Inns of Chancery.-Sources of the Civil Law. 233 questions; an annual rent rent being paid by tained so much authority, that it superseded in each society, for the use of the Hall. general estimation even the laws of the Twelve Tables. It happened, however, that as every We shall take an early opportunity of successive prætor considered himself at liberty stating the conclusions which may be rea- tions for himself, the edict of one was freto take an arbitrary course, and make regulasonably urged in favour of the attorneys quently altered very considerably, or altogether and solicitors in reference to the arrange- set aside, by that of another; and, accordingly, ments which may be effected, with regard we find that, in the reign of Hadrian, Salvius to these societies, either under the authority of the present Commission, or a Committee of the House of Commons, to which, in all probability, the subject will be hereafter referred. SOURCES OF THE CIVIL LAW. Julianus was commissioned by the emperor to draw up an edict which was to remain permanently in force, and to be the guide of all succeeding prætors. This was called the Edictum perpetuum. When a portion of a former edict was continued in the succeeding year, it was called Edictum tralatitium; and, when the edict was altogether new, Edictum novum. "The Constitutions, which were, in some IN noticing last week the Manual of degree analogous to the Edicta, consisted of Civil Law, by Dr. Humphreys, we ex- the proclamations and ordinances which were tracted some of the historical remarks of published by the several emperors under the the author on the sources from which the various titles of Decreta, Edicta, Rescripta, Corpus Juris Civilis was deduced. The &c. These Constitutions, from the reign of other sources of this famous system of Hadrian to that of Constantine the Great, were jurisprudence are, the Opinions of Writers collected and arranged by Gregorius (or Grejurisprudence are,—the Opinions of Writers gorianus) A. D. 306, and, subsequently, with "learned in the Law;" the Edicts of the some additions by Hermozenes (or HermozeniPrætors; the Constitutions or Ordinances anus) A. D. 365; and these collections, though of the Emperors; the Code of Theodosius; not actually and formally recognised by any the Code of Justinian; and the Digest of legislative sanction, appear to have been reBasilius. Dr. Humphreys thus describes these various works : "The Responsa Prudentum (otherwise called jus receptum, or receptæ sententia) were the opinions or interpretations of men learned in the law (juris prudentes), illustrating the laws of the Twelve Tables. These interpretations, like the reports and precedents quoted in our Courts, came to be regarded, in course of time, as portions of the law. This practice of giving legal advice is said to have originated with T. Coruncanius, the first plebeian Pontifex Maximus (A. U.C. 470); and became general in a short time. (See Horace, Epist. 2, 1, 103.) "Edicta where the proclamations issued at the commencements of their several years of office by the prætors and curule ædiles, and informing the public of the principles upon which they intended to administer justice; and may, therefore, be regarded as so many additions to and modifications of the laws, which the increase and mixture of the population rendered necessary. The city prætor (urbanus) administered justice, with the assistance of a jury (judices), between citizens exclusively; and the foreign prætor (peregrinus), first elected on the acquisition of a foreign province (Sicily), sat to adjudicate upon all questions arising between foreigners, and between foreigners and citizens, and founded his decisions, not so much upon Roman law, as upon the jus gentium. This new element in Roman jurisprudence, known by the name jus honorarium, i. e. the law of the magistrates, eventually ob 3 Stow, 493; Dugdale, 187; Pearce, 265; 4 Foss, 199. garded as works of considerable authority. "The Theodosian Code, which appears to have been suggested by the collections of Gregorius and Hermogenes, occupies a very important position in the history of Roman jurisprudence. The vast accumulation of laws and commentaries, of various degrees of authority, had attained such a magnitude, that a methodical collection and digest became a matter of necessity; and Theodosius the Second, the grandson of Theodosius the Great, appointed a commission of eight men skilled in the law, under the direction of Antiochus, to compile a code which should embody all the Constitutions of the emperors from Constantine to that date, extending over a period of 126 years, The Commission sat for nine years, and the result of their labours was publicly sanctioned and invested with the authority of law, in March A. D. 438. "It may be mentioned that Theodosius was Emperor of the East only, having placed his cousin and son-in-law, Valentinian, on the throne of the West; and that a document is still in existence, giving an account of the reception and sanction of the Code by the Roman Senate, when presented to them by the Consul Anicius Beilius Glabrio Faustus. "In A. D. 506, an abridgment of the Theodosian Code, generally known as the Ariani Breviarium, was prepared under the superintendence of Count Goiaric, by order of Alaric, king of the Visigoths, for the use of his Roman subjects in Spain and Gaul. This abridgment, the several copies of which seem to have been attested by the signature of Arianus, who held some confidential appointment under the king, was illustrated by a commentary, and is the 234 : Sources of the Civil Law.