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be allowed to rest upon it until the contrary appears with: out 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 refèr, 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 recover.

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, uuchristian 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 procedents 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 curts is by far the bet. ter of the two and should prevail.- Western Jurist.

different doctrine was declared, and it was beld 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 suficient. 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 thorougbfares, 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 pub lic street is a public place. In one case it was said: "A street is pur se public." Carwile v. State, 35 Ala. 892; McCauley v. Statē, 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 & prima facie case. The State was not bound to anticipate de fences, 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.


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 er 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 168 cases. The ad. vance 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,



(New cases filed since our last report, up to Sept. 28, 1881.]


June 21, 1881. Criminal Procedure Intoxication in 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.


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 guficient to allege that the unlawful act took place in a public highway. In the case of State v. Waggoner, 62 Ind. 481, a

1178. David K. Dietrich v. Elias Folk et al. Error to the Superior Court of Montgomery County. Boltin & Shauck for plaintiff; Craighead & Craighead for defendants.

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. Kubn, Trustee v. Theodore Nieberg. Error

to the District Court of Auglaize County. Marsball & Brotherton for plaintiff ; 8. Ř. 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; Dirlam & Leyman for de tendant

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

1183. Franklin B. Abbott, Adm'r. v. Peter Wella et al. Error to the District

Court of Muskingum County. E. E. Ivens and Chas A. Beard for plaintia.

Olio Law Journal.




like powers, &c.," cuts off the first from all that

might succeed, and, that therefore, the way is COLUMBUS, OHIO,

OCT. 6, 1881.

clear for a new commission.

Whether this be true or not, the need of relief A SUPREME COURT COMMISSION.

is so urgent and the ability of one court to clear

the dockets in a thousand years, so utterly out of To this possible relief, long suffering litigants the question, that a point might be strained and turn with strong hope that it will be speedily something done. But if the coming legislative created and will be soon at work. At the pres-hody is no better than that of last winter (or a ent rate of filing cases and of disposing of them, majority of that body we should say, for there the rights of persons wronged, are as effectually were some royal good men therein), the outlook buried, and the punishment of those who have is dreary indeed. We would suggest a day of committed wrong, as certainly delayed for a long fasting and prayer that God would move the term of years, at least, as though courts of justice hearts of the careless ones, and put hrains in the were all closed and judges all in a Rip Van Win-pans of the brainless members, of that body, just kle sleep. The parties who filed their cases to long enough to get some plan of relief adopted to day, can have but a faint hope that five years hence free the wheels of justice, and oil their long unthat case will have been reached, and those who used and rusting axles. The judges of the Suare now in the agony of a common pleas contest preme Court are doing all they can to dispose of cannot hope for a termination of their trouble the cases on the docket, but it is beyond the within a half score of years, if the case should be shadow of a possibility for them ever to clear: taken to the highest tribunal of the State ! the docket of its eleven hundred cases, in the

But the apathy of our law-makers is undis- face of the vast number of new cases continually turbed, and our word for it, will remain undis coming in. turbed through all the coming session, notwithstanding all this crying need. No impulse can

NEW BOOKS. stir the soul of the average law-maker, unless it be a dog law or a law to pay a bounty for the Baylies on Sureties and Guarantors. A Treatise on the scalps of chip-monks, or bald eagles. They are

Rights, Remedies and Liabilities of Sureties and Guaran

tors, and the application of the Principles of Suretyship paralyzed by the fear that if they pass at law to porsons other than Sureties, and to property liable as

Surety, for the Payment of Money, by Edwin Baylies, giving relief to the people, that their public life Counselor at Law, New York: Baker, Vorhis & Co., will be blasted; that they cannot be re-elected! 1881. pp® 600, $5.00 net.

The plan submitted last winter, as the best Mr. Baylies is favorably known to the legal pro that could be devised, by the State Bar Associa- fession by his connection with several other suction, was ignored without a thought, even by cessful books. This, together with the fact that the bright intellects which evolved only forty- the subject of the book before us is not a hackseven dog laws from their inner consciousness neyed one, that, in truth, the demand for just and spread the same upon the broad tablets of such a work has been really pressing for many solemn enactment.

years, will favorably commend this book to the The people all over the State are clamoring profession and a kindly greeting. But the manfor relief. Will they get it?

ner in which the questions of guaranty and suThe Constitution provides that.

retyship is treated, will be found of great value “The General Assembly may, on applica- to the practitioner. tion of the Supreme Court, duly entered on the journal of the court and certified, provide by

Questions involving the laws of guaranty and law, whenever two-thirds of such, (each) house suretyship have lately arisen with unusual freshall concur therein, from time to time, for the

quency, and have demanded of the courts a reappointment in like manner of a like commis

examination of the principle underlying that sion with like powers, jurisdiction and duties; provided, that the term of any such commission law and the decisions upon which that law was shall not exceed two years, nor shall it be crea- | based. As the result of this examination, quested oftener than once in ten years."

tions, before undetermined or in doubt, have But it is claimed that the limitation, one com- been determined and settled; decisions of doubtmisson in ten years, does not apply to the com- ful authority have been limited or overruled ; mission of 1875. In other words, that the expres- and doctrines before resting in the dicta of the sion “in like manner of a like commission, with judges have in many instances been expressly

re-affirmed and established by authoritative de codes and systems, and a knowledge of the Rocisions.

man law is an absolute prerequisite for the pracThe courts have in many cases returned to the

tice of the law in nearly all those countries.

