are many who are lawyers only in name; but they are either such as do not affect to practice at all, or such as have at all events attempted to master the principles of law, though their intellect unfits them for its arduous requirements. At Rome, however, an advocate might boast, like Antony, of his ignorance of law, without any loss of employment or reputation. He might, perhaps, like Hipsæus, strenuously exert himself to get his client nonsuited; or, like Octavius, complain of the mistakes in the case of his opponent, as though that were a hardship upon him, not seeing that the effect was to secure a verdict in his own favor. When such suicidal conduct was exhibited, well might Cicero exclaim, "What can be conceived more disgraceful, than that a man, who professes to be able to undertake the causes of his friends, and assist those who are in difficulty, and throw the shield of his protection over the weak, should so blunder in the easiest and most trifling cases, as to appear to some an object of pity, to others of contempt " (Cic. de Orat. i. 37)?

It will be interesting to see the kind of cases requiring a more technical knowledge of law, in which these advocates of the olden time used to be engaged. There is little doubt that if there existed such a thing as a volume of reports of cases, such as were decided every day by the ordinary tribunals at Rome, we should obtain a much better knowledge of the manners, customs, and ordinary life of the Romans than we now possess. We should there see the citizen in his private life, buying and selling in the market and on the corn exchange, quarreling with his neighbors for interfering with his windows, refusing to be bound by contracts through fraud or inability to fulfill them, and acting the same drama which is daily exhibited in our courts.

Let us take, for instance, the case of the Roman soldier, who was serving with the army in a distant province when news of his death reached his father at Rome.

THE CASE OF COPONIUS

"Roland the brave, the brave Roland

False tidings reach'd his native strand,
That he was slain in fight."

Believing that his son was no more, the latter altered. his will, and named therein another as his heir. He died soon after, and when his son returned from the campaign, and made his appearance at home, he found a strangert in possession of his inheritance. He commenced an action in the court of the Centumvirs; and the judges had to determine the question whether a son could be disinherited, without express words to that effect in a will. The opportunity of arguing this point first brought Lord Eldon, then Mr. Scott, into notice (Ackroyd v. Smithson, I Bro. Ch. Cas. 503).

One of the causes célèbre, before the time of Cicero, was that of Coponius against Curius, in which Crassus, who affected to despise legal knowledge, was opposed to Scævola, the most learned lawyer of his day in Rome. Coponius, when on his death-bed, thinking that his wife was pregnant, made a will, in which he named as his heir the child to whom he expected she would give birth, provided it were a son; but directed that in case his posthumous son should die before he attained his majority (as we should say), then M. Curius was to be his heir. Coponius died, and his widow proved not to be. pregnant.

Upon this M. Coponius, who was the heir at law' of 1 Cic. de Orat. i. 38. According to the English law, a false reason given for revoking a legacy prevents the revocation from taking effect. Thus, where a man assigns, in his codicil as a reason for revoking the legacies given by his will, that the legatees were dead, which turned out not to be the fact, it was held to be no revocation, the reason being false. Campbell v. French, 3 Ves. 321. But where a woman, having given by her will £300 to the children of A., left by a codicil to B. the £300 previously designed for A.'s children, on the ground that she "knew not whether any of them were alive, and if they were well provided for;" the revocation was held to be effectual, for the Court would not inquire whether the first-named legatees were well provided for or not. Att. Gen. v. Ward, 3 Ves. 327.

Agnatus mortui. It must be borne in mind that the Roman law made

the deceased, claimed the property of which Curius had taken possession, and brought an action (of ejectment?) in the court of the Centumvirs against Curius, who asserted his right under the will. Scævola was counsel for Coponius, and Crassus for Curius. The plaintiff contended that the words of the will ought to be literally construed, and that it contained a condition precedent which had not been fulfilled. Curius was only to succeed as heir on a certain specified event happening, namely, the death of a posthumous son before attaining his majority; but if no son was born, there was no period at which Curius could take. Scævola further insisted that the defendant had been nominated in the will guardian of the infant, whose birth was expected and presupposed; and that he had, as we should say, a remainder limited, contingent upon the infant's not attaining its majority. But what title had he, if the contingency was rendered impossible by reason of there being no son?

