DETENTION. The act of retaining a person or property, and preventing
the removal of such person or property.
2. The detention may be occasioned by accidents, as, the detention of a ship
by calms, or by ice; or it may, be hostile, as the detention of persons or ships
in a foreign country, by order of the government. In general, the detention of a
ship does not change the nature of the contract, and therefore, sailors will be
entitled to their wages during the time of the detention. 1 Bell's Com. 517,
519, 5th ed.; Mackel. Man. §210.
3. A detention is legal when the party has a right to the property, and has
come lawfully into possession. It is illegal when the taking was unlawful, as is
the case of forcible entry and detainer, although the party may have a right of
possession; but, in some, cases, the (retention may be lawful, although the
taking may have been unlawful. 3 Penn. St. R. 20. When the taking was legal, the
detention may be illegal; as, if one borrow a horse, to ride from A to B, and
afterwards detain him from the owner, After demand, such detention is unlawful,
and the owner may either retake his property, or have an actiqn of replevin or
detinue. 1 Chit. Pr. 135. In some cases, the detention becomes criminal although
the taking was lawful, as in embezzlement.
DETERMINABLE. What may come to an end, by the happening of a
contingency; as a determnable fee. See 2 Bouv. Inst. n. 1695.
DETERMINABLE FEE. Also called a qualified or base fee, is one which
has a quality subjoined to it, and which must be determined whenever the
qualification annexed to it is at in end. A limitation to a man and his heirs on
the part of his father, affords an example of this species of estate. Litt.
§254; Co. Litt. 27 a, 220; 1 Prest. on Estates, 449; 2 Bl. Com. 109; Cruise, tit
1, §82; 2 Bouv. Inst; n., 1695.
DETERMINATE. That which is ascertained; what is particularly
designated; as, if I sell you my horse Napoleon, the article sold is here
determined. This is very different from a contract by which I would have sold
you a horse, without a particular designation of any horse. 1 Bouv. Inst. n.
DETERMINATION. The end, the conclusion, of a right or authority; as,
the determination of a lease. 1 Com. Dig. Estates by Grant, G 10, 11, and 12..
The determination of an authority is the end of the authority given; the end of
the return day of a writ determines the authority of the sheriff; the death of
the principal determines the authority of a mere attorney. By determination is
also understood the decision or judgment of a court of justice.
DETINET. He detains. Vide Debet et Detinet, and Detinuit.
DETINUE, remedies. The name of an action for the recovery of a
personal chattel in specie. 3 Bl. Com. 152; 3 Bouv. Inst. n. 3472; 1 J. J.
2. This action may be considered, 1. With reference to the nature of the
thing to be recovered. 2. The plaintiff's interest therein. 3. The injury. 4.
The pleadings. 5. The judgment.
3.- 1. The goods which it is sought to recover, must be capable of being
distinguished from all others, as a particular horse, a cow, &c., but not
for a bushel of grain. Com. Dig. Detinue, B, C; 2 Bl. Com. 152; Co. Litt. 286 b;
Bro. Det. 51. Detinue cannot be maintained where the property sued for had
ceased to exist when the suit was commenced. 2 Dana, 332. See 5 Stew. &
Port. 123; 1 Ala. R. 203.
4. - 2. To support this action, the plaintiff must have a right to immediate
possession, although he never had actual possession; a reversioner cannot,
therefore, maintain it. A bailee, who has only a special property, may
nevertheless support it when he delivered the goods to the defendant, or they
were taken out of the bailee's custody. 2 Saund. 47, b, c, d Bro. Ab. h. t.; 9
Leigh, R. 158; 1 How. Miss. R. 315; 5 How. Miss. R. 742; 4 B. Munr. 365.
