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DUBLIN, MAY 13, 1854.

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It has been recently decided in the case of Creed v. Fisher, (9 Ex. R. 472,) with respect to the construction of section 108 of the 15 & 16 Vic. c. 75, which corresponds with section 112 of our Common Law Procedure Amendment Act, that the right to challenge the jury peremptorily, whether it be a common or a special jury, does not exist in civil actions. In that case a special jury had been summoned pursuant to the said Act, and a peremptory

COURT OF QUEEN'S BENCH-(Continued):

ALLARD AND OTHERS U. RANAGAN. PracticeIrregular defence

254

MORGAN U. POTTER. Practice - Costs-16 & 17
Vic. c. 113-14 & 15 Vic. c. 57, s. 40............ 255

COURT OF COMMON PLEAS:

M'NEAL, EXECUTOR, V. M'COURT. Common Law Procedure Amendment Act-Use and occupation -Demurrer to plaint

256

HARRISON V. LYNCH. Practice - Several counts16 & 17 Vic. c. 113...... MURPHY V. NUGENT. Practice-Replication without leave

257

257

EXECUTORS OF DUFF U. MANGAN AND OTHERS. Practice-Amendment of summons and plaint in ejectment-16 & 17 Vic. c. 113.................... ... 257

COURT OF EXCHEQUER:

RIVERS V. RIVERS. Bond-Defeasance-New contract-Waiver of right to sue...

258

present consider. The law, as it now stands, both here and in England, empowers the court in proper cases to order a jury to be struck according to the former mode; but this power will probably be sparingly exercised. We confess that we can hardly see any great advantage arising from having a special jury in the new style. Indeed, in some places, we believe that there is but one class out of which, nearly all the jurors in civil causes are selected, and in these localities such a special jury would alone differ from a common jury in its increasing the costs of the action, but without any corresponding

challenge having been taken at the trial to one of advantage. It was the power of selection that made

the jurors, it was disallowed by the judge, and the court upheld that ruling. The court was of opinion that the former process of reduction was not in the nature of a challenge, and that the saving clause in the section of the Act, "subject to such right of challenge as the parties are now by law entitled to," only related to the right of challenge, strictly speaking, which could be only for cause. How far this change in the law may be politic we do not at

a special jury, according to the former mode, worth paying for, as it enabled the parties to exclude, from personal unfitness, those whose legal competency was undoubted. We conceive that the view of the law as taken in Creed v. Fisher is sound. It is probable that where the cause of action involves a large stake, courts of law will be disposed to allow a recurrence to the old practice.

Review.

A Manual of Civil Law, or Examination in the Institutes of Justinian, being a Translation of, and Commentary on, that work, with an Introduction on the History of

man Law, by PATRICK CUMIN, M.A., of Baliol College,

Oxford, Barrister-at-Law. London: V. & R. Stevens & G. S. Norton. Edinburgh: T. & J. Clark. Dublin: Hodges & Smith, 1854-pp. 401.

In

In our last publication, there appeared a review of a work on jurisprudence, which owed its existence to the recent revival of legal learning. The same demand has called forth the treatise, the title of which forms the heading of our present article. reviewing a book in a periodical like ours, which does not, in consequence of the scarcity of space, allotted for the purpose, admit of our entering into minute details, it appears to us to be our province, first, to consider the nature of the subject treated of, and next, the mode in which the author has treated it. Following that method, on the present occasion, we will first say a word of the importance and advantage of the study of the civil law. We think that the study of the elements of the civil law is a great desideratum in legal education. Even assuming, what is very far from the fact, that the civil law were a dead letter, as dead as the language in which it has been handed down to us, still we should say, that a system of law, such as the Institutes of Justinian present, founded upon legal maxims and principles accumulating for a period of 1200 years of a nation, during more than half of that period the masters of the known world, and whose jurisprudence was derived from every quarter under heaven, would be most worthy of our consideration, as a vast mine of legal wealth; an oracle of law, whence to draw responses, where positive legislation fails, and first principles must be appealed to. But if this were so, supposing that the civil law were merely a gigantic fossil code, the memorial of the mind of an extinct generation of men, how much stronger does the reason become, when we reflect, that at this present day that law constitutes the basis of the municipal code of many of the States of modern Europe, and of the State of Louisiana, and in great measure of Scotland, where, to quote the words of Lord Stair, cited by Mr. Warren in his introduction to Law Studies, p. 886, "the civil law is not recognized as a law binding for its authority, but as a rule followed for its equity." But it is not necessary for us to go abroad for the purpose of seeing the practical application of this celebrated system. We behold in our country, albeit an anomaly, the civil law predominating in "those eccentrical tribunals," as Blackstone terms them, the Ecclesiastical Courts, and although the advocates in these tribunals form a separate order of lawyers, they, with us at least, invariably combine the profession of the common law, with their special avocations. If however, we regard merely our common law and equity judicatures, we shall find that the obligation of the latter systems of jurisprudence to the civil law have been inestimable. This will sufficiently appear from the perusal of the commentaries of that most illustrious of jurists, in the best sense