—Law of Attorneys and Solicitors. principal source from which succeeding authors "Both the Code and the Pandects of Jushave derived any knowledge from the Theodo- tinian were subsequently translated into Greek; sian Code. It has been frequently republished, the former by Theophilus, probably the same with various additions and comments, in later lawyer who was employed in its compilation times sc. by Sichardus at Basle, in 1528; by by the emperor; and the latter by Stephanus Du Tillet at Paris, in 1550; by Cujacius, with of Constantinople, who is also believed to the addition of some novels, at Lyons, in 1566; have been a member of the original Commisby Godefroy of Geneva, its principal expounder, sion. and continued by Professor Marville, in 1665; by Professor Ritter, with a commentary, at Leipzig, in 1745; and all these, together with some mutilated portions of the Theodosian Code and some novels, discovered by Professor Peyron in the Library of Turin, and by Professor Clossius at Milan, were methodised and republished by Professor Wenck, at Leipzig, in 1825. "The Basilica (Constitutiones) was a digest undertaken in A. D. 867, by the Emperor Basilius the Macedonian, with a view to supply the inhabitants of the Eastern Empire, whose vernacular language was Greek, with a new and intelligible manual of the laws by which they were governed. Basilius, however, did not live to witness the completion of the work, which was eventually published, shortly after "The Justinian Code was a digest of all the his accession in 886, by his son Leo the Phipreceding codes and constitutions, prepared losopher. Of this digest, which was recog by the Commissioners, who were invested with nised as law only in the Eastern Empire, sea discretionary power, under the superinten- veral translations and editions have been pubdence of Tribonian, to revise and epitomise lished in later times; the most remarkable of their materials according to their judgment. which are those of Cujacius, edited by Labbé, This task, which was undertaken in A. D. 528, at Paris, in 1609; of Talrot, at Paris, was completed in the April of the following 1647; of Dr. Heimbach of Jena, at Leipzig, year, and was declared by an imperial sanction in 1833." to supersede all previous codes and collections whatever. Immediately after the completion of this work, Tribonian was again employed, at the head of a Commission of 16 jurists, to execute another, involving considerably more skill and labour. This was the preparation of a digest of legal science, not from the consti- RESTORATION TO ROLL, AFTER STRUCK tutions or edicts, but from the commentaries of celebrated lawyers, such as Sabinus, who lived in the time of Augustus; Caius, who lived in the reigns of Hadrian and the Anto. nini; Papinian, who lived under Septimius Severus; and his pupils, Paulus, Ulpianus, and Modestinus. In the short space of three years, this work was completed in 50 books, notwithstanding the difficulties occasioned by diversities of opinion among the old jurists, which it was found necessary for the emperor to reconcile and decide by the promulgation of his quinquaginta decisiones. And in 533 it was published under the name of the Digesta or Pandecta, and so sanctioned as to have the force of law. LAW OF ATTORNEYS AND OFF FOR MISCONDUCT. IT appeared that the petitioner was employed by the sole assignee on the bankbusiness of the bankruptcy, and that at the ruptcy of one Powell, to manage the whole meeting in December, 1840, the assignee rendered his accounts on oath, which had been prepared by the petitioner, showing a balance of 2347. only as due, and the accounts were passed and the amount divided among the creditors as a final dividend. It, however, afterwards transpired, that the account was incorrect in various particulars, several sums received by the petitioner not having been accounted for, and after an investigation, the assignee was charged with a sum of 1844, which An application was then made in 1842, "Justinian, however, considering his great work of codification still incomplete, commissioned Tribonian, Theophilus of Constantinople, and Dorotheus of Berytus (Beirout) to