5. - 3. The gist of the action is the wrongful detainer, and not the original
taking. The possession must have been acquired by the defendant by lawful means,
as by delivery, bailment, or. finding, and not tortiously. Bro. Abr. ])et. 53,
36, 21 1 Misso. R. 749. But a demand is not requisite, except for the purpose of
entitling the plaintiff to damages for the detention between the time of the
demand and that of the commencement of the action. 1 Bibb, 186; 4 Bibb, 340; 1
Misso. 9; 3 Litt. 46.
6. - 4. The plaintiff may declare upon a bailment or a trover; but the
practice, by the ancient common law, was to allege, simply, that the goods came
to the hands, &c., of the defendant without more. Bro. Abr. Det. 10, per
Littleton; 33 H. VI. 27. The trover, or finding, when alleged, was not
traversable, except when the defendant alleged delivery over of a chattel
actually found to a third person, before action brought, in excuse of the
detinue. Bro. Abr. Det. 1, 2. Nor is the bailment traversable, but the defendant
must answer to the detinue. Bro. Abr. Det. 50-1. In describing the things
demanded, much certainty is requisite, owing to the nature of the execution. A
declaration for "a red cow with a white face," is not supported by proof that
the cow was a yellow. or sorrel cow. 1 Scam. R. 206. The general issue is non
detinet, and under it special matter may be given in evidence. Co. Litt.
7. - 5. In this action the defendant frequently prayed garnishment of a third
person, whom he alleged owned or had an interest in the thing demanded; but this
he could not do without confessing the possession of the thing de-manded, and
made privity of bailment. Bro. Abr. Garnishment, 1; Interpleader, 3. If the
prayer of garnishment was allowed, a sci. fac. issued against the person named
as garnishee. If he made default, the plaintiff recovered against, the defendant
the chattel demanded, but no damages. If the garnishee appeared and the
plaintiff made default, the garnishee recovered. If both appeared, and the
plaintiff recovered; he had judgment against the defendant for the chattel
demanded, and a distringas in execution and against the garnishee a judgment for
damages, and a fi. fa. in execution. The verdict and judgment must be such, that
a special remedy may be had for the recovery of the goods detained, or a
satisfaction in value for each parcel, in case they, or either of them, cannot
be returned. Walker, R. 538 7 Ala. R. 189; 4 Yerg. R. 570 4 Monr. 59; 7 Ala. R.,
807.; 5 Miss. R. 489; 6 Monr. 52 4 Dana, 58; 3 B. Munr. 313; 2 Humph. 59. The
judgment is in the alternative, that the plaintiff recover the goods or the
value thereof, if he cannot have the goods themselves, and his damages. Bro.
Abr. Det. 48, 26, 3, 25; 4 Dana, R. 58; 2 Humph. 59; 3 B. Mont. 313, for the
detention and full costs. Vide, generally, 1 Chit. Pl. 117; 3 Bl. Com. 152; 2
Reeve's Hist. C. L. 261, 333,336; 3 Id. 66, 74; Bull. N. P. 50. This action has
yielded to the more practical and less technical action of trover. 3 Bl. Com.
DETINUIT, practice. He detained.
2. Where an action of replevin is instituted for goods which the defendant
had taken, but which he afterwards restored, it is said to be brought in the
detinuit; in such case the judgment is, that the plaintiff recover the damages
assessed by the jury for the taking and unjust detention, or for the latter
only, where the former was justifiable, and his costs. 4 Bouv. Inst. n. 3562. 3.
When the replevin is in the detinet, that he detains the goods, the jury must
find in addition to the above, the value of the chattels, (assuming they are
still detained, not in a gross sum, but each separate article must be separately
valued, for perhaps the defendant may restore some of them, in which case the
plaintiff is to recover the value of the remainder. Vide Debet et Detinet.
DEVASTAVIT. A devastavit is a mis-management and waste by an executor,
administrator, or other trustee of the estate and effects trusted to him, as
such, by which a loss occurs.