While the common law of England is a systheories of the old courts of equity, and hold that

tem sui generis, yet the Roman law has not been the rights of sureties and guarantors are in many without its influence upon the English law. instances mere equities, to be regulated, redressed, Some of the earliest writers on the English law and determined by the application of equitable copied largely from the civil law writers, and principles, and have repudiated the more modern

the influence of the civil law upon the equity

system, and the laws of marriage and probate, theory of the common law, that such rights rest can hardly be overestimated. To the lawyer in implied contract, and are to be measured and who aspires to a knowledge of jurisprudence and determined by the rigid rules of laws.

is not contented with being a mere practitioner, The preparation of this work has been evi

the Roman law will always be regarded with indently prosecuted in the belief that a volume

terest and he will be specially interested in con

paring it in its history and inethod of developewhich should present clearly the rights, reme- inent with the system of English law. I prodies, and liabilities of guarantors and sureties, as pose in this article to give a short sketch of the declared and defined by the recent statutes and historical developement of the Roman law and decisions, would be of special value to lawyers

of its literature to the time of Justinian. The throughout the country.

history of the Roman law in its developement

naturally divides itself into four periods. The In this the author is not mistaken. The book

first is from the foundation of the city to the exwill be a welcome addition to the library of every pulsion of the Tarquins. The second from the practicing lawyer.

secession of the Plebs, to Mons Sacer, to the time The mechanical execution is of course unsur

of Augustus. The third from the time of Au

gustus to the beginning of the reign of Justipassed. The name of the publishers is a suffi- nian, and the last the reign of Justinian, alcient guaranty of that fact.

though a number of constitutions of later date

are found in the “Corpus Juris.” THE HISTORY OF THE DEVELOPMENT The history of the Roman law after the time OF THE ROMAN LAW AND ITS

of Justinian is rather a history of the effect of

this law, upon the laws of other nations, than a LITERATURE.

history of the law itself.

The sources of the history of the Roman law BY ORLANDO W. ALDRICH, LL. D:D. C. L. during the first period, are those Greek and Ro

inan historical writers, who treat of the general In nothing is the originative genius of the history of Rome, and we have no remains of any Roman people more clearly shown than in their of the carly law literature, nor any uuthors wlio law, and in no other field hus the influence of treat especially upon that subject. The laws of Roman civilization beun so widely extended and this period were called “ leges regiæ," and are so durable.

quoted by some of the old authors sometimes In art, philosophy, poetry, and even in relig: literally, bnt generally by reference to their ion, the Romans had but little originality, and meaning. Nearly all were ascribed to Romulus seem to have been but little more than mere and Numa; but some are said to have been copyists from the Greeks, und in oratory they passed by Servius Tullius. Dionysius Halicarwere greatly indebted to the same source. But nissus mentions it as a fact that Survius Tullius although a few of their first laws may have been inade a collection of those laws, and added some copied from the laws of Sulon, yet the body of of his owr., but he says that those laws were not the Roman laws was an indigenous product of only abroguted by Tarquinius Superbus, but that the Italian soil, and shows forth the character of even the tubles upon which they were written, the Roman people as a great nation, as it has were destroyed. been shown in no other way. Rome has also It is related by Livy that in the year 573 U. had a wider and more lasting influence through C., two stone chests were exhumed in the field her system of laws than through her arms, her of Janus, one of which was empty and the other arts, science or literature, and though the Roman contained seven books written in Latin, on the influence in religion has become widespread and pontificial law and seven in Greek, on philuso permanent, yet it is very probable that much of phical subjects. These were destroyed by the that influence may be traced to the effect of the Prætor, on account of their being opposed to the rules of the canon law, of which many of the laws of the pontificial religion, and it is not at principles were derived from the civil law. all probable that they were genuine. There Even when Rome was conquered by the barba- was a collection of laws of this period which is rians, they were subdued by her law, and to-duy, cited by later writers, and among them Pumpa in nearly every part of the continent of Europe, nius who calls it "Jus civile Papirianum, from which formed a part of the old Roman empire