was paid by the petitioner. draw up an elementary work from the Code and Pandects, for the more convenient use of law students, which is now known as the In- by the President of the Birmingham Law stitutes. He also employed Tribonian with Society, to strike the petitioner off the roll, four others to revise the first Code (that of and Lord Langdale directed the name to 530), and incorporate with it the fifty deci- be struck off. sions; and this revised edition, published and In April, 1843, the petitioner went to sanctioned in 534, under the name of the the United States, for the purpose of prac Codex repetita prælectionis, is the only form in tising there, but finding he could not pracwhich the Code has come down to our time. tise until after a residence of three years, In addition to all these, Justinian published, in he returned to England in September, the course of the succeeding ten years, not less than 164 Novella Constitutiones, which were 1844. In April, 1845, he commenced the principally written in Greek, and are now ge- business of a share-broker at Manchester, nerally known as the novels of Justinian. and was afterwards elected to the office of 235 Law of Attorneys and Solicitors.-Law of Costs.-Common Law Courts. Chairman of the Stock and Share Ex-ceedings were stayed for 14 days, with liberty change, an office of a very responsible and to the defendant to obtain the taxation of the influential nature; but in February, 1846, bill of costs, and the order then provided, that he resigned the office in consequence of "if on taxation the damages should be reduced certain parties circulating rumours relating to 50l. or under, the verdict shall be entered to the order of 1842, and he subsequently for the reduced sum, and the plaintiffs and was compelled to abandon his business. He presented a petition in 1847, praying defendant shall respectively have the same to be restored to the roll, but Lord Lang- rights under the London County Court Act as dale, who heard it, died without giving they would have if the verdict had been found judgment, and the petitioner then became at the trial for the reduced sum." A refermanaging clerk to a firm of solicitors of ence was obtained at the Rolls for the taxation Birmingham, with whom he had continued, of the bill, which was reduced thereby to The present application was supported 411. 5s. The plaintiffs afterwards obtained a by affidavits of a justice of the peace, a rule to rescind so much of the Judge's order banker, and the incumbent of St. Mary's as related to the reduction of the damages on Birmingham, as to his honourable and upright conduct, together with a memorial taxation, on the ground that the death of the signed by 86 attorneys and solicitors of the Judge since the trial, precluded them from town, including the town clerk, the clerk obtaining a certificate under section 119, that of the peace, and the deputy clerk of the the cause was fit to be tried in the Superior peace. The Committee of the Birmingham Court, and that they were consequently unduly Law Society had, after due consideration prejudiced. The defendant also obtained a of the case, come to the determination not rule for liberty to enter a suggestion under the to oppose the petition; and the Incorpo- Act, and for the plaintiffs to pay the defendant rated Law Society did not oppose. the costs of the taxation, more than a sixth having been taxed off. The Master of the Rolls said "I have considered this case, and I have determined to restore this gentleman to the roll. Though he was very properly struck off, yet, considering the great length of time that has elapsed, and the great suffering he has endured by reason of the order, considering the testimonials to his good behaviour and conduct, and that the application is supported by so many solicitors of Birmingham, who have certified to that effect, and the absence of any opposition on behalf of that most useful and intelligent body in London, the Law Institution, I have come to the conclusion, that I shall best act by restoring this gentleman to the roll of solicitors. "I sincerely hope, that the severe lesson he has received, will have the effect of making him act, for the future, with perfect straightforwardness and strict integrity in all his dealings; I therefore restore him to the roll, and an order may be made accordingly.' Anon. 17 Beav. 475. LAW OF COSTS. ACTION BY ATTORNEY IN SUPERIOR COURTS. —WHERE MORE THAN 20. RECOVERED. -LONDON SMALL DEBTS' ACT, 1852. ON the trial of an action brought by attorneys to recover 51l. 14s. 7d., the amount of their bill of costs for presenting a petition under the Winding-up Acts, a verdict passed | for the plaintiffs for the amount claimed, subject to taxation. By a Judge's order, the pro The Court discharged both rules with costs, and held, that the 15 & 16 Vict. c. lxxvii., did not deprive an attorney, suing for his bill of costs in the Superior Courts, of the costs of the action where he recovered a sum exceeding 201.; and that the application as to the costs of taxation could not properly be made to this Court, but should have been to the Master of the Rolls. Borradaile v. Nelson, 14 Com. B. 655. 