2. It takes place by direct abuse, by mal-administration, and by neglect.
3. - §1. By direct abuse. This takes place when the executor, administrator,
or trustee, sells, embezzles, or converts to his own use, the goods entrusted to
him; Com. Dig. Administration, I 1; releases a claim due to the estate; 8 Bac.
Abr. 700; Hob. 266; Cro. Eliz. 43; 7 John. R. 404; 9 Mass. 352; or surrenders a
lease below its value. 2 John. Cas. 376; 3 P. Wms. 330. These instances
sufficiently show that any wilful waste of the property will be considered as a
4. - §2. By mal-administration. Devastavit by mal-administration most
frequently occurs by the payment of claims which were not due nor owing; or by
paying others out of the order in which they ought to be paid; or by the payment
of legacies before all the, debts have been satisfied. 4 Serg. & Rawle, 394;
5 Rawle, 266.
5. - §3. By neglect. Negligence on the part of an executor, administrator, or
trustee, may equally tend to the waste of the estate, as the direct destruction
or mal-administration of the assets, and render him guilty of a devastavit. The
neglect to sell the goods at a fair price, within a reasonable time, or, if they
are perishable goods, before they are wasted, will be a devastavit. And a
neglect to collect a doubtful debt, which by proper exertion might have been
collected, will be so considered. Bac. Ab. Executors, L.
6. The law requires from trustees, good faith and due diligence, the want of
which is punished by making them responsible for the losses which may be
sustained by the property entrusted to them when, therefore, a party has been
guilty of a devastavit, he is required to. make up the loss out of his own
estate. Vide Com. Dig. Administration, I; 11 Vin. Ab. 306; 1 Supp. to Ves. jr.
209; 1 Vern. 328; 7 East, R. 257 1 Binn. 194; 1 Serg. & Rawle, 241 1 John.
R. 396; 1 Caines' Cas. 96 Bac. Ab. Executor, L; 11 Toull. 58, 59, n. 48.
DEVIATION, insurance, contracts. A voluntary departure, without
necessity, or any reasonable cause, from the regular and usual course of the
2. From the moment this happens, the voyage is changed, the contract
determined, and the insurer discharged from all subsequent responsibility. By
the contract, the insurer only runs the risk of the contract agreed upon, and no
other; and it is, therefore, a condition implied in the policy, that the ship
shall proceed to her port of destination by the. shortest and safest course, and
on no account to deviate from that course, but in cases of necessity. 1 Mood.
& Rob. 60; 17 Ves. 364; 3 Bing. 637; 12 East, 578.
3. The effect of a deviation is not to vitiate or avoid the policy, but only
to determine the liability of the underwriters from the time of the deviation.
If, therefore, the ship or goods, after the voyage has commenced, receive
damage, then the ship deviates, and afterwards a loss happen, there, though the
insurer is discharged from the time of the deviation, and is not answerable for
the subsequent loss, yet he is bound to make good the damage sustained previous
to the deviation. 2 Lord Raym. 842 2 Salk. 444.
4. But though he is thus disebarged from subsequent responsibility, he is
entitled to retain the whole premium. Dougl. 271; 1 Marsh. Ins. 183; Park. Ins.
294. See 2 Phil. Ev. 60, n. (b) where the American cases are cited.
5. What amounts to a deviation is not easily defined, but a departure from
the usual course of the voyage, or remaining at places where the ship is
authorized to touch, longer than necessary, or doing there what the insured is
not authorized to do; as, if the ship have merely liberty to touch at a point,
and the insured stay there to trade, or break bulk, it is a deviation. 4 Dall.
274 1 Peters' C. C. R. 104; Marsh. Ins. B. 1, c. 6, s. 2. By the course of the
voyage is not meant the shortest course the ship can take from her port of
departure to her port of destination, but the regular and customary track, if
such there be, which long us usage has proved to be the safest and most
convenient. 1 Marsh. Ins. 185. See 3 Johns. Cas. 352; 7 T. R. 162.