, Pupirius who lived in the time of the lust Kings, the civil law prevails as the basis of the various but whether they were really genuine is a very


doubtful question. The laws of that date were There were also other sources from which the chiefly concerned with religious observances and civil law was developed, and which are given by customs, and it is not probable that any of the Cicero, as, “ leges," Senatus consulta, res jucompilations servived the destruction of the city dicatæ," “ Juris peritorum auctoritas," "edicta by the Gauls, and while the Pontiffs may have magistratum,?" mos," "æquitas." Equity is the preserved the usages and customs, and may have inner sense of all law, and must be used in deterbeen able to give the substance of those laws, mining all cases under the law, and may in time yet it is not at all likely that the laws were pre- materially modify the letter of the law, when it served in their original form.

would work injustice, and "mos" stands very The second period which may be said to com- near to equity in modifying the strict law. The mence about the time of the first Plebeian se- res judicatæ " held about the same relation to cession, has but few if any authentic documents the Roman law of that age, that they do in our yet surviving. The most important of all the A decision was only binding in the particlaws of this period, and in fact those from which ular case, but the principles which were decided the Roman law in its later form developed itself, were recognized, and if they had been repeatwere what are called the laws of the twelve ta- edly affirmed they gained the force of law. The bles, or “lex decemviralis.” Considerable dis- other sources of the change of the law in this cussion has arisen as to the origin of these laws. period, were peculiar to the system of Roman Some, as Mommsen in his Roman history have law, though some of them have their counterlooked upon them as mere copies of the laws of parts, in the systems of nearly all modern naSolon. Others, that they were first promulgated tions. One source of the modifications of the by the decemvirs who either obtained them from law was by the enactment of the leges, and Senforeign sources, or else originated them from atus consulta which have their counterparts in their own views of right; while still others be- the statute law of modern times. The leges lieve that they were merely compilations of the were of two kinds, those which were proplaws already existing, and in force. It seems to erly so called, the populiscita which were passed me that the opinion of Puchta is more likely to by the curiæ, and centuriæ, and the plebiscita be correct than any of the former. He says that which were the decrees of the Plebs assembled it is prcbably true, that a few of the laws may in their comitia. The greater part of the leges have been of Greek origin, quoting Cicero who which affected the former laws were plebiscita. speaks of the law of obsequies, as being derived The most of them were of a public character, alfrom the laws of Solon; and Gaius who, in an though some had an indirect effect upon private extract in the Pandects, speaks of the law De rights, and some were entirely upon the subject Collegiis as of the same origin. He thinks taht of paivate rights. Many of these leges are cited the greater part of the other laws, were merely by law writers by wheir names, and by their a codification of laws till then unwritten, and of subjects, and a few extracts are preserved in vacustoms which had become of acknowledged rious authors. There was no subsequent comforce, while the rest which were most probably pilation as comprehensive as that of the twelve public laws, were new in part at least, consisted tables, and generally a lex was very limited in of those rights which had been granted by the Patricians to the Plebs as the price of their re- As the right of the Senate to bind the whole turn from Mons Sacer. These laws were in people by its decrees, was a disputed political tended to form a code embracing all the law, question among the Romans themselves, it is public and private, and religious as far as was hardly worth while for me to touch the subject thought proper to make it known. There exist of private civil rights. The next method by now only a few fragments of the laws of the which the law was developed, was by the writtwelve tables, and they are mostly upon the sub- ings and opinions of those who were learned in ject of private rights, neither the original, nor the law, the "prudents, juris periti,” or “juris any copy is now extant. It is very probable consulti.” In Rome these were generally of the that the original tablets were destroyed by the higher order in society, and at first appeared beGauls, though it is said by Cyprianus, that they fore the jndge to assist their clients or dependwere preserved in the forum in the year of the ents. This profession was afterwards used to city 300. It seems that they were still extant bring, persons before the public, when they exin the time of Cicero, and that in his younger pected to ask office at the hands of the people. days the youth were obliged to learn them. At first the judge was under no obligation to acThis code which was peculiarly the law of the cept their expositions, and of course, when two Quirites become the foundation of the Roman of equal ability or reputation gave opposing law, and this law was developed during this pe- opinions, the judge was at liberty to adopt that riod in various ways. This was called the "lex view which seemed to him the most reasonable. scripta ;" but there was a large number of cus- At first, their office was that of interpreters of toms, which prevailed among the people and the law, but hardly in the sense in which we were so general as to have the force of law, and usually make use of that term. They would not these customs were equally valid with the writ- only construe a law, or the law of the twelve taten law. The twelve tables show the fundamen-bles, from the language of the law itself, but tal principles of the law, and the rest of the law they must know the unwritten, or customary seemed to be deduced or grow from them.

law, and be able to give the meaning of the lex,

its scope.

