359

NOTES.

It seems convenient to repeat in a conspicuous place that it is not desirable to send MS. on approval without previous communication with the Editor, except in very special circumstances; and that the Editor, except as aforesaid, cannot be in any way answerable for MSS. so sent.

NOTE ON THE CANONISTS.

FEW English lawyers know what works on the Canon Law are of authority, or the method of citing them. I put together the following notes for my own convenience, and I think that they may be useful to lawyers who are not civilians. I have added a short statement of the method adopted by the Canonists in citing the civil law.

Authorities on the Canon Law.-Various collections of Ecclesiastical law, called 'canones,' as distinguished from 'leges,' temporal laws, were made from time to time by private persons. The most celebrated of them was the 'Decretum' produced by the learned Gratian in the twelfth century, republished in 1582 by the orders of Pope Gregory XIII. In 1226 Pope Honorius III sent a compilation of Decretal Epistles to the university of Bologna, and directed that it should be taught and used both in the courts and schools of law. This compilation appears to have been superseded by an authentic collection called 'The Decretals,' published about 1234 under the authority of Pope Gregory IX, who directed that this collection alone was to be used in the courts and in the schools. See Hallam, Middle Ages, ii. 287. Another volume of Decretals was published in 1298 by Pope Boniface VIII. Other decretal epistles were published by subsequent Popes under the name of Extravagantes.' A book of Decretals by Matthaeus and four books of Institutes by Lancellottus have always been regarded as of great authority in the Canon law, though they have never received the Papal sanction. In England the Ecclesiastical Courts have also received as works of authority the Constitutions' of the legates Otho (1236) and Othobon (1268), the 'Glosses' of Joannes de Atho (about 1290), the 'Provincial Constitutions' of successive Archbishops of Canterbury from 1222 to 1417, all of which with the Glosses of Lyndewood (1423) are usually printed together and referred to under the name of Lyndewood. The Pupilla Oculi,' published in 1385 by John de Burgo, Chancellor of the University of Cambridge, is also considered an authority.

Manner of citing the Canonists.-The references to the authorities on Canon and Civil law are very complicated. It is possible that before the invention of printing it was not found safe to adopt the modern plan of referring wherever it is possible to numbers. The first part of the Decretum is referred to as d. di. or dist. [distinction], the second part as q. [quaestio], and the third part as con. [consecratio].

References to the first part of the Decretum take the form dist. 8 quo jure or 70 dist. c. 1 & 2, that is, the first part of the Decretum, the chapter beginning' quo jure' in the 8th distinctio, and the first and second chapters in the 70th distinctio of the first book. The second book is referred to as

follows, 26 q. nec mirum in v. [or §] magi, which means the paragraph that begins Magi in the canon nec mirum in the fifth quaestio of the 26th causa of the second part of the Decretum. References to the 3rd quaestio of the 33rd causa of the second part of the Decretum sometimes take the form de poena dis. 1. homicidiorum, which means the canon commencing' homicidiorum' in that quaestio.

The reference to the third part of the Decretum is made as follows, de Con. dist. I. c. Ecclesia, meaning the canon commencing Ecclesia in the first distinctio in the third part of the Decretum.

The Decretals are divided into five books, each book into titles, each title into chapters and paragraphs. The reference de sum. Trin. et fi. Cat. damnamus means the chapter damnamus in the title de summa Trinitate et fide Catholica; this may also be cited as Extra de sum. Trin. et fi. Cat. c. damnamus, where Extra' means 'Extra decretum Gratiani.' The seventh and eighth books are cited in a similar manner, adding at the end lib. 6 or lib. 7. The Clementine decretals are cited in like manner, prefixing 'Clemen.' or adding 'in Clemen.'

The Extravagantes are cited de præb. et Dig. Extra. Joan. XXII or de major et obed. Extra. Com., the references being to the Extravagants of Pope John XXII or to the Extravagantes Communes.

Manner of citing the Civil law. -The Digests or Pandects are referred to by the letters ff. This abbreviation appears to have arisen by calligraphic development from a d with a line through it' (Roby, Introduction to the Study of Justinian's Digest, p. ccxlv, q. v. for further details). The titles and laws are referred to by their first words: thus ff. de damno infecto, 1. si finita means the law beginning si finita in the title de damno infecto of the Digests. This may also be written l. si finita, ff. de damno. The more modern practice is to refer to the numbers of the book, title and law: thus the law cited above would be 'Dig. (or D.) XXXIX. Tit. II. 1. 15,' or 'Dig. XXXIX. II. 15.' The Institutions are referred to as follows, Instit. de nuptiis, § duorum, which means the paragraph commencing duorum in the title commencing de nuptiis. This may also be referred to as 'Instit. I. Tit. X. § 4. Many modern writers use the single letter I, thus: I. i. 10. § 4.

