eo

But, except in one case apparently, if the creditor is not a party to the judgment he is not bound by it. That case is where a judgment has been obtained defining the corpus of the estate, and therefore qualifying the title to the subject. For instance, a judgment as to servitude with a neighbouring proprietor would bind the estate and those taking it either under conveyance or under bond. "Exceptio rei judicatæ nocebit ei, qui in dominium ejus successit, qui judicio expertus est." In the same way, "exceptionem rei judicatæ a persona auctoris ad emtorem transire solere ;" and again, "Si egero cum vicino aquæ pluvia arcendæ, deinde alteruter nostrum prædium vendiderit, et emto agit, vel cum agatur, hæc exceptio nocet; sed de eo opere, quod jam erat factum, quum judicium acciperetur." The distinction above stated is probably the only way of reconciling the Roman texts as to singular successors with other statements as: nec in simili negotio res inter alios actas absenti praejudicare." The absent man is he who has not been cited to an action. In the same way, one heir is not bound by a judgment obtained against his co-heir. On the other hand, the following classification is given of those held to be eædem persona: "Hoc jure utimur ut ex parte actoris in exceptione rei judicatæ hae personæ continentur, quæ rem in judicium deducunt; inter hos erunt procurator, cui mandatum est, tutor, curator furiosi vel pupilli, actor municipum." The requisites of "eadem res" are stated by Paul to be "idem corpus, eadem causa petendi," and "eadem conditio personarum. And with regard to the second requisite, a very important distinction is stated between actions in rem and actions in personam. In the former, being a simple assertion of right to a subject, all causes of action were supposed to be included, and therefore apparently the dominium of the subject vindicated could never be again claimed by the pursuer of an action in rem. On the other hand, "quum eadem res ab eodem mihi debeatur, singulas obligationes singulae causae sequuntur, nec ulla earum alterius petitione vitiatur." This distinction would, if rigidly applied, considerably extend the operation of the exception, but its force seems to be modified by the following text from Paul: "qui in rem egisset, nec tenuisset, postea condicenti non obstare exceptionem rei judicatam." It will thus be seen that there is room for speculation as to the application of this exception, especially to the cases of transference of land and of moveables. There may be a class of judgments regarding rights in land which bind the whole of the public. There are certainly other questions which a bona fide purchaser is entitled to try over again. Cases of importance and delicacy may also be imagined to arise between sub-tenants or assignees and the landlord, where the principal tenant has tried a question, or between first and second mortgagees on an estate where the debtor has tried a question. One would suppose also that a judgment obtained by a superior, say on the construction of the clause of relief from public burdens, would bind all singular successors in the feu.

VOL. XVIII. NO. CCV.—JANUARY 1874.

B

Reviews.

De Jure Personarum: or A Treatise on the Roman Law of Persons, Intended for Students preparing for Examination. By W. H. RATTIGAN, M.A., Ph.D., of Lincoln's Inn, Barrister-at-Law, Author of "Leading Cases in Hindu Law," "The Hindu Law of Adoption," etc. London: Wildy & Sons, 1873.

THE multiplication in England of books on Roman law is a gratifying sign of the times. Their paucity was long a matter of reproach, now gradually being removed. For the last few years have seen some considerable additions to the literature of this branch of jurisprudential science; and though some of them had better not have seen the light, yet others, such as Sir Henry Maine's Ancient Law-which is just an historical sketch of the development of Roman law from the foundation of the city to the time of the classical jurists,-Lord Mackenzie's Studies, and Mr. Poste's Gaius (though not so much for the translation as for the notes), are in every respect creditable productions, and of good service to legal students.

