PER JU´DICIS POSTULATIO´NEM
PER JU´DICIS POSTULATIO´NEM was one of the
legis actiones. The passage in Gaius (4.17) is wanting in which this form of
action is described, and the only direct reference to it is the following
note of Valerius Probus (4.8):--“T. PR. I.
A. V. P. V. D.;” that is--te, praetor, judicemn arbitrumve
postulo uti des; I pray you, praetor, to appoint an arbiter or judge (for
the technical meaning of
postulare, see art.
ACTIO). The procedure
probably derived its name from the fact that when the parties to it first
appeared before the praetor they might request the immediate appointment of
a judex, instead of having to wait till the thirtieth day for such
appointment, as the Lex Pinaria required in the process of sacramentum
(Gaius, 4.15), and the Lex Silia in that of per condictionem (Gaius, 4.18).
Judicis postulatio must have been used in actions under the Twelve Tables to
which sacramentum was inapplicable, as would be the case in arbitria as
opposed to judicia, e. g. actio familiae erciscundae, de arboribus succisis,
actio fiduciae. We may infer, however, from a remark of Gaius (4.20) that it
was to some extent an alternative proceeding to the actio sacramenti in
personam. Its application was, perhaps, limited by statute to certain cases
of contract and delict. [
PER
CONDICTIONEM] (Keller,
Der röm.
Civilprocess, § 17; Bethmann-Hollweg,
Der
röm. Civilprocess, i. p. 62; Bekker,
Die
Aktionen, &c. i. pp. 18-74; Karlowa,
Der
röm. Civilprocess zur Zeit. d. Legis Actiones; Schmidt,
in
Zeitsch. der Sav. Stift. 2, 155, &c.; Voigt,
Zwölf Taf. 1.62; Muirhead,
Intr. to
Private Roman Law, § 35.)
[
E.A.W]