6. A deviation that will discharge the insurer, must be a voluntary departure
from the usual course of the voyage insured, and not warranted by any necessity.
If a deviation can be justified by necessity, it will not affect the contract;
and necessity will justify a deviation, though it proceed from a cause not
insured against. The cases of necessity which are most frequently adduced to
justify a departure from the direct or usual course of the voyage, are, 1st.
Stress of weather. 2d. The want of necessary repairs. 3d. Joining convoy. 4th.
Succouring ships in distress. 5th. Avoiding capture or detention. 6th. Sickness
of the master or mariner. 7th. Mutiny of the crew. See Park, Ins. c. 17; 1 Bouv.
Inst. n. 1187, et seq.; 2 John. Cas. 296; 11 Johns. R. 241; Pet. C. C. R. 98; 2
Johns. Rep. 89; 14 Johns. R. 315; 2 Johns. R. 138; 9 Johns. R. 192; 8 Johns.
Rep. 491; 13 Mass. 68 13 Mass. 539; Id. 118; 14 Mass. 12 1 Johns. Cas. 313; 11
Johns. R. 241; 3 Johns. R. 352; 10 Johns. R. 83; 1 Johns. R. 301; 9 Mass. 436,
447; 3 Binn. 457 7 Mass. 349; 5 Mass. 1; 8 Mass. 308 6 Mass. 102 121 6 Mass. 122
7 Cranch, 26; Id. 487; 3 Wheat. 159 7 Mass. 365; 10 Mass. 21 Id. 347 7 Johns.
Rep. 864; 3 Johns. R. 352; 4 Dall. R. 274 5 Binn. 403; 2 Serg. & Raw. 309; 2
DEVIATION, contracts. When a plan has been adopted for a building, and
in the progress of the work a change has been made from the original plan, the
change is called a deviation.
2. When the contract is to build a house according to the original plan, and
a deviation takes place, the contract shall be traced as far as possible, and
the additions, if any have been made, shall be paid for according to the usual
rate of charging. 3 Barn. & Ald. 47; and see 1 Ves. jr. 60; 10 Ves. jr. 306;
14 Ves. 413; 13 Ves. 73; Id. 81 6 Johns. Ch. R. 38; 3 Cranch, 270; 5 Cranch,
262; 3 Ves. 693; 7 Ves. 274; Chit. Contr. 168; 9 Pick. 298.
3. The Civil Code of Louisiana, art. 2734, provides, that when an architect
or other workman has undertaken the building of a house by the job, according to
a plot agreed on between him and the owner of the ground, he cannot claim an
increase of the price agreed on, on the plea of the original plot having been
changed and extended, unless he can prove that such changes have been made in
compliance with the wishes of the proprietor.
DEVISAVIT VEL NON, practice. The name of an issue sent out of a court
of chancery, or one which exercises chancery jurisdiction, to a court of law, to
try the validity of a paper asserted and denied to be a will, to ascertain
whether or not the testator did devise, or whether or not that paper was his
will. 7 Bro. P. C. 437; 2 Atk. 424; 5 Barr, 21.
DEVISE. A devise is a disposition of real property by a person's last
will and testament, to tale effect after the testator's death.
2. Its form is immaterial, provided the instrument is to take effect after
the death of the party; and a paper in the form of an indenture, which is to
have that effect, is considered as a devise. Finch. 195 6 Watts, 522; 3 Rawle,
15; 4 Desaus. 617, 313; 1 Mod. 117; 1 Black. R. 345.
3. The term devise, properly and technically, applies only to real estate the
object of the devise must therefore be that kind of property. 1 Hill. Ab. ch.
36, n. 62 to 74. Devise is also sometimes improperly applied to a bequest or
legacy. (q. v.) Vide 2 Bouv. Inst. n. 2095, et seq; 4 Kent, Com. 489 8 Vin. Ab.
