AC´TIO
AC´TIO An action or proceeding in the technical
sense is the lawfully recognised mode of enforcing one's rights, and usually
took place under the control of a magistrate and in forms prescribed by the
law. Three principal systems of judicial procedure prevailed successively
among the Romans, the first however continuing along with the second for
certain classes of cases.
I. The first mode has to be collected principally from the fragments of the
Twelve Tables and the mutilated account of Gaius, 4.11 foll., whose
statements however may not be perfectly accurate respecting the early times.
The sources are so meagre that a good deal of assumption is necessary, and
there is no part of the history of Roman law which has given rise to more
discussion and to greater divergences of opinion. A plaintiff summons his
opponent into court: if he does not go, the plaintiff calls a bystander to
witness the summons and refusal, and then takes the defendant by force if he
shirks or resists. If illness or age prevents his going, the plaintiff has
to provide a beast to carry (or draw?) him, but is not obliged to furnish a
cushioned car if he does not choose. ( “Si in jus vocat, ito: ni it,
antestamino: igitur em capito: si calvitur pedemve struit manum endo
jacito. Si morbus aevitasve vitium escit qui in jus vocabit jumentum
dato; si nolet arceram ne sternito.” XII. Tab.;
cf. Gell. xx. i. “Pedem struit” was
explained by Serv. Sulpicius as meaning
fugit:
perhaps “fixes his foot” was the real meaning; cp. Fest. p.
313.) The
antestatio was accompanied by the
plaintiff's touching the ear of the witness, as a symbolical way of bidding
him listen to the summons (cf. Hor.
Sat. 1.9,
76; Plaut.
Pers. 747, 748). The defendant had two courses
open to him in lieu of obedience ; viz., he might either find an adequate
defender (
vindex, Gai. 4.46 ;
Lex
Rubr. 21) to accept suit in his place, or he might settle the
difference at once (
Dig. 2,
4,
22). For a proletarius (i. e. a citizen
assessed at not more than 1500 asses) any one might serve as vindex; a
richer defendant required a richer vindex. ( “Assiduo vindex assiduus
esto; proletario jam civi qui volet vindex esto,” XII. Tab.; cf.
Gel. 16.10 ;
Cic.
Rep. 2.22 The words, however, are by some
referred to a different stage of the proceedings ; cf. Demotius and Lenel in
Zeitschrift für R. G. xv.) If no settlement was
made, then, if we may trust the scanty fragments of the Twelve Tables, both
parties before noon, either in the comitium or in the forum, stated their
case (
causam coiciunto). If one was present and the
other not, the property in question was after noon assigned to the one
present. The proceedings were not continued beyond sunset; and if the case
was not concluded, bail (
vades) was given for
future appearance. Gaius (4.16, 17) gives us fuller though still imperfect
information of the proceedings in court. If some piece of property was in
dispute--e. g. a slave, an animal, or some other movable article--it was
brought into court. If it was a flock of sheep, one sheep or a lock of wool
was brought in; if it was land or a house or ship, a sod or brick or piece
of the ship was brought in, and these were made the subjects of the formal
acts just as if they were the whole of the property in dispute. Then the
claimant, holding a rod (
festuca), laid hold of
the slave or other article claimed, and said, “Hunc ego hominem ex
jure Quiritium meum esse aio secundum suam causam. Sicut dixi, ecce tibi
vindictam imposui,” and at the same time put his rod upon the
slave, thereby giving physical expression to the claim contained in his
words, 4 “sicut dixi;” cf.
Liv.
8.9.8. (Some connect “sicut dixi” with “suam
causam,” and both are by some put with what precedes, by others
with what follows.) “Ecce tibi” (See you there) is addressed to
the defendant. The thing was claimed subject to special grounds or
restrictions ( “secundum suam causam :” cf.
Dig. 13,
7,
18.2; 44, 2, 11.2, &c.). The rod represented a spear, which
was the symbol of the most absolute right of ownership, that acquired by
conquest in war. A similar claim (
vindicatio),
with like words and gestures, was made by the other party, and there was
thus a symbolical strife (
manum conserebant)
over the thing. The praetor bade them take their rods off; which being done,
the first claimant demanded of his opponent on what ground he had made his
claim; the other answered, “Jus feci sicut vindictam imposui.”