of the term, Mr. Justice Story. Even our Common Law has derived an element from the civil code. Mr. Warren tells us that "after the declension of the Roman Empire, the Saxon, Danish, and Norman laws, superseded a great portion of the Roman law, but not very long afterwards, it began again to manifest its influence, and entered largely into the composition of the Common Law, as is sufficiently evidenced by the extant writings of our great Common Law writers, especially Bracton and Fleta. Under the influence of the foreign ecclesiastics, who pouring into this country after the conquest, long monopolized the administration of the law, great encouragement was given to the adoption of the civil law; till the nobility and laity became so jealous of its prosperity, and alarmed at its progress, that a long and fierce feud ensued, between the laity stoutly struggling for the conimon law, and the clergy for the civil and common law; to which in the end they entirely betook themselves, and withdrawing from the temporal courts, left them to the superintendance of the common lawyers; still, however, keeping an ecclesiastic at the head of affairs in the high office of Chancellor, who, as his office gradually increased in influence and power, was enabled, in time, to introduce much of the spirit of the civil law into the administration of the municipal law, especially in Courts of Equity." We all know what aid eminent judges have derived from the civil law, in cases where they had to look to principle for lack of precedent. Little as has the study of these laws hitherto been systematically carried out in this country, few who have received a liberal education, are total strangers to their leading principles. A diligent perusal of the leading Roman Historians has necessarily involved a reference to the antiquities of that great nation, amongst which, the laws of the Republic and earlier periods of the empire, form a leading department. Few of our readers, probably, are unacquainted with that most interesting and elaborate account of the civil law, which is to be found in the 44th chapter of the "Decline and Fall." We may conclude these introductory remarks with a reference to the language of Tindal, C. J., in Acton v. Blundell, (12 M. & W. 324.) "The Roman Law forms no rule binding in itself on the subjects of the realm; but in deciding a case UPON PRINCIPLE, where no direct authority can be cited from our books, it affords no small evidence of the soundness of the conclusion at which we have arrived, if it prove to be supported by that law-the fruit of the researches of the most learned men, the collective wisdom of ages, and the groundwork of the municipal law of most of the countries in Europe."

With regard to the second branch of our subject, namely, the character of the work itself, we are happy to be able to speak in terms of commenda. tion. The author tells us, in his introduction, that the foundation of his book is, the French Manual of Civil Law, by Lagrange, a work of such high authority, as to be used by French Students of Law as their ordinary text book. Agreeably to the plan of that treatise, the form of question and answer has been adopted; a mode, which in our opinion, affords a guarantee of the care and attention