41 Com. Dig. Estates by Devise.
4. In the Year Book, 9 H. VI. 24, b. A. D. 1430, Babington says, the nature
of a devise, when lands are devisable, is, that one can devise that his lands
shall be sold by executors and this is good. And a devise in such form has
always been in use. And so a man may have frank tenement of him who had nothing,
in the same manner as one may have fire from a flint, and yet there is no fire
in the flint. But it is to perform the last will of the devisor.
DEVISEE. A person to whom a devise has been made.
2. All persons who are in rerum natura, and even embryos, may be devisees,
unless excepted by some positive law. In general, he who can acquire property by
his labor and industry, may receive a devise. C. & N. 353.
DEVISOR. A testator; one, who devises his real estate.
2. As a general rule all persons who. may sell an estate may devise it. The
disabilities of devisors may be classed, in three divisions. 1. Infancy. In some
of the United States this disability is partially removed; in Illinois,
Maryland, Mississippi and Ohio, an unmarried woman at the age of eighteen years
may devise. 2. Coverture. In general, a married woman cannot devise; but in.
Connecticut and Ohio she may devise her lands; and in Illinois, her separate
estate. In Louisiana, she may devise without the consent of her hushand. Code,
art. 132. 3. Idiocy and non sane memory. It is evident that a person non compos
can make no devise, because he has no will.
3. The removal of the disability which existed at the time of the devise
does, not, of itself, render it valid. For example, when the hushand dies, and
the wife becomes a feme sole; when one non compos is restored to his sense; and
when an infant becomes of age; these several acts do not make a will good, which
at its making was void. 11 Mod. 123, 157; 2 Vern . 475; Comb, 84; 4 Rawle, R.
3.36. Vide. Testament or ill.
DEVOIR. Duty. It is used in the statute of 2 Ric. II., c. 3, in the
sense of duties or customs.
DEVOLUTION, eccl. law. The transfer, by forfeiture, of a right and
power which a person has to another, on account of some act or negligence of the
person who is vested with such right or power: for example, when a person has
the right of preseptation, and he does not present within the time prescribed,
the right devolves on his next immediate superior. Ayl. Par. 331.
DI COLONNA, mar. contracts. This contract tales place between the
owner of a ship, the captain and the mariners, who agree that the voyage shall
be for the benefit of all. This is a term used in the Italian law. Targa, oh.
36, 37: Emerigon, Mar. Loans, s. 5.
2. The New England whalers are owned and navigated in this manner, and under
this species of contract. The captain and his mariners are all interested in the
profits of the voyage in certain proportion, in the same manner as the captain
and crew of a privateer, according to the agreement between them. Such
agreement, being very common in former times, all the mariners and the masters
being interested in the voyage. It is. necessary to know this, in order to
understand many of the provisions of the laws of Oleron, Wishuy, the Consolato
del Mare, and other ancient codes of maritime and commercial law. Hall on Mar.
TO DICTATE. To pronounce word for word what is destined to be at the
same time written by another. Merlin Rep. mot Suggestion, p. 5 00; Toull. Dr.
Civ. Fr. liv. 3, t. 2, c. 5, n. 410.
DICTATOR, civil law. A Magistrate at Rome invested with absolute
power. His authority over the lives and fortunes of the citizens was without
bounds. His office continued but for six months. Hist. de Ia Jur. h. t.; Dig. l,
2, 18; Id. 1, 1, 1.
DICTUM, practice. Dicta are judicial opinions expressed by the judges
on points that do not necessarily arise in the case.