It is for students, and as an aid to them in preparing for examination, that the book before us has been written. The author-who though only recently admitted to the English bar, has for years enjoyed a good position in India as a pleader, and has made himself favourably known by his contributions to the literature of Hindu law-is of opinion that the exposition of the Law of Persons given by Gaius and Justinian in the first books of their respective Institutes is insufficient, as "the student continually finds himself under the necessity of referring to one or other of the second, third, or fourth books, to complete what has been said in the first book concerning the capacity or disability of persons." He illustrates his meaning by reference to the case of a filiusfamilias. "The first book of the Institutes," he says, " shows that he is subject to the power of his father, who can appoint a tutor for him by testament if still under the age of puberty, and can transfer him by adoption. to another family; the second explains that the father possessed the right of making a pupillary substitution, of enjoying and disposing of his son's acquisitions, except in certain cases, and that the son could not be a witness of the testament of his father, nor exercise the right of making a testament himself before the age of puberty, and was the hæres necessarius of his father; the third rules that a son under power can enter into an obligation with others; while in the fourth we read that noxal actions were abolished by Justinian with reference to filiifamilias, and that a father could demand the production of a child subject to his power by means of an exhibitory interdict." To obviate the inconvenience attending such constant transitions from book to book of the Institutes, Mr.

Rattigan has set himself the task of writing a volume on the Law of Persons, which shall be "complete and perfect in itself," and which, he hopes, will "assist the student in the better understanding of the Jus Personarum of the Romans."

The design is excellent for a book of reference; not quite so suitable for one intended to display the "legitimæ scientiæ prima elementa." Gaius and Justinian, in the first books of their respective Institutes, confine themselves to an exposition of so much of the law of persons as could be understood without previous acquaintance with the leading principles of the law of property and real rights, obligations, succession, and judicial remedies; or, from another point of view, with so much of the former as was necessary for the apprehension of the latter. If the abilities and disabilities of each of the various conditions of persons to whom in turn Mr. Rattigan directs his attention-their abilities and disabilities in reference to property, obligation, succession, and judicial procedure, had fallen properly under the head of jus personarum, then what would have been left for exposition under the heads of Things and Actions, the two remaining branches of the institutional "triple division?" No doubt the question, " to what acts of the jus civile can a filiusfamilias, or a pupil, or a slave be a party?" is, thus stated, quite as much within the law of persons as this other one, "who can be parties to a stipulation?" is within the law of obligations. Indeed, as persons alone are the subjects of rights, and law exists for the purpose of defining and protecting those rights, there is room for the argument that all law falls within the scope of the jus personarum. But this was not the sense in which the phrase was used by the Roman institutional writers. They meant by it nothing more than the law determining the different conditions of persons; to which they appended the law of tutor and curator, in so far as it was capable of exposition in a general and abstract manner. The question how far each of the different. classes of persons was capable of acting within the different spheres of property, obligations, succession, and judicial procedure, they left to be considered under these several heads; being rightly of opinion that to say who could enter into a contract, make a will, or take up a succession, ought to follow and not precede the explanation of contractus, testamentum, and aditio respectively.

The propriety of the method of the Roman jurists is very obvious when we look at the results of that attempted by Mr. Rattigan. In his exposition of the different conditions of persons there is little to find fault with; he is within the safe guidance of Gaius and Justinian; and, although here and there a mistake occurs, yet he does his work completely and satisfactorily. Some of the chapters are particularly good; among them his contrast of agnation and cognation, his account of adoption, and his chapter on guardianship. But when he goes beyond the subject of the condition of the various classes of persons with whom he deals in order, and the causes to

