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of experienced lawyers on the subject. This declaration (edictum) the prætor produced in albo, as the expression was. Modern civilians have made many conjectures on the real meaning of the above words; one of their suppositions, which is as likely to be true as any other, is, that the heads of new law remedies devised by the prætor, were written on a whitened wall by the side of his tribunal.

Among the provisions made by the Roman prætors in their capacity of judges of equity, may be mentioned those which they introduced in favour of emancipated sons, and of relatives by the women's side (cognati), in regard to the right of inheriting. Emancipated sons were supposed, by the laws of the Twelve Tables, to have ceased to be the children of their father, and, as a consequence, a legal claim was denied them on the paternal inheritance of the relatives by the woman's side no notice was taken in that article of the same laws which treated of the right of succession, mention being only made of relatives by the men's side (agnati). The former the prætor admitted, by the edict unde liberi, to share their father's (or grandfather's) inheritance with their brothers; and the latter he put in possession of the patrimony of a

kinsman deceased, by means of the edict unde cognati, when there were no relatives by the men's side. These two kinds of inheritance were not, however, called hæreditas, but only bonorum possessio; these words being very accurately distinguished, though the effect was in the issue exactly the same.

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In the same manner, the laws of the Twelve Tables had provided relief only for cases of theft; and no mention was made, in them, of cases of goods taken away by force (a deed which was not looked upon in so odious a light at Rome as theft, which was considered as the peculiar guilt of slaves). In process of time the prætor promised relief to such persons as might have their goods taken from them by open force, and gave them an action for the recovery of four times the value, against those who had committed the fact with an evil intention. Si cui dolo malo bona rapta esse dicentur, ei in quadruplum JUDI

CIUM DABO.

Again, neither the laws of the Twelve Ta bles, nor the laws made afterwards in the assemblies of the people, had provided remedies except for very few cases of fraud. Here the prætor likewise interfered in his capacity of judge of

equity, though so very late as the time of Cicero; and promised relief to defrauded persons,

in those cases in

which the laws in being

afforded no action.

Quæ dolo malo facta esse

dicentur, si de his

rebus alia actio non erit, et justa causa esse videbitur, JUDICIUM DABO.* By edicts of the same nature, prætors in process of time gave relief in certain cases to married women, and likewise to minors (minoribus xxv annis succurrit prætor, &c.†)

* At the same time that the prætor proffered a new edict, he also made public those peculiar formulæ by which the execution of the same was afterwards to be required from him. The name of that prætor who first produced the edict above-mentioned was Aquilius, as we are informed by Cicero, in that elegant story well known. to scholars, in which he relates the kind of fraud that was put upon Canius, a Roman knight, when he purchased a pleasure-house and gardens, near Syracuse in Sicily. This account Cicero concludes with observing, that Canius was left without remedy," as Aquilius, his colleague "and friend, had not yet published his formulæ concerning "fraud."-Quid enim faceret? nondum enim Aquilius, collega et familiaris meus, protulerat de dolo malo formulas. Off. III. 14.

+ The law collection, or system that was formed by the series of edicts published at different times by prætors, was called jus prætorium, and also jus honcrarium (not strictly binding). The laws of the Twelve Tables, together with all such other laws as had at any time been passed in the assembly of the people, were called, by way

The courts of equity established in England have in like manner provided remedies for a very great number of cases, or species of demand, for which the courts of common law, cramped by their forms and peculiar law tenets, can afford none. Thus, the courts of equity may, in certain cases, give actions for and against infants, notwithstanding their minority, and for and against married women, notwithstanding their coverture. Married women may even, in certain cases, sue their husbands before a court of equity. Executors may be made to pay interest for money that lies long in their hands. Courts of equity may appoint commissioners to hear the evidence of absent witnesses. When other proofs fail,

of eminence, jus civile. The distinction was exactly of the same nature as that which takes place in England between the common and statute laws, and the law or practice of the courts of equity. The two branches of the prætor's judicial office were very accurately distinguished; and there was, besides, this capital difference between the remedies or actions which he gave in his capacity of judge of civil law, and those in his capacity of judge of equity, that the former, being grounded on the jus civile, were perpetual, and were called actiones civiles, or actiones perpetuæ ; the latter were obliged to be preferred within the year, and were accordingly called actiones annuce or actiones prætoriæ.

they may impose an oath on either of the parties; or, in the like case of a failure of proofs, they may compel a trader to produce his books of trade. They may also confirm a title to land, though one has lost his writings, &c.

The power of the courts of equity in England, of which the Court of Chancery is the principal one, no doubt owes its origin to the power possessed by the latter, both of creating and issuing writs. When new complicated cases offered, for which a new kind of writ was wanted, the judges of Chancery, finding that it was necessary that justice should be done, and at the same time being unwilling to make general and perpetual provisions on the cases before them, by creating new writs, commanded the appearance of both parties, in order to procure as complete information as possible in regard to the circumstances attending the case; and then they gave a decree upon the same by way of experiment.

To beginnings and circumstances like these, the English courts of equity, it is not to be doubted, owe their present existence. In our days, when such strict notions are entertained concerning the power of magistrates and judges, it can scarcely be supposed that those courts, however useful, could gain admittance.

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