The former then replied by denying the rightfulness of the other's claim,
and challenging him to a trial by the devotion (
sacramento) of fifty pounds of copper (
asses), or, if the property was worth 1000 pounds or more, by
the devotion of 500 pounds. The other claimant then went through the like
forms and made the same challenge. The praetor assigned the possession of
the disputed thing itself (not its representative in court) to one of the
parties, and ordered him to give sureties to
[p. 1.15]the
other for the eventual delivery, if the possessor were defeated, of the
thing itself, and of any profits which accrued before the final decision of
the case. These sureties were called “praedes litis et vindiciarum, id
est” (as Gaius says, § § 16, 94) “rei et
fructuum.” Further bail was demanded by the praetor from both
parties for the amount devoted, as that was forfeited by the losing party to
the public treasury.
The next step was for a judge to be appointed to try the case. This before
the Lex Primaria (A.U. 282? 322?) was done
immediately, but by that law notice was given to come to court on the
thirtieth day to have a judge appointed (
ad judicem
accipiundum). On the judge being appointed, notice was given
of trial on the next day but one (
comperendinum diem
denuntiabant). They appeared before the judge and stated their
case briefly, and then proceeded to the fuller statement. This
causae conjectio, or brief statement, is spoken of
by Gaius as occurring before the judge. How witnesses were summoned, and
generally what was the procedure for supporting a case by evidence, is not
told us. A fragment of the Twelve Tables,
cuitestimonium
defuerit is tertiis diebus ob portum obvagulatum ito, may perhaps
belong here, but its purport is obscure. Serious illness (
morbus sonticus), or an appointment for a trial with a
foreigner (
status condictus dies cum hoste),
whether affecting judge or defendant (or plaintiff, Festus v.
rem), was a good ground for adjournment (
Cic. Off. 1.1. 2;
Gel. 20.1.27).
Gellius (
20.10) tells of a time when the praetor
accompanied the parties to the place where the thing (e. g. a piece of land)
was, and the formal claims at least were made on the spot. When the
territory grew and the praetor became more occupied, the parties left the
court and went to the place and brought a turf or piece of the disputed
property into court. A still later stage is given us in Cicero's satirical
attack on lawyers in the speech
pro Murena, 12.
After the claim is made to a field in the Sabine territory, the claimant
proceeds,
Inde ibi ego te ex jure manum consertum
voco--“Thereupon (
inde) I
summon thee there (
ibi, perhaps only an
enclitic to
inde: Karlowa,
C.
P. p. 79, note) to join hands in accordance with law.”
(So Huschke,
Z. R. G. 7.186; others generally take
ex jure,
“out of court.” ) The opponent retorts,
Unde
tu me ex jure manum consertum vocasti, inde ibi ego te
revoco--“I in turn call you,” &c. The
praetor then says,
Suis utrisque superstitibus praesentibus istam
viam dico: ite viam--“Each party having their witnesses
present, I order you that way; go ye that way;” and immediately
afterwards, “Come back that way.” The proceedings had then
become a mere formality, the parties not leaving the court; and probably any
article serving as dummy for the distant property, or even for the clod, its
original representative.
But this
sacramenti actio was applicable, not
only to suits in which claims to the ownership of property were urged, but
also to claims upon particular persons, e. g. to repay loans, or to pay
compensation for injuries done by them, &c. Gaius' account is
mutilated, but the ritual was probably as like the other as circumstances
allowed. In Valerius Probus (ed. Kruger, p. 144) we have probably some of
the phrases preserved, beginning with
Aio te mihi dare
oportere, and followed by a sacramental challenge. Different
reconstructions may be seen in Huschke's edit. of Gaius, 4.5; Rudorff,
Röm. Rechtsgesch. 2.21 (p. 78); Karlowa,
Civil-Prozess, p. 110, &c.