236 Questions at the Examination. QUESTIONS AT THE EXAMINATION. sons to decide questions of law in the same Courts? Hilary Term, 1855. I. PRELIMINARY. 1. WHERE, and with whom, did you serve your clerkship? 2. State the particular branch or branches of the law to which you have principally applied yourself during your clerkship. 3. Mention some of the principal law books which you have read and studied. 4. Have you attended any, and what, law lectures? TI. COMMON LAW AND PRACTICE OF THE 5. Explain the nature of a Common Law action, and illustrate your explanation by an example. 18. Into what divisions is evidence usually classed? Are there any degrees of secondary evidence? 19. State the names of the Superior Courts of Common Law at Westminster. Have they concurrent jurisdiction in personal actions;and if so, has the plaintiff the option of proceeding in either of them? III. CONVEYANCING. 20. State the heads of the conditions proper to be made on the sale of a freehold estate by public auction. 21. What additional conditions are usually proper on the sale by public auction of a leasehold house in London? the commencement of your abstract, and why; 22. What is the proper distance of time for back? 6. State the parties to a bill of exchange-and in what cases must you go further which of them is primarily liable, and what is the liability incurred by an indorser. 7. Does an indorser undertake to pay the amount of a bill at all events; and if not, what are the steps that must be taken by the holder to give him a right to sue the indorser in an action on the bill? 8. Within what period must an action to enforce a simple contract be brought? Is the time of limitation governed by the Statute or Common Law? Can a defendant take advantage of it, who has been the whole period out of the country? 9. What is the nature of a guarantee? Is it affected by the Statute of Frauds? 10. Is the contract for the sale of a horse for 101. or more affected by the Statute of Frauds? and if so, must the consideration be expressed in the written agreement? 11. If a parol contract be made between A., on the part of C. and for his benefit, and B., in whose name must an action be brought to enforce the contract against B.; and would it make any difference if the contract were in writing, but not under seal? 12. Explain the nature of a set-off.-Is it governed by the Statute or Common Law? 23. What is the usual mode of verifying a pedigree? 24. At what place must the title-deeds be produced for examination in the absence of the expense of journeys for their examination ? stipulation; and who in that case is to bear titled to the title-deeds of land contracted to 25. In the absence of stipulation, who is enbe sold, which relate also to other land of greater value? 26. Who should covenant for production of deeds not delivered to a purchaser? 27. State the heads of the usual covenants, from a vendor to a purchaser of freehold 31. Can a deed be altered to any, and what, extent after it has been executed by all, or any of the parties? 32. How was dower barred before the Statute of 3 & 4 Wm. 4; and how since? 33. State shortly the process of a recovery. 34. As between a devisee and the executor of a testator, who is liable for a mortgage 13. Is it compulsory on a defendant to setoff his claim against the plaintiff's demand in an action brought by the plaintiff? or can he bring his action for the amount of his set-off? 14. To what amount have the County Courts jurisdiction;-and what is the name on the land devised made subsequently to the will? How has the law been lately altered? IV. EQUITY AND PRACTICE OF THE of the form of commencing an action in those Courts, as distinguished from that in use in the Superior Courts ? 15. Must the service of the writ of summons on a defendant be personal, or will mere efforts to serve him be sufficient to enable the plaintiff to proceed in his suit; and state the practice on this head as it now obtains under the Common Law Procedure Act, 1852. COURTS. 35. If a partner become lunatic, does the lunacy operate as a dissolution of the partnership, or entitle the other partner to any, and what, relief from the contract of partnership? 36. State the mode of proceeding by which executors or administrators of deceased per16. What is the nature and effects of a sons are enabled to ascertain whether there are demurrer ? any outstanding debts or liabilities affecting 17. Who are the proper persons to decide the estates of such persons without an admiquestions of fact in actions brought in the Su-nistration suit. perior Courts? and who are the proper per- 37. Can a solicitor, being one of several trustees, under any, and what, circumstances, ļ 54. What are the Acts of Bankruptcy which make professional charges for business done a trader may voluntarily commit, and what by him as a solicitor for the trustees ? the acts which he may be compelled to commit? 