References to the Codex were made as follows: Cod. de Feriis, 1. omnes Judices, meaning the law commencing Omnes judices' in the title de feriis. This would now be referred to as 'Cod. (or C.) III. Tit. XII. 1. 3. Some writers, however, still put the law and paragraph before the book and title; and there is much variation in the use of Roman and Arabic figures and other minutiae (see Roby, 1. c.).

References to the Authenticum, i. e. the old Latin version of the Novels of Justinian, are made as follows, Authent. de nuptiis, cap. sed etiam, coll. 4, meaning the chapter beginning 'Sed etiam' in the title de nuptiis' in the fourth Collatio of the Authenticum. This may be referred to as 'Aut. Col. IV. Tit. I. Nov. VII.'

References to the Liber Feudorum are made as follows, 'In Feud. quid sit Invest. § si vero,' or 'Feud. 2. Tit. 2. § 1.'

The old-fashioned citations without numbers can be traced by means of the indices with which all modern editions of the Corpus Juris are furnished. H. W. E.

The note in the LAW QUARTERLY for April last (p. 236) upon Mr. Justice Kekewich's disapproval of the practice of citing as authorities the text-books of living authors, and particularly of authors on the bench under

the notion that these latter possess a quasi-judicial authority' recalls an incident at the argument of Rodliff v. Dal'inger (141 Mass. 1) before the full bench of the Supreme Court of Massachusetts, of which Mr. Justice Holmes is a member.

The question was whether the owner of goods, which had been delivered to an agent for a principal really fictitious, but represented to be existent although undisclosed, and which had been pledged by such agent as his own, could maintain replevin against the agent's bona fide pledgee. After a verdict for the plaintiffs the case came before the full bench upon the defendant's exceptions. These were argued at considerable length by the defendant's counsel, while the plaintiffs' counsel simply read to the Court the third paragraph of Lecture IX of Holmes's Common Law, (say) nine lines (see p. 308).

Despite, then, Lord Justice Fry's remark that it is hardly enough remembered how different are the circumstances under which a book is written and a judgment pronounced' (Specific Performance, 2nd ed. preface), it may be said that in this case the opinion of the Court written by Mr. Justice Holmes shows that the counsel for the plaintiff safely assumed that the circumstances under which The Common Law' was written and the judgment as to his clients was to be pronounced were far from different, and that a quasi-judicial authority' might properly be attributed to the text-book in question, although written before its author's elevation to the bench.

6

BOSTON, MASS., 25 May, 1888.

B. S. L.

[The relative weight of text-books, as compared with decisions, is no doubt much greater in the U. S. than here.-ED.]

The Lunacy Acts Amendment Bill appropriately closes an intricate, yet thoroughly characteristic, chapter in the history of English law. After a struggle of nearly a century and a half's duration against the lukewarmness of a public opinion whose fitful activity had to be at once stimulated and sustained by such object-lessons in insanity and its treatment as the sufferings of Norris, the strange hysteria of Chatham, and the incapacity of George III could supply,-against the stern resistance and the material resources of the culprits to whom inquiry meant exposure-and latterly against the conservatism of the House of Lords-the policy of Tuke and of Shaftesbury has prevailed, and a really comprehensive and symmetrical measure has been produced.

The new Bill embodies most of the suggestions made by the Dillwyn Committee.

1. From Scotch procedure (24 & 25 Vict. 54. 14: 29 & 30 Vict. 51. 4) it borrows the principle that the committal of a lunatic to any asylum or licensed house should be a magisterial act.

2. It provides for cases of urgency on the principle of the Scotch Emergency Certificate.'

3. It brings every lunatic under confinement into a closer relationship with those who exercise jurisdiction in lunacy-(a) by giving to a lunatic committed under a magisterial order, without a personal examination by the committing magistrate, a general right to insist upon being taken before an independent judge, magistrate, or justice; (b) by requiring medical superintendents to report to the Commissioners of Lunacy upon the bodily and mental condition of every patient within one month after the date of his reception; (c) by making the continuance of the order of detention depend

upon the regularity and the satisfactoriness of subsequent periodical reports; (d) by providing that letters written by patients in any asylum or licensed house to the Lord Chancellor, or any Judge in Lunacy, or to a Secretary of State, a Commissioner or a Visitor in Lunacy, or to a committing magistrate, shall be forwarded unopened, by the medical superintendent or proprietor, under liability to a penalty not exceeding £20 for each offence; and (e) by enabling any person to apply to the Commissioners for authority to have a patient medically examined, with a view to his discharge if improperly detained.

4. Power is given to the Court to appoint a committee of the estate only of any person who, upon inquisition, is found capable of managing himself, but incapable of managing his affairs.

5. The new Bill contains a most salutary provision, which has long been demanded, and will be heartily welcomed, by the whole medical profession,to the effect that any person against whom an action is brought for having improperly granted certificates of lunacy may have it arrested in its preliminary stages and dismissed upon terms, by satisfying a Judge of the High Court that he had acted bona fide and with reasonable care.

