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Q. 6. What are the periods of limitation within which the principal kinds of action may be brought? When does the time of limitation begin to run in respect of a claim (1) on a promissory note payable on demand; (2) for money lent by means of a check not immediately presented for payment; (3) for damage to land resulting from a wrongful act committed some time before the damage arises or is discovered?
A. Actions for the recovery of land must be brought within twelve years after the time at which the right of action accrued; or, where the claimant's estate was originally an estate in remainder or reversion, within twelve years after the time when the right of action accrued to the owner of the preceding estate, or six years from the time when the claimant became entitled to the possession, whichever shall be the longer period. But where an acknowledgment in writing has been given of the title of the claimant, the time runs from the date of such acknowledgment. And where the claimant is under disability at the time the right of action accrues, a further period of six years is allowed from the time when the disability ceased, provided the action be bronght within thirty years from the accrual of the right (3 and 4 W. 4, c. 27; real property limitation act, 1876, 37 and 38 Vict., c. 57).
Actions on contracts under seal must be brought within twenty years from the time of the accrual of the right of action, or from the time of an acknowledgment in writing, or part payment of principal or payment of interest, made or given in the meantime; or where at the time of the accrual of the right the plaintiff was under disability of infancy, coverture, or lunacy, or the defendant was beyond seas, then within twenty years after such disability shall have ceased, or the defendant shall have returned from beyond seas (3 and 4 W. 4, c. 42).
Actions on simple contracts must be brought within six years after the accrual of the right of action; the period, however, being extended by an acknowledgment, or payment, or disability of the party entitled, or absence of the defendant beyond seas, in the same way as in the caso of a contract under seal (21 Jac. 1, c. 16; 9 Geo. 4, c. 14; 19 and 20 Vict., c. 97).
As regards actions of tort, the periods of limitations are, in an action for assault, battery, or false imprisonment, four years; for slander, two years; and for other torts in general, six years (21 Jac. 1, c. 16).
(1) From the date of the note; (2) from the date of the payment of the money; (3) from the date of the commission of the act, assuuning that it would have been actionable before the damage had arisen.
Q. 7. Distinguish the three principal classes of bailments. A stolen article is pawned, and afterwards sold by the pawnbroker as a forfeited pledge. Can he be made to refund the purchase money when the owner claims the article from the purchaser?
A. (1) Bailments by which the bailor alone is benefited, comprising bailments of goods to be kept or dealt with gratuitously by the bailee; (2) bailments from which the bailee alone derives benefit, viz, gratuitous loans; (3) bailments for the benefit of both bailor and bailee, comprising pledges of goods, letting and hiring of goods, and delivery of goods to be kept, or carried, or otherwise dealt with by the bailee for a reward.
In bailments of the first class the bailee is liable for gross negligence only, in the care of the goods; but if he possesses skill with reference to the sulyject-matter of the bailment, le is bound to use it. In bailments of the second and third classes the bailee is liable for any negligence. And by the common law a carrier is answerable as bailee of the goods carried by him for loss arising from any cause, except the act of God, or the king's enemies, or defects in the goods; and a similar liability attaches at common law to an inkeeper as bailee of his guests' goods. (Cogg8 v. Bernard, Ld. Raym., 909.)
The pawnbroker can not be made to refund the purchase money; for he is not presumed to sell as absolute owner, but only to sell such right to the pledge as he
himself has, and therefore there is no implied warranty of title on the sale. (Morley v. Attenborough, 3 Exch., 514.)
Q. 8. A bailiff, being ordered by a landlord to distrain on the demised premises, distrains a stranger's cattle on adjoining land, sells them, and pays the proceeds to the landlord. Can the owner of the cattle maintain an action against the landlord?
A. The owner of the cattle can maintain an action against the landlord if the latter has ratified the wrongful act of the bailiff. The receipt of the proceeds of the sale, however, would not in itself be a ratification, if the landlord did not know that the distress had been wrongfully made. And in the absence of ratification by the landlord, an action of tort can not be maintained against him. But the proceeds of the sale of the cattle can be recovered from the landlord by the owner as money belonging to him. (Freeman v. Rosher, 13 Q. B., 780.)
