does not extend to a personal injury, done to the guest.

10. A master may bring this action, if his

the Inn, of goods belonging to the master.

servant was robbed at Beedle v. Morris, Cro.

Jac. 224. Yelv. 162. Drope v. Thayne, Noy 79. Popham 179.

By the civil law, if the loss happened by means of the Innkeeper or his servants, the action brought on double damages: but if done by a stranger, the damages were single only. Dig. 4. 9. 8-47. 5. 6.

Tit. VI. De actionibus, p. 326. § 1. Divisio prima. p. 326.

Judices, arbitrosve. The Judices decided upon actions stricti juris, the Arbitri, upon actions bona fidei. The referees chosen by consent of the parties, were sometimes called Arbitri, but more properly Compromissarii.

§ 6. De recissoria, p. 329. Cod. 8. 51. 18. See the acts of parliament protecting the rights of absentees. 5 Hen. 4. ch. 14. 4 Hen. 7. ch. 24, &c. Co. Litt sect. 436-440. Continual claime. Harris.

§ 6. De Pauliana, p. 330. This is the principle of the English law against secret conveyances to defraud creditors, 13 Eliz. ch. 5. For the cases illustrative of this statute, see Roberts on fraudulent conveyances, and the references in Cooper's bankrupt law, 144-151.

How far a voluntary conveyance, of a debtor's property for the benefit of his creditors generally, or of such as will assent to the deed, is valid, does not appear to me as yet completely settled under all its distinctions, either in England or here.

An assignment of all a trader's effects and property, is an act of bankruptcy; though for the general benefit of the creditors. 2 Vez. Sen. 19. Clavey v. How, Burr. rep. 476. 829-833. 2241. Sir W. Bl. rep. 1862. Bull. N. P. 40.

In Eastwick v. Cuillaud, 5 Term. rep. 420. a deed of part of a debtor's property to certain creditors was held good, where there was no fraudulent intent, and where the other property remained.

Inglis v. Grant, 5 Term. rep. 630. a deed in trust for the benefit of creditors made in India, was supported, and declared not an object of the bankrupt laws in England. So in Alexander Vaughan, Cow. 402. an act of bankruptcy committed abroad, cannot be a foundation for a commission at home.

But in Eckhardt v. Mellish, 8 Term rep. 142. the court said that an assignment by deed, by traders of all their effects, unless all their creditors concurred, was not only fraudulent and void as against creditors who did not concur, but was an act of bankruptcy. So in Eckhardt v. Wilson, 8 Term rep. 140. Tappenden v. Burgess, 4 East, 232.

In Nunn v. Wilsmore, 8 Term rep. 521. the deed of all the effects was supported, because there appeared to be a solvency.

Meux v. Howel, 4 East. rep. 1. the transaction was supported, being honest and well intended for the common benefit of creditors, though some of them might be delayed.

Burd v. Smith, Lessee of Fitsimmons, however, 4 Dall. 76. has decided in Pennsylvania that a voluntary conveyance made bonâ fide in. favour of such creditors as would accede to the terms of it within nine months, was good. Something like the same principle was also held in Wilt v. Franklin, 1 Binn. 502. But in Bown's executors v. Burrell, Ann. 1751, and Hovey v. Clark, 1788, Root's rep. 252. a general conveyance of all a man's interest for the benefit of his creditors, was held fraudulent and void as against those who did not agree to it. See alse Leech v. Leech, 1 Ch. cases, 249.

$7. De Serviana et quasi Serviana seu hypothecaria, p. 330. The first part of this section, is in principle the same as our suit for rent. The last part is the foundation of maritime hypothecation and bottomry.

The Servian action was introduced by the Prætor Servius, in Cicero's time. The quasi Serviana, by subsequent prætors, or the prac

tice of the bar. The Servian action, was a prætorian, real, action; given to landlords, for the recovery of rent of farms, Prædia rustica; not for the rent of houses, Prædia urbana. It lay against the property where on by previous contract, the landlord had a lien for rent in arrear, but the tenant kept the possession and use of it. The lien held good, in whosesoever hands the property was found Tribut enim hac conventio domino fundi jus in re quod cum re ambulat, et semel quæsitum perpetuum est nec mutatione dominii extinguitur. The property might be redeemed by tendering the demand.

Hypotheca, means sometimes the right of the Pawnee, and sometimes the thing pawned or hypothecated, as in the digest and code, de pignoribus et hypothecis. Dig 20. 1.