which those different conditions were attributable and by which they were influenced-when he comes to describe the effects of those conditions in the relations of daily life-the weakness of his method becomes apparent. Not only are a great many of those effects overlooked, but those that are mentioned are often referred to in words so few and abstract as to convey no fair idea of their import to a reader not already acquainted with the other branches of the subject. And then, while far more than seems to be requisite for the student preparing for examination is said upon matters altogether out of the way, many questions of much practical and every-day importance are disposed of much too summarily. A large proportion of the population of the Empire were under subjection either as filiifamilias or slaves; and it is not too much to say that the greater part of the trading transactions of daily life were carried on through their instrumentality. According to the plan adopted by Mr. Rattigan, one would expect to find a full explanation of the extent of their powers as representatives of their paterfamilias, and of his responsibility for their acts. The few sentences devoted by him to those topics give no adequate idea of the state of the law upon them,-how far, for example, possession taken by a person in potestate would avail the family head for the purpose of interdict or prescriptive acquisition of property, or to what extent the latter was liable by actiones adjectitiae qualitatis for obligations incurred by those under his potestas. We are told by him that "a filiusfamilias could enter into obligations with others, which a slave could not do so as to bind himself;" but we are not told whether the filiusfamilias could be sued with any effect upon. his obligation, or how a judgment against him could be of any value, seeing he had no property of his own. We are told who were pupils, and have the subject of tutory very well explained ; but we are left in the dark as to the circumstances under which a pupil might oblige himself naturally though not civilly. These are but a few examples of the defects of which we complain, but which we fear are inevitable in a book which is to be of reasonable bulk, and yet to contain an exposition not only of the various conditions of persons and their causes, but also of their effects.

As already said, in so far as it does not go beyond the subjectmatter proper of the first books of Gaius and Justinian, the volume before us is on the whole satisfactory; the exposition is lucid, well arranged, and generally accurate. The contents, in the order of the chapters, are as follow:-1. the meaning of persona, the effect of birth, and the disabilities arising from sex, age, and physical or mental infirmities; 2. the influence of domicile, class or profession, religion, and relationship; 3. civil capacity for rights; 4. freeborn persons and freedmen; 5. persons sui vel alieni juris; 6. juridical persons; 7. marriage; 8. adoption; and 9. guardianship. Here and there Mr. Rattigan steps into the region of controversy; but in it we are bound to say he does not appear to advantage, and that through neglect of a

primary condition of success, namely, true apprehension of the opinion he is combating,-witness (p. 70) his complete misrepresentation of Savigny's theory of capitis deminutio. In matters beyond the jus personarum proper he is often much at fault. For example, in p. 129, his description of the requisites of a stipulation in the time of Justinian makes it in effect identical with a mere pact; on the same page he so entirely misunderstands the nature of a nomen transcriptitium as to describe it as a fictitious loan; and on p. 205 he is so far astray in his notion of Roman partnership as to speak of a "firm." Even within the more strictly legitimate limits of his subject he is not free from occasional serious error. For instance, on p. 5, he states that it was Justinian who first allowed bequests to collegia and charitable foundations; whereas there are numerous passages in the Digest which prove that the validity of such gifts was recognised as early as the time of Marcus Aurelius. On p. 122, he maintains that Caracalla's concession of citizenship to all his free subjects did not apply to Junian latins or dedititian freedmen, giving as his reason that we read of men of these classes long after the date of that enactment. Mr. Rattigan overlooks the consideration that the conditions referred to were respectively the result of irregular manumission and bad character of the slave manumitted, and that these causes would still continue to operate even though it be true--as it undoubtedly is that all the Junians and dedititians in existence at the moment of Caracalla's constitution thereby acquired the civitas. In regard to manumission, he says, on p. 146, that it could proceed only from a quiritarian owner; whereas it might equally be effected by a mere bonitarian owner, but with the qualification that the freedman thereby became not a civis but a latinus. In chapter vii. our author falls into the old mistake of describing confarreatio, coemptio, and usus as three forms of marriage. We had thought the notion had received its complete refutation with the discovery of the Verona palimpsest. These were the three modes of creating the peculiar relationship of manus; and it is under this head, and not under that of marriage, that they are dealt with by Gaius. Confarreatio, it is true, was simultaneously creative of both marriage and manus; but usus was impossible unless marriage had preceded its completion by at least a year; and a woman very often proceeded to coemptio not only with a man who might have been her husband for years, but even with one whom she had no intention of ever recognising in that character. In the same chapter we have other errors. Thus, how does Mr. Rattigan justify his statement that the marriage of a wife not in manu produced capitis deminutio? Is he serious in maintaining that in the later law marriage was not a consensual, but a real contract?-a position, we are aware, taken by some modern French jurists, but which was long ago shown to be untenable by their great countryman Jacques Godefroy. And surely it but serves to mislead when the suggestion