38. State the different forms of defence to a suit in Chancery, and explain shortly the effect of each. 39. If in a suit or proceeding, it appear that a deceased person who was interested in the matters in question has no legal personal representative; has the Court any, and what, power of proceeding without requiring letters of administration to be obtained from an Ecclesiastical Court? 40. What is the course of proceeding upon a suit becoming abated by death, marriage, or otherwise, or defective by reason of some change, or transmission of interest or liability? 41. In a suit for an account, is it competent for the Court to direct that the books in which the accounts required to be taken have been kept, shall, to any, and what, extent be deemed evidence of the truth of the matters therein contained? 42. What is the course of proceeding, if upon default made by a defendant in not appearing to, or not answering a bill, it appear to the Court that the defendant is an infant, or of weak or unsound mind, not so found by inquisition ? 43. In what case can a married woman be compelled to appear and defend a suit separately from her husband? 44. Upon an application for payment to the husband of money in Court belonging to the wife, what evidence is required in support of the application? 45. If previously to a decree a receiver be appointed, and the decree does not in any way notice the appointment; does this omission affect the continuance of the receiver? 46. Is a receiver liable under any, and what, circumstances for moneys belonging to the estate deposited, by him with a banker who afterwards fails?" 47. When the next friend of an infant plaintiff dies, and there is delay in appointing a new next friend, what is the proper course of proceeding by the defendant? 48. In what cases may a defendant be bound upon the service of a copy of the bill by all the proceedings in the cause? 49. State some of the principal cases in which it is no longer competent for a defendant to take any objection for want of parties to a suit. 55. State the mode of proceeding in order to procure an adjudication in bankruptcy. 56. What are the requisites to support the petition of a creditor in order to obtain an adjudication against the bankrupt? 57. What are the consequences to a trader who becomes bankrupt a second time? 58. Must the petitioning creditors' debt be due and payable at the time of the act of bankruptcy, in order to support the petition for an adjudication? 59. Can a creditor who holds a mortgage as a security for his debt, be a petitioning creditor? 60. State what kinds of debts may be proved under a bankruptcy. 61. Have judgment creditors any, and what, priority over other creditors? 62. Are joint creditors entitled to prove on the separate estate of the bankrupts or separate creditors on the joint estate? And how can they interfere in the proceedings? 63. A trader has trade debts and assets, and private debts and assets. Are separate dividends to be paid to each class of creditors, or is there no distinction to be observed? 64. State the course of proceeding in the choice of creditors' assignees. VI. CRIMINAL LAW AND PROCEEDINGS 65. State concisely the distinction between such Acts as constitute crimes, and such as are regarded as civil injuries, and the several tribunals before which the former class are ordinarily prosecuted according to their nature and character; which, also, describe briefly. 66. In case of trial and conviction before an inferior jurisdiction, to what superior one does an appeal lie? and state the course of proceeding in such appeal. 67. Define the Acts which constitute the crime of embezzlement; the distinction between that offence and breach of trust, and state how each should be proceeded against. 68. Are there any, and what, circumstances which would convert what was a criminal offence into a civil debt? 69. Describe the offence of larceny, and state the distinction, if any, between grand and petty larceny. 70. State the distinction between perjury and subornation of perjury-what constitutes each offence, and the difference in punishment, if any. 71. Define briefly what constitutes a libel, and the redress to be obtained for it either civilly or criminally, and the course of proceedings in each case-and can the libeller be both prosecuted criminally and proceeded against civilly-and if so, for what reason. 72. Is the truth of a libel a sufficient defence to either a criminal prosecution, or civil action, or which? and if to either, state the reason. |