Q. 9. Point out the difference between the action for false imprisonment and malicious prosecution in respect to the onus of proof. Can an action be maintained under any circumstances (1) for having brought an action against the plaintiff; (2) for having put the bankruptcy law in motion against the plaintiff ; or (3) against a corporation in respect of the manager of the corporation having arrested and prosecuted the plaintiff?
A. In an action for false imprisonment the onus of proof is upon the defendant; for the detention of the plaintiff is prima facie illegal, and it lies upon the defendant to justify it. But in an action for malicions prosecntion the proceedings are prima facie legal, being in due course of law; and the burden of proving that they were instituted without reasonable cause, and were therefore improper, is upon the plaintiff.
(1) No; (2) Yes. An action (similar to an action for malicious prosecution) will lie for maliciously taking proceedings in bankruptcy. (3) Yes, if the acts of the manager were done by him in the course of his employment as the servant of the corporation. (Edwards v. Midland Railway Co., 6 Q. B. D., 287.)
Q. 10. A passenger from London to Paris finds on arrival at Paris that his box has been opened and the contents stolen somewhere en route. Can a man, found in possession of the stolen property in London be convicted in an English court?
A. No; unless it can be proved that the property was stolen within the jurisdiction of the English courts. (See Harris, Cr. L., 3d ed., 352–356.)
Q. 11. State shortly the mode of proceeding on a criminal charge falling within the summary jurisdiction of justices.
A. The mode of proceeding is as follows: At the hearing the substance of the information is stated to the defendant, and he is asked if he has any cause to show why he should not be convicted. If he admits the truth of the charge, and does not show cause why he should not be convicted, the court proceeds to convict. If he denies the truth of the charge, the court hears the parties and their witnesses (all the evidence being on oath) and proceeds to convict the defendant or else dismiss the information, as the case may require. (See Harris, Cr. L., 3d ed., 492.)
Q. 12. In what case can more than one offense be inquired into on the trial of an indictment?
A. Two or more offenses can be inquired into where all the offenses are misdemeanors. But a count for a felony can not, in general, be joined with a count for a misdemeanor. And, as a general rule, several different felonies can not be charged in the same indictment. To this rule, however, there are some exceptions. On an indictment for larceny a count for receiving stolen property may be added, and on an indictment for larceny or embezzlement several counts may be inserted for distinet acts of stealing or embezzlement, not exceeding three, committed within six months from the first to the last. And in certain cases, if the prisoner has been previously convicted, a count is added charging him with the previous conviction. (Harris, Cr. L., 3d ed., 342-314.)
ROMAN LAW.-PASS PAPER.
Q. 1. Scriptum jus est lex, plebiscita, senatusconsulta, principium placita, magistratuum edicta, responsa prodentium. Explain this passage.
A. By jus scriptum is meant law that has been committed to writing at its origin, as opposed to jus non scriptum, or law originating in custom (Austin, p. 529). In the Roman system jus scriptum existed in the several forms mentioned in the passage cited. Lex was a law passed in early times in the Comitia Curiata, and later in the Comitia Centuriata. Plebiscita were laws made in the Comitia Tributa. Senatus-consulta were laws made by the Senate. Principium placita were laws mado by the emperor in the exercise of his sovereign authority (imperium). Magistratuum edicta were collections of rules framed by such magistrates as had the jus edicendi, and chiefly by the prætor urbanus. Responsa prudentium were the opinions of such jurists as enjoyed the right of giving opinions that had the force of law (Inst. i, 2).
Q. 2. Distinguish agnates from cognates and illustrate the importance of the distinction.
A. Agnates were persons related to each other by the fact of subjection to the power of the same paterfamilias, or by there having been a person who would have been their common paterfamilias if he had been living. Cognates were persons related by blood. Hence, among agnates were included persons who, having been made subject to the patria potestas merely by adoption or arrogation, were not cognates; while cognates included the issue of female agnates and emancipated children, who were excluded from the class of agnates.
Agnatic relationship was attended with rights of succession on intestacy, to which cognates were not entitled, and with a liability to the office of tutor, from which cognates were free.