A. W. R.

Per and Post.-Most students of Elizabethan law must have been perplexed by the constantly recurring phrases in in the per' and 'in in the post,' sometimes for brevity written in the per' and 'in the post.' The explanation will, I believe, be found in the forms of the old writs of entry.

If a disseisor (in which word I include an abator, intruder, and the like) made a feoffment, or died seised so that his heir inherited the land, the entry of the feoffee or heir was lawful, as he had a right to the possession, and the form of the writ for the recovery of the land by the rightful owner was for the recovery of land held by A 'in quam non habuit ingressum nisi per B (the original disseisor).' Similarly, if the heir of the feoffee or the feoffee of the heir of the disseisor was in possession the writ took the form in quam non habuit ingressum nisi per B cui C (the disseisor), &c.' In other cases where a writ of entry lay, the writ stated that the tenant 'non habuit ingressum nisi post, &c.' The writs were said to be 'in the per,' in the per and cui,' and 'in the post.'

It followed that persons claiming under the propositus by feoffment or inheritance were said to be in the per,' while those claiming in any other manner, e. g., by the limitation of a use, as tenant in dower, as tenant by the curtesy, as the lord taking by escheat or forfeiture, as a recoveror, as a corporation sole taking on the death of his predecessor, were said to be ‘in the post.

It will be observed that, except in the case of the heir, the distinction is that persons in the per take by the act of the party at common law unassisted by Statute, while persons in the post take by operation of law without any act of the party, or by his act aided by Statute. I ought perhaps to add that I have been unable to find any authority as to the effect of a common law assurance other than a feoffment.

See as to all these points Co. Lit. 237 et seq., 2nd Inst. 153, Lincoln College's Case 3 Rep. 58 b. H. W. E.

Stonor v. Fowle, 13 App. Cas. 20, is a remarkable example of the way in which eminent judges may go wrong. The House of Lords in this case reverse the decision both of the Queen's Bench Division and of the Court of Appeal, and no careful reader can doubt that the decision of the House of

Lords is right and the judgments of the Courts below wrong. The difference of opinion, it should be noted, arose upon a question not of law but of fact. The inferior Courts held that a County Court judge had made an order for committal in respect of a possible future default in the payment of a debt. The House of Lords held that the order was for commitment in respect of a past default in payment of £20. On the one view of the facts the members of every court before whom the question came considered the order invalid. On the other view, with all but equal unanimity, they considered it valid. If the right to imprison for debt is to be retained it is most desirable that orders for commitment should not be set aside on frivolous or technical grounds. Whether the power to imprison for debt is to be retained depends on the answer to the enquiry whether it is desirable to increase a poor man's opportunity of buying on credit.

No case recorded in this quarter's reports has excited so much attention as the G. W. Ry. Co. v. Bunch, 13 App. Cas. 31. Mrs. Bunch's triumph over the company has been celebrated in every newspaper throughout the kingdom. It is useless therefore to recapitulate the facts of the law suit; it is worth while, however, noting one or two points which may escape lay readers. First, the G. W. Ry. Co. v. Bunch determines no principle of law whatever a passenger, whether male or female, who follows Mrs. Bunch's example may, it is likely enough, not achieve Mrs. Bunch's success. Secondly, the sole question for the House of Lords was whether the County Court judge, acting the part of a jury, could under any supposition find a verdict in favour of the plaintiff. Once let this principle be grasped and the decision of the House of Lords follows as an inevitable conclusion from the premises. The only point of view in which the case has any legal importance is the doubt it throws upon the judgment of the Court of Appeal in Bergheim v. The G. E. Ry. Co., 3 C. P. D. 221. The doubt seems to be reasonable, and companies may probably find their liability for loss of luggage placed in a carriage greater than they have hitherto supposed. Thirdly, admirers of Lord Bramwell-and among this class must be placed every lawyer and layman who respects honesty, vigour, common sense, and humour-must regret the extent to which his lordship is unconsciously becoming the advocate of every company. On grounds which in themselves are defensible enough, Lord Bramwell objects to the law of England with regard to the liability of employers, and appears to be incapable of fairly applying a principle of law which he believes to be unfair. Even if companies were always morally in the right his lordship's attitude would from a judicial point of view be unfortunate, but to defend the interests of corporations is not always the same thing as an 'effort for law and justice.' In these days, however, when sentiment is too often allowed to overrule honesty, the public will go on admiring or pardoning a judge whose worst fault is an invincible bias towards what he holds to be the cause of common fairness.

The judgment of the Court of Appeal in The Bernina, 12 P. D. 58, is briefly and decisively affirmed in the House of Lords, nom. Mills v. Armstrong, 13 App. Ca. 1. No attempt is made in the leading opinion, Lord Herschell's, to exhaust the subject of what is sometimes called 'contributory negligence of a third person;' nor can it be said that this is done by the opinion prepared by Lord Bramwell and relegated to a long footnote, though it is a sufficiently discursive one. And it seems desirable to be content for the present with observing that the supposed authority of Thorogood v.