2. Dicta are regarded as of little authority, on account of the manner in
which they are delivered; it frequently happening that they are given without
much reflection, at the bar, without previous examination. "If," says Huston,
J., in Frants v. Brown, 17 Serg. & Rawle, 292, "general dicta in cases
turning on special circumstances are to be considered as establishing the law,
nothing is yet settled, or can be long settled." "What I have said or written,
out of the case trying," continues the learned judge, "or shall say or write,
under such circumstances, maybe taken as my opinion at the time, without
argument or full consideration; but I will never consider myself bound by it
when the point is fairly trying and fully argued and considered. And I protest
against any person considering such obiter dicta as my deliberate opinion." And
it was considered by another learned judge. Mr. Baron Richards, to be a "great
misfortune that dicta are taken down from judges, perhaps incorrectly, and then
cited as absolute propositions." 1 Phillim. Rep. 1406; S. C. 1 Eng. Ecc. R. 129;
Ram. on Judgm. ch. 5, p. 36; Willes' Rep. 666; 1 H. Bl. 53-63; 2 Bos. & P.
375; 7 T. R. 287; 3 B. & A. 341; 2 Bing. 90. The doctrine of the courts of
France on this subject is stated in 11 Toull. 177, n. 133.
3. In the French law, the report of a judgment made by one of the judges who
has given it, is called the dictum. Poth. Proc. Civ. partie 1, c. 5, art. 2.
DIES. A day. There are four sorts of days: 1. A natural day; as, the
morning and the evening made the first day. 2. An artificial day; that is, from
day-break until twilight in the evening. 3. An astrological day, dies
astrologicus, from sun to sun. 4. A legal day, which is dies juridicus, and dies
non juridicus. 1. Dies juridici, are all days given in term to the parties in
court. Dies non juridici are those which are not appointed to do business in
court, as Sundays, and the like. Dies in banco, days of appearance in the
English court of common bench. 3 Bl. Com. 276. Vide Day, and 3 Com. Dig.
DIES DATUS, practice. A day or time given to a defendant in a suit,
which is in fact a continuance of the cause. It is so called when given before a
declaration; when it is allowed afterwards it assumes the name of imparlance.
DIES NON or DIES NON JURIDICI. Non-judicial days. Days during which
courts do not transact any business, as Sunday. The entry of judgment upon such
a day is void. W . Jones, 156.
DIET. An assembly held by persons having authority to manage the
public affairs of the nation. In Germany, such assemblies are known by this
DIFFERENCE. A dispute, contest, disagreement, quarrel.
DIGEST, civil law. The name sometimes given to the Pandects of
Justinian; it is so called because this compilation is reduced to order, quasi
2. It is an abridgment of the decisions of the praetors and the works of the
learned, and ancient writers on the law. It was made by order of the emperor
Justinian, who, in 530, published an ordinance entitled De Conceptione
Digestorum, which was addressed to Tribonian, and by which he was required to
select some of the most distinguished lawyers to assist him in composing a
collection of the best decisions of the ancient lawyers, and compile them is
fifty books, without confusion or contradiction. The work was immediately
commenced, and completed on the 16th of December, 533.
3. The Digest is divided in two different ways; the first, into fifty books,
each book into several titles, and each title into several laws at the head of
each of them is the name of the lawyer from. whose work it was taken.
4. - 1. The first book contains twenty-two titles; the subject of the first
is De justicia et jure; of the division of person and things; of magistrates,
5. - 2. The second, divided into fifteen titles, treats of the power of
magistrates and their jurisdiction; the manner of commencing suits; of
agreements and compromises.
6. - 3. The third, composed of six titles, treats of those who can and those
who cannot sue; of advocates and attorneys and syndics; and of calumny.
7. - 4. The fourth, divided into nine titles, treats of causes of restitution
of submissions and arbitrations; of minors, carriers by water, innkeepers and
those who have the care of the property of others.
8. - 5. In the fifth there are six titles, which. treat of jurisdiction and
9. - 6. The subject, of the sixth, in which there are three titles, is
10. - 7. The seventh, in nine titles, embraces whatever concerns usufructs,
personal servitudes, babitations, the uses of real estate, and its
appurtenances, and of the sureties required of the usufructuary.