Q. 3. What was bonorum possessio? If A, being in possession of an immovable, die before the time required for usucapio has been completed, will the time that has already elapsed be reckoned in favor of a bonorum possessor?
A. Bonorum possessio was the succession to an inheritance under the provisions of the prætorian law, as opposed to succession by the jus civile. The rights of a successor by bonorum possessio were similar in all respects to those of the heir by the jus civile. Accordingly, in the case put in the question, the time that had elapsed would be reckoned in favor of a bonorum possessor, since he continues the persona of the deceased (Inst. ii, 6, 12).
Q. 4. Give an account of the will per as et libram and of the soldier's will.
A. The will per as et libram was, in effect, a conveyance of the testator's estate by the mode of transfer known as mancipatio. This was a conveyance made by fictitious sale in the presence of five witnesses and a balance holder (libripens). Originally the nominal purchaser of the testator's estate (familiæ emptor) was the heir, but afterwards, in order to avoid the inconveniences attending an irrevocable sale by the testator in his lifetime to his heir, the practice was adopted of employing, as familia emptor, a third person, to whom the sale was made merely for form's sake; a statement (nuncupatio) being made by the testator of the name of the heir and the other provisions of the will, either orally or in writing (Sand., 5th ed., 163).
A soldier on service could make a valid testament without observing the rules that applied to testaments generally. Thus no particula intention to make a testament and its terms might witn
sons might be instituted as heirs w
alities were required; the red by any writing or by enerally incapacitated; his children; his will than three-fourths of ly intestate; and his inutio. These privy while the soldier
was in actual service; and the informal testament remained in force only while the service continued and for one year after the testator's discharge.
Q. 5. A testator dies leaving a son and a grandson by a deceased daughter. He appoints his son heir, does not mention the grandson, and bequeaths all his property to a stranger. What is the effect of the will?
A. If there was not sufficient reason for the omission to appoint the grandson heir, or otherwise provide for him, he may have the will set aside as inofficiosum. (Inst. ii, 13, 3; ii, 18.) But if there was legal ground for the exclusion of the grandson, the will is valid; but under the Lex Falcidia, the son will be entitled, as heir, to onequarter of the estate, as against the legatee (Inst. ii, 22).
Q. 6. Explain and illustrate pratoriæ stipulationes, judiciales stipulationes, and communes stipulationes.
A. Prætoriæ stipulationes.-These were stipulations that in certain cases were made by order of the prætor, as a security for the performance by the promissor of some duty that was not enforceable directly by action. They included the stipulation damni infecti, by which a person who was owner of a building that was likely to fall down bound himself to make good any damage that should be done to his neighbor through the fall of the building; and the stipulation legatorum, by which an heir bound himself to pay a legacy, that was not immediately payable, when it should become due.
Judiciales stipulationes.—These were stipulations made by order of the judge in the course of judicial proceedings to secure the performance by the defendant of acts that might have to be done by him in order to give effect to the judgment; e. g., the stipulation de dolo, by which the defendant bound himself to carry out the sentence of the court without any attempt at fraud on his part; and the stipulation de persequendo servo qui in fuga est restituendove pretio, by which the promissor was bound to pursue a runaway slave who was the subject of the action, or pay his price.
Communes stipulationes were such as either the magistrate or the judge in an action might order to be made. Instances of these were the stipulation rem salvam fore pupilli, by which a tutor bound himself for the security of the pupil's property; and the stipulation de rato, by which a procurator bringing an action in the name of his principal undertook that what he did would be ratified by the principal. (Inst. III, 18.)
Q. 7. A slave, of whom Titius has the usufruct and belonging to Mævius, enters into a stipulation; discuss who will acquire the benefit of the contract.
A. If the stipulation had reference to the ordinary labors of the slave or to the property of Titius the benefit of the contract would be acquired by Titius; otherwise it would be acquired by Mævius. (Inst. III, 28, 1, 2.)
Q. 8. What is meant by obligationes que ex delicto nascuntur? Give examples. Can you suggest any reason why such obligationes were classified as res?
A. By obligationes quæ ex delicto nascuntur is meant obligations arising from violations of legal rights otherwise than by breach of contract, and which the early Roman law recognized as legal wrongs subject to special remedies by action. They comprised theft (furtum), robbery with violence (rapina), wrongful damage to property (damnum injuria), and wrongful damage to the person or reputation of a freeman (injuria).
