Tit. X. De iis per quos agere possumus, p. 358.

Aut suo nomine aut alieno.] In England the liberty of constituting an attorney to prosecute suits is given chiefly by the statute law. vid.. 20. H. 3. cap. 10. 12 Edw. 2. cap. 1. 15 Edw. 2. cap. 1. 7 Ric. 2. cap. 14. 7 Hen. 4. cap. 13. 29 Eliz. cap. 5. For, by the common law, the plaintiff or defendant, demandant or tenant, could not appear by attorney without the king's writ, or letters patent, but ought to follow his suit in his own proper person. Abusion est [says the author of the Mirror] a reteiner attorny sans breve de la chancerie. Co. Litt. 128. a. Harris.

In cases requiring corporal punishment, a proctor was not allowed Dig. 48. 1. 13.

A proctor in England must file his power by 4 and 5 Ann. ch. 16. Mandamus will not lie to reinstate a proctor. Leigh's case, 3 Mod.

332.

When a proctor ceases to be so, and in what cause, see Hall's practice of the court of admiralty, p. 20. A letter of attorney is only a power to transact business ad negotia: a warrant of attorney is ad litem. See an instructive case as to the acts of an attorney, and the distinction between our attorneys at law, and the proctors of the Roman law. Denton v. Noyes, 6 Johns. rep. N. Y. 302. et seq.

Tit. XI. De satisdationibus, p. 360. Dig. 46. 7. 9. and 46. 7. 20. Dig. 2. 8. The securities or cautions judicially required, are, judicio sisti to attend and appear during pendency of the suit. De rato: to confirm the acts of his attorney or proctor. Judicium soli: to pay the sum adjudged against him.

These were taken either by sureties, Cautio fide jussoria. By depo sit, 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. XIL De perpetuis et temporalibus actionibus, 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.

Constitutionibus introductum. Cod. 7. 39. 4 and 5. Cod. 7. 40. Dig. 5. 5.

§ 1. De actionibus quæ in hæredes transeunt vel non, p. 364.

In England, and generally in America, Actio personalis moritur cum 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 cæteris exceptionibus, p. 367. Ex latioribus digestorum libris. Dig. 4.1.

§ 10. De dilatoriis, p. 368. Subjacere censemus.

Neither the con

stitution of Zeno or of Justinian here referred to, is extant.

§ 11. De dilatoriis ex persona, p. 369. Tit. XIV. De replicationibus, p. 370. rebutters, surrebutters.

Pleas in abatement.
Rejoinders, surrejoinders,

§ 4. Quæ exceptiones fide-jussoribus pro sunt vel non, p. 371. See ante Inst. 3. 21. de fide-jussoribus: and Inst. 4. 13. 3. On the subject of mutuality between principal and surety, see expte. Gifford, 6 Vez. 805. and Wright v. Morely, 11 Vez. 12. 22. Tit. XV. De interdictis, p. 372. Interdicts are now There is no difference between interdicts and actions. section of this title.

out of use. See the 8th

§ 3. De interdictis adipiscendæ, p. 374. The Salvian interdict was drawn up by Salvius Julianus at the order of the emperor Adrian. Dig. 43, 33...

4. De interdictis retinenda, p. 374. This section advances the common legal maxim of our law, in æquali jure, melior est conditio pos

sidentis.

Uti possidetis. Dig. 43. 17. Ulp. Lib. 69. Cod. 8. 6.
Utrubi. Dig. 43. 31.

§ 6. De interdicto recuperandæ, p. 377.

Sed ex constitutionibus;

Cod. 8.4. Tenentur lege Julia. Dig. 43. 16. Dig. 47. 1.

Tit. XVI. De pana temere litigantium, p. 379.

1. De jurejurando et pæna pecuniaria, 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,. &c. 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 capiatur pro fine of the English practice, see Serjeant Williams's note 1. to Mortlake v. Charlton, 2 Saund. 193.