11. - 18. The eighth book, in six titles, regulates urban and rural
12. - 9. The ninth book, in four titles, explains certain personal
13. - 10. The tenth, in four titles, treats of mixed actions.
14.-11. The object of the eleventh book, containing eight titles, is to
regulate interrogatories, the cases of which the judge was to take cognizance,
fugitive slaves, of gamblers, of surveyors who made false reports, and of
funerals and funeral expenses.
15. - 12. The twelfth book, in seven titles, regulates personal actions in
which the plaintiff claims the title of a thing.
16. - 13. The thirteenth, treats of certain particular actions, in seven
17. - 14. This, like the last, regulates certain actions: it has six
18. - 15. The fifteenth, in four titles, treats of actions for which a father
or master is liable, in consequence of the acts of his children or slaves, and
those to which he is entitled; of the peculium of children and slaves, and of
the actions on this right.
19.-16. The sixteenth, in three titles, contains the law. relating to the
senatus consultum velleianum, of compensation or set off, and of the action of
20. - 17. The seventeenth, in two titles, expounds the law of mandates and
21. - 18. The eigbteenth book, in seven titles, explains the contract of
22. - 19. The nineteenth, in five titles, treats of the actions which arise
on a contract of sale.
23. - 20. The law relating to pawns, hypothecation, the preference among
creditors, and subrogation, occupy the twentieth book, which contains six
24. - 21. The twenty-first book, explains under three titles, the edict of
the ediles relating to the sale of slaves and animals; then what relates to
evictions and warranties.
25. - 22. The twenty-second treats of interest, profits and accessories of
things, proofs, presumptions, and of ignorance of law and fact. It is divided
into six titles.
26. - 23. The twenty-third, in five titles, contains the law of marriage, and
its accompanying agreements.
27. - 24. The twenty-fourth, in three titles, regulates donations between
hushand and wife, divorces, and their consequence.
28. - 25. The twenty-fifth is a continuation of the subject of the preceding.
It contains seven titles.
29. - 26 and 27. These two books, each in two titles, contain the law
relating to tutorship and curatorship.
30. - 28. The twenty-eighth, in eight titles, contain's the law on last wills
31. - 29. The twenty-ninth, in seven titles, is the continuation of the
32. - 30, 31, and 32. These three books, each divided into two titles,
contain the law of trusts and specific legacies.
33. - 33, 34, and 35. The first of these, divided into ten titles; the
second, into nine titles; and the last into three titles, treat of various kinds
34. - 36. The thirty-sixth, containing four titles, explains the senatus
consultum trebellianum, and the time when trusts become due.
35. - 37. This book, containing fifteen titles, has two objects first, to
regulate successions; and, secondly, the respect which children owe their
parents, and freedmen their patrons.
36. - 38. The thirty-eighth book, in seventeen titles, treats of a variety of
subjects; of successions, and of the degree of kindred in successions; of
possession; and of heirs.
37. - 39. The thirty-ninth explains the means which the law and the prAEtor
take to prevent a threatened iNjury; and donations inter vivos and mortis
38. - 40. The fortieth, in sixteen titles, treats of the state and condition
of persons, and of what relates to freedmen and liberty.
39. - 41. The different means of acquiring and losing title to property, are
explained in the forty-first book, in ten titles.
40. - 42. The forty-second, in eight titles, treats of the res judicata, and
of the seizure and sale of the property of a debtor.
41. - 43. Interdicts or possessory actions are the object of the forty-third
book, in three titles.
42.-44. The forty-fourth contains an enumeration of defences which arise in
consequence of the resjudicata, from the lapse of time, prescription, and the
like. This occupies six titles; the seventh treats of obligations and
43. - 45. This speaks of stipulations, by freedmen, or by slaves. It contains
only three titles.
44. - 46. This book, in eight titles, treats of securities, novations, and
delegations, payments, releases, and acceptilations.