These obligations were classified as res probably because the object of the obligation was the acquisition of a thing, viz., the sum payable by way of compensation for the wrong. Rights to the acquisition of things are distinguished generally in Roman law as res incorporales. (Inst. II, 2, 2.)
Q. 9. What were the various remedies open to the owner of a stolen article? A. The remedies were (1) the actio furti for the recovery of a penalty, which was four times the amount of the loss in the case of manifest theft and twice that amount in the case of nonmanifest theft; and (2) either a real action (rindicatio) for the recovery of the stolen propery or a personal action (condictio) for its value.
The owner, however, could not in general bring the actio furti where the thing, having been in the possession of another person, had been stolen from him; for as tlie latter was usually liable to the owner, and was therefore the party interested in the safety of the thing, it was he, and not the owner, who was entitled to sue for the penalty. But the other remedies belonged to the owner in every case. The real action for the recovery of the stolen article might be brought against the thiet or any other person in whose possession it might be; the personal action for the valuo could be brought only against the thief or his heirs. It was contrary to principle to allow the plaintiff the choice of either a real or a personal action, but in the case of stolen goods this was allowed in odio furum. (Inst. iv, 1.)
Q. 10. Translate with brief notes: Idem juris est, si rem sacram aut religiosam, quam humani juris esse credebat, vel publicam, quæ usibus populi perpetuo exposita sit, ut forum vel theatrum, vel liberum hominem, quem servum esse credebat, vel rem, cujus commercium non habuerit, vel rem suam dari quis stipuletur. Nec in pendenti erit stipulatio ob id quod publica res in privatum deduci et ex libero servul fieri potest et commercium adipisci stipulator potest et res stipulatoris esse desinere potest: sed protinus inutilis est. Item coutra, licet initio utiliter res in stipulatum deducta sit, si postea in earum qua causa de quibus supra dictum est, sine facto promissoris devenerit, extinguitur stipulatio. Ac nec statim ab initio talis stipulatio valebit “Lucium Titium, cum servus erit, dare spondes” et similia, quia quæ natura sui dominio nostro exempta sunt in obligationem deduci nullo moilo possunt.
A. “The rule is the same if a person stipulates for a thing sacred or religious which he thought to be the subject of commerce, or for a public thing appropriated to the use of the people in perpetuity, as a forum or theater, or for a freeman whom he thought to be a slave, or for a thing of which he has not the commercium, or for a thing belonging to himself. Nor will the stipulation remain in suspense on the ground that the public thing may become private, or the freeman may become a slave or the stipulator may acquire the commercium of the thing or the thing which now belongs to him may cease to be his; but the stipulation is at once void. So, conversely, although a thing may have been validly stipulated for originally, if it afterwards fall within the description of any of those things before mentioned without the fault of the promissor, the stipulation is extinguished. And such a stipulation as the following, and others of a similar class, are not valid even at the outset:
Do you bind yourself to give Lucius Titius when he shall become a slave?' for that which by its nature is independent of our ownership can not in any way be made the subject of an obligation."
(Inst. iii, 19, 1, 2.) A thing that was extra-commercium, or of which the stipulator had not the commercium, could not be the subject of a stipulation, even though the stipulator should be ignorant of the fact that the thing was of such a kind; and the stipulator had no remedy under the contract against the promissor. And no chango of circumstances could give validity to a stipulation that was originally, or subsequently became, void. (Sand., 5th ed., 338.)
EXAMINATION FOR STUDENTSIIPS.
GAIUS AND JUSTINIAN.
Q. 1. Examine the distinctions that have been made between correality and solidarity.
Q. 2. Account for the existence of infamia as a form of punishment, and state its consequences.
Q. 3. In what ways might suretyship be contracted! To what extent was the liability of the surety affected by the form of contract?
Q. 4. Give a brief sketch of the development of the Roman law of mortgage.
Q. 5. Explain the following: Antichresis, agrimensores, altius tollendi jus, arcarium nomen, actio recepticia, auctoratus, regula catoniana, dictio dotis.