Ex constitutione. The oath of calumny was in use long before the reign of Justinian, as appears from many passages in the digests; f 10. t. 2. l. 44. ff. 12. t. 2. l. 16. 34. ff. 39 t. 2. 13. §3 Qui damni in fecti caveri sibi postulat, prius de calumnia jurare debet. And in section 4 of the same book are these words mihi damni infecti postulem, jurare debeo, NON CALUMNIA CAUSA ID EUM, ČUJUS NOMINE CAUTUM POSTULO, FUISSE POSTULATURUM. Ulpian.

Si alieno nomine caveri

But the oath seems afterwards to have fallen into desuetude, and to have been only revived by the constitution referred to; part of which is conceived in the following terms. Actor quidem jurat, NON CALUM

NIANDI ANIMO LITEM SE MOVISSE SED ESTIMANDO BONAM CAUSA HABERE.

Reus autem non aliter suis allegationibus utatur, nisi prius et ipse' ju

raverit; QUOD, PUTANS SE BONA INSTANTIA UTI, AD RELUCTANDUM PERVENERIT. Cod. 2. t. 59. 1. 2.

The canon law permits even a proctor to swear in animam domini sui, vid. decret. Greg. ix. lib 2. t. 7. And this was formerly the practice in all the ecclesiastical courts in England, vid. ord. judiciorum. tit. 99 and 110.-canon 132.-But the oath of calumny is now disused not 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 land, vid. La jurisprudence du Code conferee avec les ordonances Royaux de France tom. 1. p. 297.Groenw. de ll. abr. in 4tam. inst. t. 16.-Philiberti Bugnir on ll. abr. tractatus lib. 1. cap. 3. Harris.

Alia nostra constitutione.] vid. Cod. 3. t. 2. l. 14. et novellam. Patroni autem causarum, &c. Harris.

§ 2. De infamia, p. 380. Ignominiosi fiunt, Dig. 3. 2. Cod. 2. 12. Non contráris actionibus. Nam in contrariis judiciis de dolo aut perfidia non agitur; sed tantum de calculo et supputatione ejus, quod con trario 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.

Tit. XVII. De Officio Judicis, p. 382.

4. Familia erciscunde, p. 384. This is our suit by writ of partition See acts of assembly of Pennsylvania digestedby Purdon tit. Partition, and Walker . Dilworth et al. 2 Dall. 257. and McKee 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 regundorum, p. 385,

Si finium regundorum ] The writs de pérambulatione facienda, and de Fationalibus divisis, are of the 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 Fitsherbert's nat brev. p. 303. 309. Harris.

Tit. XVIII. De publicis Judiciis, p. 386.

3. Exempla. De læsa majestate, p. 387.

Lex Julia magistratis.] vid. 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 ma nors, 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 chattles are likewise forfeited. 3 Co. Inst. 200, 211. Strahan's Domat. supp. Hale's pl. 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, às dulterers are punished by fine.

Cum masculis nefandam libidinem.] The crime here meant is bugge ry or sodomy; under which words all unnatural carnal copulations are

to be understood. The ancient Enlish lawyers all agree, that it ought to be punished with death, ultimo supplicio; though they differ, as to the manner of inflicting it. Britton says, that Sodomites and miscreants shall be burned:-Fleta writes, that they shall be buried alive; pecorantes et 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 majestie vers le roy celester. At this day by 25 Hen. 8. cap. 6. and 5 Eliz. 17. the commiters of this crime, whethermale or female, are no otherwise punishable, than as common felons, who are denied the benefit of the clergy. 3 Co. Inst. cap. 10. Hawk. pl. 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... Stuprum. 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 et veneficis.

Venefici capite damnatur.] In England, all persons suspected of conjuration, witchcraft, or inchantments, were anciently cited into the spiritual courts, where, if they were found guilty, sentence was pronounced; upon which the aid of the secular power was demanded by the ecclesiastical judge, and the supposed delinquents were burned, as heretics, by virtue of the writ de hæretico 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 enchantinents, 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 Eliz. cap. 16. And again, by a statute in the first year of Fames, the first, by which the 5th of Eliz. is repealed.

The 1st of fac. 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