ment an exception. So much for Gaius's general treatment. As to his silence, that no doubt is odd, but, on the other hand, what explanation can the objectors give of the alternative formula in Gaius 4, 21 of m. i. iudicati quoted above—“ quod tu mihi iudicatus sive damnatus es," &c.? What is this unexplained contrast between iudicatus and damnatus ?60 It seems to me that Mitteis's argument on this point has little application to Bekker's revised version of Huschke, which is substantially that of most modern text-books, such as Girard's Manuel.61

(c) I pass over the objection based on Livy's phrases nexum se dare, nexum inire, as already disposed of. We have seen that it leads either to two nexa, or no nexum-loan, both impossible conclusions.

62

(d) Certain other objections are of rather too detailed a character to be dealt with at length." They are aimed at the inclusion of the actio auctoritatis, the actio de modo agri, and the legatum per damnationem in the conception nexum, so as to corroborate the Huschkeian theory of nexum-loan. Besides being liabilities incurred per aes et libram and releasable by solutio per aes et libram, they were all supposed to have a lis crescens in duplum adversus infitiantem, and this was held to be a relic of the lis crescens against the vinder in m. i., and so to prove original enforceability by m. i. Mitteis observes that it has long been agreed that the actiones auctoritatis and de modo agri had not a lis crescens, but were ab initio in duplum. One might add that they were not debts arising per aes et libram so much as penalties imposed, presumably by some statute, upon abuses of that ceremony.63

The connexion of the legatum p. d., which really had a lis crescens, with nexum does not disappear so easily. But this is because it has other certain points of similarity, such as that it is releasable per aes et libram. Eisele's defence of the argument from the lis crescens ** is not convincing; at most he makes a drawn battle with Mitteis, and after all the burden of proof is on him. But to enter into the various arguments would take us too far afield.

See Eisele. Studien, pp. 32, 41, and other authors. Contra, Wlassak. ZSS. 25, p. 176.

61 Manuel, p. 983.

2 Mitteis. op. cit., pp. 111 ff.

63 Senn, N. R. H. 1905, pp. 66 ff., citing Girard, N. R. H. 1882, pp. 180 ff.

Eisele, Studien, pp. 36 ff.

One unexpected result, however, of Mitteis's objection is to make it more difficult to understand as the original debts released by Gaius's solutio per aes et libram these actiones auctoritatis and de modo agri. Thus our belief in nexum-loan as the original subject of release is necessarily strengthened.

(e) I must mention one final objection which Mitteis does make good.65. Huschke certainly attributed a magic effect to the words damnas esto uttered by the creditor in the nexumloan; Bekker, on the contrary, regards it simply as a phrase imposing liability which happens to date back to a time when m. i. was the only way of enforcing a liability. Girard, who maintains the argument from lis crescens, holds that the phrase kept its force at a later date; for instance that the words damnas esto in the Lex Aquilia imposed originally a liability enforceably by m. i., and thus he explains the doubling of damages by that lex against a defendant who denied liability.66 But Mitteis seems to me to have shewn that, apart from the lis crescens, there is no real evidence that damnas esto had this effect except in the earliest time, and, as observed above, the argument from lis crescens is itself very doubtful.

It will be said, if we give up these arguments, what evidence is there to connect an earlier damnatio, such as occurred in nexum, with m. i? It is not enough to make such a connexion unobjectionable by revising the history of the legis actiones in the light of comparative law. Some positive support must be found in the native material.

There seems to be two indications of such a connexion: (1) The whole treatment of Dionysius.

67

A perusal of the passages of Dionysius set out by Kleineidam, in the light of what we now know about Greek law (supra, p. 150), leaves no doubt that he had in mind money loans expressly providing for execution on the person of the debtor without judgment. The clearest phrases are perhaps daneízein epi somasin (4, 9), medemian eispraxin einai mete sumbolaou medenòs mete katadíkes medemiâs (4, 11), (4, 10), and the famous threefold division in 6, 83. But to Dio

Huschke, Nexum, pp. 50 ff.; Bekker, Atkionen. 1. 24; ZSS. 30, 14 ff., 30 ff.; Mitteis, ZSS. 22, 1, c.; Girard, Manuel, pp. 481-2 (notes); Eisele, Studien, pp. 30 ff.

66 Girard, Manuel, pp. 480-1.

67

Supra, p. 138, n. 2.

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nysius's evidence Pfluger 70 makes the very pertinent objection that we have to allow for a possible importation of Greek ideas. Dionysius may also have been influenced by the early history of Attica, where the practice of daneízein epi somasin aggravated the debtor-question till Solon's reforms. The hellenization of early Roman history is a fault of even Roman writers, and Dionysius was a Greek writing in Greek. Pfluger's caution against implicit confidence in Dionysius is therefore fully justified.

(2) Besides the evidence of Dionysius we have the fact that both nexum and iudicatum, not to mention the legatum p. d., were releasable in the same way, by solutio per aes et libram. Since between nexum and iudicatum there is no connexion in point of form, their common feature must have been their effects, and the effect of iudicatum is known to have been m. i.72

V. SUMMARY.

I sum up my results as follows:

1. The new theories of two nexa, or of no nexum-loan, present unsurmountable difficulties, and are based only on one or a few more passages of Livy.