45. - 47. In the forty-seventh book are explained the punishments inflicted
for private crimes, de privates delictis, among which are included larcenies,
slander, libels, offences against religion, and public manners, removing
boundaries, and other similar offences.
46. - 48. This book treats of public crimes, among which are enumerated those
Iaesae majestatis, adultery, murder, poisoning, parricide, extortion, and the
like, with rules for procedure in such cases.
47. - 49. The forty-ninth, in eighteen titles, t reats of appeals, of the
rights of the public treasury, of those who are in captivity, and of their
48. - 50. The last book, in seventeen titles, explains the rights of
municipalities. and then treats of a variety of public officers.
49. Besides this division, Justinian made another, in which the fifty books
were divided into seven parts: The first contains the first four books; the
second, from the fifth to the eleventh book inclusive; the third, from the
twelfth to the nineteenth inclusive; the fourth, from title twentieth to the
twenty-seventh inclusive; the fifth, from the twenty-eighth to the thirty-sixth
inclusive the sixth, commenced with the thirty seventh, and ended with the
forty-fourth book; and the seventh or last was composed of the last six
50. A third division, which, however, is said not to have been made by
Justinian, is in three parts. The first, called digestum vetus, because it was
the first printed. It commences with the first book, and. includes the work to
the end of the second title of the twenty-fourth book. The second, called
digestum infortiatum, because it is supported or fortified by the other two, it
being the middle; it commences with the begining of the third title of the
twenty-fourth book and ends with the thirty-eighth. The third, which begins with
the thirty-ninth book and ends with the work, is called digestum novum, because
it was last printed.
51. The Digest, although, compiled in Constantinople, was originally written
in Latin, and afterwards translated into Greek.
52. This work was lost to all Europe during a considerable period, as indeed
all the law works of Justinian were, except some fragments of the Code and
Novels. During the pillage of Amalphi, in the war between the two soi-disant
popes Innocent II. and Anaclet II., a soldier discovered an old manuscript,
which attracted his attention by its envelope of many colors. It was carried to
the emperor, Clothaire II., and proved to be the Pandects of Justinian. The work
was arranged in its present order by Warner, a German, whose name, Latinised, is
Irnerius, who was appointed professor of Roman law at Bologna, by that emperor.
1 Fournel, Hist. des Avocats, 44, 46, 51.
53. The Pandects contain all whatsoever Justinian drew out of 150,000 verses
of the old books of the Roman law. The style of the Digest is very grave and
pure, and differs not much from the eloquentist speech that ever the Romans
used." The learning of the digest stands rather in the discussing of subtle
questions of law, and enumeratious of the variety of opinions of ancient lawyers
thereupon, than in practical matters of daily use. The Code of Justinian differs
in these respects from, the Digest. It is less methodical, but more practical;
the style however, is a barbarous Thracian phrase Latinised, such as never any
mean Latinist spoke. The work is otherwise rude and unskilful. Ridley's View of
the Civ. & Ecc. Law, pt. 1, ch. 2, §1, and ch. 1, §2.
54. Different opinions are entertained upon the merits of the Digest, or
Pandects, Code, Authentics and Feuds, as a system of jurisprudence. By some it
has been severely criticised, and even harshly censured, and by others as warmly
defended the one party discovering nothing but defects, and the other as
obstinately determined to find nothing but what is good and valuable. See
Felangieri della Legislazione, vol. 1, c. 7. It must be confessed that it is not
without defects. It might have been comprehended in less extent, and in some
parts arranged in better order. It must be confessed also that it is less
congenial as a whole, with the principles of free government, than the common
law of England. Yet, with all these defects, it is a rich fountain of learning
and reason; and of this monument of the high culture and wisdom of the Roman
jurists it may be said, as of all other works in which the good so much
surpasses the bad.
Ut plura intent in carmine non ego paucis
Offendar maculis, quas aut incuria fudit
Aut humana parum cavit natura.
HORAT. ART. POETIC, v. 351.