bestowed upon the subject. The author has also diligently consulted the original institutes of Justinian and of Gaius, (the discovery of whose long lost work we owe to the industry and sagacity of Niebuhr,) also the Digest and Code, and particularly the commentaries of Ortolan and Ducarroy. "Out of these materials," he tells us " he has constructed the following work, which is intended as a translation of, and a commentary on, the 'Institutes of Justinian." The most ample use has been made of Gaius and the other authorities; but Justinian's arrangement has been strictly adhered to, so far, at least, as the books and titles are concerned, though the paragraphs have, in some cases, been altered, for the sake of clearer arrangement. In the introduction, Mr. Cumin has given a brief summary of the rise and progress of Roman Law from the earliest period. In opening this subject, he writes; "the law of a people is so completely the experience and result of its civilization, that to be studied with success, it must be studied historically. This is especially true of the Roman Laws; for the corpus juris civilis, which must be regarded as a code and studied as our text book, is essentially an historical document; nor can its contents be elucidated without recurring to the foundation of the city. In short, the law of Justinian's time, is not a body of regulations drawn up by a philosophic legislator, but a heterogeneous mass of positive rules and legal principles originating in custom and enactment, modified no doubt by the spirit of civilization, and interpreted according to the maxims of convenience, sanctioned by judicial authority."-p. 5. These observations are both just and well put. In recapitulating the various acts and monuments, which have justly immortalized the name of Justinian, and showing the nature and design of each, and by whose agency completed, Mr. Cumin tells us that "it occurred to the emperor, that, for a student, the Code (i. e., the compilation of imperial constitutions), and the Digest (i. e., the collection of the writings of the elder jurists, comprising the common law, statutelaw, and law arising from judicial and authoritative exposition), would be too voluminous; he, therefore, directed Tribonian, with Theophilus and Dorotheus, Professors of Law, the one at Constantinople, the other at Berytus, to draw up an elementary work or Institutiones of Roman law. This treatise, which followed the well known work of Gaius, was not simply a book of instruction, for it was declared to have the force of law." That is the work which forms the basis of the present volume, which thence, though to our mind somewhat inappropriately, takes its name. However, as the portions of the text which are translations from the Institute, and which form a large portion of the book, are distinguished from the original matter, which, though incorporated, is merely so by way of commentary, little exception can be taken on this ground. The author himself, as already quoted by us, having explained his general method, it will not be necessary for us to say more with regard to that. Any detailed reference to the contents is wholly out of the question, as our limited space confines us to generalities. It is due, however, both to Mr. Cumin, and to our readers, to give a brief specimen of his

style and mode of execution, having reference to the original, which he translates and illustrates. Take for example, " Institutionum Imperial," Lib. ii. "De testamentis ordinandis." - Tit. x. "Testamentum ex eo appellatur, quod testatio mentis sit. Sed ut nihil antiquitatis penitus ignoretur: sciendum est, olim quidem duo genera testamentorum in usu fuisse : quorum altero in pace et otio utebatur; quod calatis comitiis appellabant; altero cum in prælium exituri essent, quod procinctum dicebatur. Accessit deinde tertium genus testamentorum, quod dicebatur per aes et libram, scilicet, quod per emancipationem, id est, imaginariam quandam venditionem agebatur, quinque testibus et libripende, civibus Romanis puberibus præsentibus et eo qui familiæ emptor dicebatur. Sed illa quidem priora genera testamentorum ex veteribus temporibus in desuetudinem abierunt."

Mr. Cumin thus paraphrases and elucidates the above passage :

"Q. At Rome, what were the original forms of

testaments?

"§1, A. In the earliest times of Rome, testaments were made in the form of laws; and we find two sorts: 1st, the testament calatis comitiis, which was made in an assembly of the comitia curiata, convoked twice a year for that purpose; 2nd, the testament in procinctu, a military testament, which was made just before an engagement, or before setting out on an expedition, in presence of the troops in marching and fighting order; for, 'procinctus,' says Gaius, est expeditus et armatus exercitus.' The people, or the army who represented it in war, on the motion of a citizen, sanctioned his selection of hæredes, and their appointment. To these was added a third, which, in principle, was simply a mancipatio of the hæreditas, i. e., a sale of it made according to the forms, with a reservation of the usufruct. The testator, in presence of six persons, being of full age and Roman citizens, of whom five acted as witnesses, and one as scales man (libripens), declared that he sold and transferred familiam suam, that is, his hæreditas, the aggregate of his rights, to the person whom he had selected as his hæres, and who, as purchaser (familiæ emptor), gave the seller, in token of the price, a piece of brass (aes) with which he had previously touched the scales (libram.)"