Crassus, on the other hand, ridiculed these legal technicalities, contending that the will ought to be con strued fy pres, that is, as nearly according to the intention of the testator as possible, and argued that the intention here clearly was to make Curius his heir in case he had no son. He enforced this view of the case with so much wit, that the trial, which promised to be a very dull affair, became lively and amusing; and the result was, that Curius had the verdict in his favor.

The case of Auratas against Gratidian involved the consideration how far the principle of caveat emptor applied in a sale of real property. Here Crassus was counsel for the plaintiff, and Antony for the defendant. Gratidian had resold to Auratas some premises which he had originally purchased from him, and which were sub

no distinction between realty and personalty; and therefore the personal representative of the deceased was his heir at law.

CAVEAT EMPTOR.

99

ject to certain easements' in third parties, which fact he did not communicate at the time of the resale. The vendee, therefore, sought to recover damages equal to the amount by which the marketable value of the property was thereby diminished. It would seem, however, from Cicero's account, that Auratas was aware of the existence of these easements when he conveyed the property to Gratidian, and therefore we can hardly imagine on what ground he could expect damages for the concealment of a defect which was notorious to himself. The doctrine of the English law on this subject is expressed in the following maxim :-Caveat emptor, qui ignorare nondebuit, quod jus alienum emit. But the application of the rule is by no means easy. If there is no express warranty, the question in each case is, whether one can be implied by law. In a sale of chattels every affirmation made by the seller, at the time of the sale, amounts to a warranty, provided it be so intended. In the case of a sale or lease of houses or lands, there is no implied warranty on the part of the vendor that they are or shall be fit for habitation. Nor is there an implied warranty that a vendor has a good title to the property. A distinction is recognized in the English law between a warranty and a representation. The former becomes. part of the contract; the latter is collateral to it, and it frequently is very difficult to determine how far it is binding upon the party making it, so as to give the vendee a right of action if it turns out to be untrue. It is a general rule that simplex commendatio non obligat; a vendor has a right to recommend his own wares, and thereby invite custom ;-and in the case, therefore, of a purchase without warranty, a man's own natural sagacity and common sense must be his protection. But if the representation be made with intent to deceive, this amounts to fraud, and gives a purchaser a right of action.

1 Servitutes. The term in our law most nearly approaching this is eases ments; but it is not quite equivalent.

The liability of a vendor was in another instance sought to be extended beyond what either law or common sense could justify. Bucculeius, a Roman lawyer, who, as Cicero tells us, had a remarkably good opinion of himself, sold a house to Fufius, which commanded a good prospect over the city. By-and-by some buildings were erected in a distant quarter of the town, which interrupted the view from the windows in that direction; and Fufius, imagining that his enjoyment of light was thereby improperly diminished, brought an action, not against the party whose act had caused the annoyance by interfering with his "ancient lights," but against Bucculeius the vendor.

Another interesting question, involving the law of marriage and divorce, is mentioned by Cicero. A citizen of Rome had been resident for a time with his wife in Spain, and having occasion to return to Italy he left her behind him in a state of pregnancy. When he arrived in Rome the faithless husband remained there, and married another lady, without giving to his existing wife that notice of his intention to dissolve the marriage which the law required. Not long afterwards he died intestate, and each of the women whom he had married gave birth to a posthumous son. The question was, which of these two was legitimate, and therefore entitled to succeed as heir to the father's property? And this depended upon whether the contracting a new marriage ipso facto dissolved a prior one, without the intervention of any of the formalities of a divorce, and without any notice being given.' If so, then, according

The ordinary forms of divorce were by diffarreatio and remancipatio; but in later times it seems that a mere notice of an intention to separate was sufficient. The first instance of divorce at Rome was said to be that by which Sp. Carvilius Ruga put away his wife, B. C. 234, because she had borne him no offspring.-Aul. Gell. iv. 3, xvii. 21. The ladies appear to have had a similar privilege; for Cicero mentions Paula Valeria as waiting for the return of her husband from his provincial government, in order to serve him with notice of divorce.-Ep. ad Fam. viii. 7.