Divisions of actions. the right, and sometimes the judicium, the proceedings by which the judge determined the right, were spoken of as if formula, judicium, and actio were synonymous terms. Under the system of formule there were many divisions of actions, according to the form which the right given by the magistrate assumed. The most important division, perhaps, was that into actions in rem and in personam.* If the object of the proceedings was to enforce a right to a thing then the formula ran si paret hominem Auli Agerii esse; if to enforce an obligation, then the formula ran si paret Numerium Negidium Auli Agerii dare oportere; and it was according to this difference in the intentio that actions were said to be in rem or in personam. Vindicatio came to be used as a generic term for actions in rem, and condictio for actions in personam. Another important division was that of actiones in jus concepto and in factum conceptæ.† In the former, the judge had to decide whether the claim of the plaintiff was legally just; in the latter, whether a particular fact was true. If it were true, then the magistrate directed the judge to pronounce a particular sentence, and by this means many claims were enforced which by the letter of the law were not valid. In an actio in jus concepta the judge was directed to enquire, for instance, whether according to the usual rules of law, a valid contract had been made. In an actio in factum concepta, he was directed to enquire whether Aulus Agerius did a particular thing; if he did, the magistrate making the law for a particular case, provided what was to be the consequence. Another division of action separated those which were established by law or precedent for the enforcement of some particular right (directa) from the utiles, that is, those which, by an extension of the directe, embraced cases analogous to, but not among those to which the directæ applied. Sometimes, again, actions were said to be stricti juris,§ when the judge *GAIUS, iv. i. + GAIUS, iv. 37, 45, 47. was to decide rigidly according to the letter of the law, as opposed to those bona fidei, in which he was to allow his decision to be affected by equitable considerations, the nature of the case determining whether one or the other kind of action was appropriate. There are also numberless other divisions of actions, into which it is unnecessary to enter here; one species, however, the actiones arbitrariæ,* deserves a passing notice. In these actions the judge had the power of calling on the defendant to give such compensation to the plaintiff as he might think fit to direct. They were, therefore, especially adapted to secure a plaintiff receiving the particular thing which had been the subject of a contract, and not its money value. The judge made a preliminary order commanding the defendant to give the thing, and only enforced the pecuniary condemnation in case of his refusal or inability to restore the thing itself. Interdicts. 107. In speaking of actions under the system of formulæ, it is impossible to pass over without notice the interdicts of the prætor,† though they were only incidentally connected with actions. An interdict was an order issued by the prætor, and was in fact an edict addressed to a particular individual with reference to a particular thing. Vim fieri veto, exhibeas, restituas, 'I forbid you to have recourse to violence, you are to produce, you are to restore;' such were the forms in which these commands were couched. Interdicts were granted, generally where some danger was apprehended, or some injury was being done to something to which a public character attached; as, for instance, if a road was stopped up; but they were also granted to protect private interests, if the necessity for the interference of a magistrate was immediate. If the person to whom the interdict was addressed acquiesced and obeyed the prætor's injunction, nothing remained to be done; but if he refused to obey, the magistrate then referred to the decision of a judge, whether the terms of the interdict ought to be complied with. For instance, the interdict rem restituas might + GAIUS, iv. 138. * GAIUS, iv. 47. have been issued; but the person to whom it was directed might deny that by law he was bound to restore the thing. On his stating this to the magistrate, the magistrate would give an action to try the question, shaping the terms of the interdict into the intentio of the formula, si paret A. A. rem restituere oportere, &c. And it is thus that interdicts are connected with actions, as their validity depended on no action being brought to contest them, or the result of an action being to support them. Extraordinaria judicia. 108. There were under the system of formulæ certain cases which the magistrate decided without sending to a judge. In these cases the magistrate was said extra ordinem cognoscere, and the proceedings were termed extra ordinem cognitiones, judicia, or actiones. Among the cases in which the magistrate proceeded in a summary way, were restitutiones in integrum, (that is, certain cases in which he restored a person suffering from something from which he ought not by law to suffer, to the same position as he had occupied before the injury was sustained), and cases relating to fideicommissa. But he was called upon most frequently to proceed in this way in order to give execution to the sentence of a judge. The old modes of execution, the manus injectio and pignoris capio, remained, though under a mitigated form; but a new method of execution was also permitted by the prætor, and was much more generally adopted. The creditors were placed in full possession of all that the debtor had belonging to him; his persona was, in fact, transferred to them. This was termed the missio in bonorum possessionem. After a certain delay, the creditors sold their interest in the debtor's property to the person who would offer to pay the largest proportion of the sums they claimed. He became the purchaser, and this emptio bonorum transferred to him the persona, or legal existence of the debtor, who thereby suffered a capitis deminutio, and became, in the language of the law, 'infamous.' It was in the exercise of his 'extraordinary' jurisdiction that the magistrate gave this mode of execution. process. cia. 109. In the third period of the Roman system of civil process, the period of extraordinaria judicia, Third period this summary jurisdiction was the only juris- of the Roman diction the magistrate exercised. There was no system of civil longer any distinction between jus and judi- The extraor cium; the magistrate and the judge were the dinaria judisame person. By a constitution published A.D. 294, Diocletian directed all magistrates in the provinces to decide causes themselves. The practice was, in course of time, extended throughout the whole of the empire; and in the days of Justinian, it was possible to speak of the ordinaria judicia as quite past.* Judges. 110. In the days of the later emperors, the provinces were classed together into præfectures. Over each province was a preses, who had a vicarius, or vice-president, under him, and who, either himself or by his vicarius, tried all cases above a certain amount, fixed by Justinian at 300 solidi; cases below that amount were tried by inferior judges, called judices pedanei. The great cities, such as Constantinople and Alexandria, were under a separate jurisdiction. The prætorian prefect was the head judge of appeal; but a final appeal lay to the emperor himself. cedure. 111. In the time of Justinian, an action was begun by the plaintiff announcing to a magistrate that he wished to bring an action, a proceeding which was Mode of protermed the denuntiatio actionis, and furnishing a short statement of his case; this statement, called the libellus conventionis, the magistrate sent by a bailiff of the court (executor) to the defendant. The parties or their procurators appeared before the magistrate, and the magistrate decided the case. Exceptio was still used as the term to express the plea of the defendant, which he generally, of course reduced to writing, but apparently not only was he not obliged to do so, but it was not even necessary in all cases for the plaintiff to put his plaint into writing; if he did not, the executor *Inst. iv. 15. would merely tell the defendant, by word of mouth, that an action had been brought against him, perhaps adding a general statement of the object for which it was brought. The litis contestatio took place directly the magistrate began to hear the cause. The condemnation was no longer merely a pecuniary one, but the system of execution was not materially different from what it had been under the prætorian system. |