A pledge, requires delivery of the article into the possession of the creditor: an hypothecata, is the subject of contract only, and remains with the debtor; but is liable to the lien of the creditor in whosesoever hands it may be found. Dig. 20. 1. 2. 2. sometimes the contract was tacit. Dig. 20. 2. 4. and 20. 2.7.

The action for a pledge was pignoratitia: it was a civil action: hy pothecaria, was a prætorian action. Pignoratitia, was personal, hypothecaria, was real. Pignoratitia, lay against the creditor, holding the pledge when the debt was paid. Hypothecaria, lay against the article subjected to lien by the contract, to compel the payment of the debt. Pignoratitia lay, though the pledge did not belong to the debtor, for it was grounded on his delivery to the creditor, who was bound to retain it no longer than till payment. Hypothecaria, could not be supported in rem, if the thing hypothecated by the debtor, did not belong to him.

Hypothecation, was subject to limitation of suit: viz. it was to be brought within 30 years, against a possessor mala fide: 10 years if bonâ fide and 20 years in cases of absence.

§ 8. De actionibus prætoriis personalibus, p. 331. Receptitia. An action to recover money deposited with a banker.

Ex nostra constitutione, Cod. 4. 18. 2.

§ 9. Actio de constituta pecunia, p. 331. Dig. 13. 5. 1 and 14. A personal prætorian action, founded on a promise, or a contract, consti tutum, to pay what might be due from the proprietor himself, or any person for whom he chose thus to become guarantee.

§ 11. De actione in factum ex jure jurando, p. 332. This is some. what like the ancient practice of compurgators, or modern practice of swearing in this country to a book account.

13. De prejudicialibus actionibus, p. 332. These are actions, as

Bracton says, (who describes them in the same manner, L. 3. ch. 4. n. 9.) Præjudiciales, quia prius judicantur quam actio principalis. 15. De nominibus actionum, p. 333. Condicere, prisca lingua significat denuntiare; nam qui olim cum aliquo litem habebat, denuntiabat ei, UT ILLO DIE AD JUDICIUM ACCIPIENDUM ADESSET. Hodie vero per abusionem, condictio, dicitur actio quam actor intentans dicit, si PARET HUNC DARE OPORTERE. Nulla enim hoc tempore adversario fit denuntiatio. Theoph. in loc. Sir W. Bl. rep. 391. Price v. Neal : this is the action condictio indebiti, for money had and received.

§ 16. Divisio secunda, p. 334. The first part of the division, is our action in detinet.

§ 20. De mistis, p. 336. Herciscere, an old word meaning to di vide, from ex, a hedge or inclosure. Cic. de orat. 1. 1. Heins. syntag. 1. 3. tit 18. The writs in England that answer the purpose of the familiæ erciscunde, the de communi dividundo, and the finium regundorum, are the writs de partitione facienda de rationalibus divisisde perambulatione facienda-de curia claudenda-de reparatione facienda. Fitz. nat. brev.

21. Divisio tertia, p. 336. In some actions in England, double. and triple damages are given: and by 38 Ed. 3. ch. 12. tenfold damages are recoverable against a juror who receives a bribe for bringing in a verdict.

Extortion.

§ 25. In quadruplum, p. 337. 28 Divisio quarta, p. 339. Cod. 3. 31. 3. To the 14 actions here enumerated as bonæ fidei, may be added actio ex stipulatu de dote, of the next section.

§ 29. De rei uxorie actione, &c. p. 339. Cod. 5. 13.

§ 30 De potestate judicis, &c. Et de compensationibus, p. 340. This is the foundation of all our law of defalcation or set off: first given by 2 Geo. 2. ch. 22, and 8 Geo. 2. ch. 4. In Pennsylvania by act of Assembly, a defendant is required to bring forward every set off he may have against the plaintiff, otherwise he is barred from any future action. This seems however by the hundred dollar law of March 1810 to be confined to suits originally brought before a justice of the peace. See post 39. of this title. Nostra constitutio. Cod. 4. 31.

14.

§ 31. De actionibus arbitrariis, p. 341. We have no such action. All actions bona fidei, belong to our equitable jurisdictions, whether at law (as in money had and received) or in chancery.

33. De pluris petitionc. p. 342 Lige falcidia. vide Lib. 2. Tit. 22. of the Instit. Lex Zenonta et nostra These constitutions are not ex

tant.