2. The theory of self-mancipation is juristically objectionable.

3. The revised theory of nexum leading to m. i. has no serious objections to meet; but on the other hand, it leaves something to be desired in the matter of positive proof.

In conclusion, I ought to say that modern authority, and doubtless older authority also, might have been quoted for practically every argument adduced in this paper. I have not thought it worth while to do so, partly because many arguments are current coin and partly because of the considerations of space. The position here adopted is that of Bekker and Kubler, and with small variations that of Girard, Senn, and Eisele, all of whose contributions I freely utilized.

F. DE ZULUETA.

10 Op. cit., pp. 83 ff.

"Plut. Solon, c. 13, 15; Ath. Pol., c. 6, cited by Pflüger. "An old argument, but put in this pointed manner by Eisele, Studien, p. 36.

PERSONAL.

The City Council of Windsor has appointed Mr. F. D. Davis, a well-known local barrister, and member of the Essex County Bar, to the position of City Solicitor.

Twenty-eight newly fledged young barristers, including one lady, Miss Jean Cairns, of Huntsville, were called to the bar and sworn in as solicitors before Mr. Justice Middleton at Osgoode Hall, recently. They were introduced by Mr. G. T. Shepley, Acting Treasurer of the Law Society, and Mr. Bell, the Secretary, was also present.

The new lawyers are:-H. L. Slaght, J. W. Pickup (with honours and gold medal), F. G. Dyke (with honours and bronze medal), D. R. M. Leask, G. C. McCulloch, H. E. Wallace, A. E. Parkinson, Stewart Cowan, J. H. Bone, J. A. E. Braden, R. H. G. Ivey, G. M. Miller (with honours), H R. Moses, J. M. Murdoch, W. F. Schwenger, W. A. Dillon, E. D. O'Flynn, W. K. Fraser (with honours), D. A. Macdonald, Ephraim Sugarman, W. H. Cook, G. M. Willoughby, A. L. Brady, C. S. McGaughey, J. H. McDonald, J. J. Greenan, Miss Jean Cairns, A. C. Bell.

Owen Ritchie, of the well-known firm of barristers, Cowan, Ritchie and Grant, died of heart failure, aged 48. The deceased was born in Rothsay, N.B., son of Wm. J. Ritchie. He was educated at Bishop's College, Lennoxville, Que., and called to the Ontario Bar in 1889, practicing in Ottawa 18891912, when he was called to the British Columbia Bar and joined with the present firm.

The Intermediate and Final Law Examinations of the N. S. Barristers' Society were held at the Supreme Court House last week, before J. Barnhill, examiner. They began on Tuesday morning and finished on Saturday. Those who took them were:-Intermediate: John E. Read, Halifax; N. Ellis, North Sydney. Finals: M. A. McPherson, H. C. Morse, and J. E. Read, Halifax; Murray McLeod, North Sydney. There were no entries for the preliminary examination.

Under the terms of the Act of Parliament passed last session compelling the retirement of County Court Judges at

the age of 75 years, no less than seven Ontario Judges will be superannuated this autumn. They are: Judge McCarthy, of Dufferin; Judge Price, of Frontenac; Judge Senkler, of Lanark; Judge Robb, of Norfolk; Judge Chisholm, of Waterloo; Judge McCurry, of Parry Sound, and Judge Morgan, of York.

Many demands are being made in connection with these vacancies, as well as those to be created in the High Court of Ontario by the approaching retirement of Sir John Boyd and Judge Britton. A. L. Lancaster, M.P., Lincoln, and A. C. Boyce, M.P., West Algoma, are said to have been promised the two High Court vacancies, while O. S. Crockett, member for York, will be appointed to the Supreme Court of New Brunswick.

After an illness of one week, Mr. Reginald Boultbee, retired barrister, died at his home, aged 52 years. The funeral took place to St. James' Cemetery.

C. M. Foley, of the law firm of W. S. Ball, Lethbridge, has been sworn in as a member of the Alberta Bar.

M. D. McCrimmon, St. Thomas, who has had charge of J. M. Duncan's law practice during the latter's absence from the city, will open an office on Talbot street, east of the Pere Marquette tracks.

Mr. William A. Henderson, late of the legal firm of Robinette, Godfrey, Phelan and Henderson, and Mr. Austin G. Ross, late of the legal firm of Beatty, Blackstock, Fasken, Cowan and Chadwick, beg to announce that they have formed a partnership under the name of Henderson and Ross and have opened offices in rooms 201 and 202 Stair Building, 123 Bay Street, Toronto.

James Morrison Glenn, K.C, LL.B., police magistrate of St. Thomas for the past twelve years, and one of the leading and best known legal men in Canada, died at his home, No. 39 Wellington Street. Mr. Glenn had been ailing for years with creeping paralysis, but it was only during the last few months that he had been forced to remain away from his office. Since then he had spent some time at