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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]

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