as applicable to the whole system of laws. It be based upon the allegation that the plaintiff is was in the same way as courts now frequently the debtor of the king. The Praetor acted upon construe statutes, not merely for the words of the the principle that it is the part of a goxond judge statute themselves, but by reference to the for- to amplify his jurisdiction, even though they mer state of the law, in order to see the effect mav never have heard of the maxim. they have in modifying the law as a whole, and When a magistrate entered upon his duties, in are compelled to fit the statute into the body of order that the people might know what rules he the law, to form an organic whole. They had proposed to be governed by in his administraalso to interpret the law, by deducing the prin- tion, it was the custom from an carly date, to ciples which underlie it, and applying those publish those principles. They were at first de principles to a state of facts, not exactly those clared orally, and afterward were written and specified in the law, but which are similar in hung up in the forum. principle, to those already admitted, and we see It was necessary that the principles by which ibat in this way, the Ruman law passed through any Practor was to be governed slivuld be made a process of developement, very similar to that known, and this was the more especially so after of the English common law. It was a system his discretion was so greatly extended, by the of gradual growth, and only reached the state of Lex Aebutia; and when one Praetor had taken a modified system at the late age of justinian. the step of making known these principles by

The last method of changing and developing publishing his cdict, it would hardly have been the law was by the means of the edicts of the possible for his successor to get along without magistrates. At first this change consisteil in following his example, and thus it soon became extending the class of remedies when the actions the practice of publishing the edict upon the acgiven by the twelve tables called “legis act. cession of cach new Praetor. These edicts in iones," did not apply. They were obliged to do which general rules were announced, were at this at first in an indirect manner, for if they first called “clicta perpetua,” in distinction to had drawn up a formulit which wils not war. those which only aplilied to i particular case. ranted by the law, it would have been dismissed While at first no Practor was bound to re-pubby the judge before whom the case was to be lish the edict of his predecessor, yet he would not tried. I'hey first made a decree by which they change without necessity, and would generally ordered the person charged with a wrong for accept that of his predecessor, only making such which no “legis actio" was provided, to enter changes and additions is seemed necessary; but into a “sponsio," with plaintiit

, upon the condi- we find, that in the time of Cicero, the practice of tion that the money was to be paid if he was adopting the dicts of the former oflicer, had become guilty of the act. This would be something in so general that he mikes it the ground of one of the following form: “Do you promise, (Spoudes) his accusations against Verres, that he had made to give me ten marks if you did such a act; and new cdicts about old things. In the use of the the reply would be. (Spondeo), I promise.” Un edict, lay the guarantec against arbitrary indithis sponsio a "legis actio" would lie, and the vidual acts, and against partiality in the decisions judge decided whether the money was due upon of the magistrate; and it finally became necesthe Sponsio. So when the occupant of land sury to pass a law called “Lex Cornelia," by was threatened with violence by the adverse which a Praetor was con pelled to issue his perclaimant, and asked the protection of the Prae- petual edict upon his accession, and then to leave tor, it would be granted only upon the condition it unchanged during his whole terın of office. of his entering into Sponsio with his antagonist, The perpetual edicts had a great effect in modiupon which an action could be brought. The fying the civil law. For a time no edirt had of power of the Praetor was extended to an almost itself any binding force upon the success of him unlimited degree, in the first part of the sixth who promulgated it, nor upon any other Prazlor century, by the Lex Aebutia. By this law was who held office at the same time, and it had not introduced the practice of having the complaint by any means the same force as a lex. We see and answer of the parties submitted in a written this expressed in the maxim, “Praetor jus fucere formula, and this formula needed not to be in non potest.” (The Praetor can not make law.) the words required by the old law.

But as the edict of one Praetor was generally By this means the 'Praetor could give new act- adopted by his successors, and as the Praetors had ions which were not based upon the old civil the means of enforcing their decisions, ly their law, and in many cases where the old law gave decrees, interdicts, actions and exceptions, these an action, the Praetor gave a new one, in order edicts gradually acquired the force of law, and to avoid the strictness of the formality of the old the body of the praetorian law was called the proceeding, or to give a more efficieut remedy, as "Jus honorarium," in opposition to the "Jus in many cases the chancellor hus sustained bills civile.” This similarity of the relation of the in equity where there was a remedy at law, praetorian law to the civil law, with the relation when it was inadequate. There were also intro- of our system of equity jurisprudence to the duced, actions based on fictions, as in our com- common law, will readily be perceived by the mon law we have the action of trover based upon following words of Papinian, L. 7, § 1, D. "Jus a ficticious finding, that of ejectment, upon a praetorium est quod praetores introducerant, vel pretended lease, entry, and ouster, and actions in adjuvandi vel supplendi vel corrigendi juris civThe court of excheaner, whose jurisdiction would ilis gratia, propter utilitatem publicam.” (The

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