So far for the text and its paraphrase. Then follows the commentary:

"These indirect modes of bequeathing clearly prove that citizens had not yet acquired the right to make a testament. In order to keep property in families, the will of one person was not allowed to interfere with the ordinary rules governing the descent of property; a law was necessary. And it is simply because there was no right to make a testament that the indirect mode per aes et libram, or solemn sale (mancipatio) was employed; in short, what could not be transferred to a hæres institutus was sold to a purchaser. The law of the Twelve Tables was the first which gave a man the right to make a testament, i. e., to appoint directly, and of his own will, a hæres or a legatee. The following are its terms: " Uti legassit super pecunia tutelave sucæ rei ita jus esto," Thenceforth, as might be ex.

pected, the testament calatis comitiis was disused. | Mr. Cumin in his notes, which are copious and ex. The testament in procinctu, which was only a corol- planatory. He has, to our mind, succeeded well in lary from the last, survived the law of the Twelve presenting to the public, in a popular form, a sub. Tables; but it was modified. As to the testament ject not only complex but a little repulsive, even per aes et libram, though apparently modified, it underwent many changes." - pp. 117–19.

This short extract, taken almost at random from the body of the work, is, we think, calculated to produce an impression in favour of the author's style and method. We may add, that various collateral subjects which would not admit of being incorporated in the text, have been referred to by

to the student of law. We regard this work as a useful vade mecum, not only to the lawyer and law student, who, not satisfied merely with dealing in quibbles and points of practice, desires to cultivate the science of law, but also to the classical scholar, who will find the information which it contains a useful aid to the study of many of his favourite authors.

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DUBLIN, MAY 20, 1854.

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COURT OF COMMON PLEAS (Continued):
SHEARER V. DOWNING. Distress-Service of no-
tice of particulars-9 & 10 Vic. c. 111, s 10.... 267
FITZGERALD U. RODDY. Special verdict-Amend-

ment......

COURT OF EXCHEQUER:

268

269

NUNN U. GOSSEN. Practice - Security for costs-
Verifying Affidavit-16 & 17 Vic. c. 113......... 268
FITZGERALD D. ROWAN. Leave to plead - Verify-
ing affidavit-16 & 17 Vic. c. 113
EX PARTE TOWNLEY. Practice-Crown bond_
Registration-Amendment - 11 & 12 Vic. c. 120,
8. 10..........
MARTIN v. TITMARSH. Practice Security for
costs Affidavit of merits-16 & 17 Vic. c. 113,
8. 52......

BOYLE U. HAMMOND. Pleading-Malicious prosę-
cution-Demurrer - Embarrassing plea-16 & 17
Vic. c. 113, s. 83.....

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cies of the family might cause it to be desirable
that the property should be made available, the
law, as it at present stood, prevented that be-
ing done. If the wife joined with the husband
in alienating the property, the alienation became
void as against her, supposing she out-lived the
husband. This state of the law rendered the rais-
ing of money more expensive, than it otherwise
might be, to parties so situated, and held out a
positive inducement to married women to be dis
honest.
When married women could alienate any
interest in real estate, it was impossible that the
law could be right in preventing them from doing
the same with respect to personal estate. Another
object of the bill was to enable married women,
who became entitled to property in possession, by
deed, instead of by personal appearance before a
judge, to waive their right to equitable settlement."
The Solicitor-General of England said, on the same
occasion, "The present state of the law, was the
result of a decision pronounced about 30 years ago

We are very glad to find that an eminent member
of the Lower House of the Legislature, Mr. Ma
lins, has obtained leave to introduce a bill for the
purpose of enabling inarried women to dispose of
their reversionary and other interests in personal
estate. In other words, it is proposed to put the
disposing power of married women, with respect to
real and personal property, on the same footing.
The learned gentleman upon the occasion in ques-
tion, on Tuesday night last, (see Times of May 17,)
said, "It was a singular anomaly in the law that
married women were unable to alienate their inter-
ests in personal property, although they could do
so with regard to real estate. If often happened
that a married woman who would become possessed
of property, upon some event occurring which bad
not taken place, such as the death of a parent, was
desirous of making it the subject of some family
arrangement, and it was most desirable that she
As an instance of the justice of this remark, see, Mara
hould be allowed to do so. Though the exigen- v. Manning, (8 Ir. Eq. R. 223.)

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