The distinctions just referred to between actions
in
rem and
in personam are of great
importance. An action
in rem is a suit to
establish your right to a particular thing or animal, or to a share of a
particular thing, or your right to use a road, or to take water, or enjoy
uninterrupted light, or to establish a personal right, such as liberty. Such
claims or suits are maintainable against all the world, though in practice
they are brought only against those withholding the possession or enjoyment,
or disputing the right. But an
actio in
personam is a right only against a certain person or persons who
by some act or omission on their part have become bound (
obligatus) to us. The obligation may have arisen from a
contract, or from a tort (
delictum), i. e. an
injurious act for which they are bound to make reparation, or from some
course of action or neglect which in the eye of the law is tantamount to a
contract (
quasi ex contractu), or tantamount to
a tort (
quasi ex delicto). By a real action
(
actio in rem) we claim
rem nostram esse or
jus aliquod nobis
competere; by a personal action (
actio in
personam) we claim that some one
dare
oportere. If we sue for a field, we cannot say that the
possessor
ought to give it us, for we say it is ours
(i. e. our property) already; if we sue for the repayment of a loan, we
cannot say that the money is ours, for our money (i. e. our actual coins
lent, cf.
Lex Rubr. 21 n.) is spent, and what we claim is
that a like amount be handed over to us, to become thereby our property.
Real actions are called
vindicationes; personal
actions (at least of some kinds) were called
condictiones in the wider sense of the term (
Dig. 44,
7,
25,
pr.).
The second
legis actio named by Gaius is that
per judicis postulationem, but his account
of it is lost. It is reasonable to suppose that this was the proper
proceeding when an inheritance was to be divided among co-heirs, or
boundaries to be regulated between neighbours, or accounts to be taken
between guardian and ward, or like matters required judicial administration
(cf. Rudorff,
Röm. R. G. 2.22). The ridicule of
Cicero (
Cic. Mur. 12), and the formula given
by Valerius Probus,
te praetor judicem arbitrumve postulo
uti des, have led some to think that this proceeding was
alternative to the
actio sacramenti, and
applicable whenever a party was in some uncertainty about the extent of his
rights; and fearing the loss of his case, and consequently of his
sacramentum, if he claimed too much, sought
authoritative arbitration. An analogy for this view is found in proceedings
for an injunction (Gai. 4.163 foil.). Or again, in many cases, whether of
personal or real actions, an assessment of damages for the breach of
contract or for the tort, or for the value of the property rightfully
claimed but not duly restored, would be necessary, and an arbiter
liti aestimandae (so in Valer. Prob.) might be
demanded. But nothing is really known. (Gaius' criticism of the
actio per condictionem (4.20) has been wrongly taken
to imply that the process
per judicis
postulationem, as well as the
sacramenti
actio, was applicable to claims for sums of money certain, or
other certain things. But Gaius has chosen
[p. 1.16]to speak
of the whole sphere of
quod dari oportet, and
this sphere comprises certain and uncertain claims, some of which are
enforceable by
actio sacramenti, some
per judicis postulationem, some by both.)
The third
legis actio is
per
condictionem. Apparently the first stage of the formal
proceedings before the praetor was dispensed with, and the action was
commenced by notice (
condictio = denuntiatio)
by the plaintiff to the defendant to appear on the thirtieth day to have a
judge assigned. (Many writers, however, on account of Gai. 4.29, think
unnecessarily that this notice and all proceedings took place in court.)
This proceeding
per condictionem was introduced
by the Lex Silia for a claim to an amount of money certain, and extended by
the Lex Calpurnia to a claim for any certain amount. Gaius (4.20) was
ignorant of any good reason for introducing such special procedure. But
besides the above-named shortening of the process, two other characteristics
of the new procedure have been suggested with great probability, viz., (1)
that either party might tender an oath to the other as to the truth of his
contention, and thereby all further proof be saved; and (2) if this were not
done, a wager to the amount of one-third of the sum in question should be
entered into, and thus the risk to the wrongful party be increased. There
can be no doubt that the
actio de pecunia certa
credita or
si certum petitur is the
continuation of the
legis actio per condictionem lege Silia
(cf. D. 12, 1, rubr. and 13, 3, 1). Then the position of the title
de jurejurando in the Digest (D. 12, 2; cf. Paul.
Sent. 2.1) and certain passages of Plautus
(
Rud. 14
sq.; Pers. 478;
Curc.
496) go far to prove the first characteristic: and the use of
legitimae in Cic.
Rose.
Com. 4.14, compared with ib. § 14; Gai. 4.171, go far to
prove the second (Rudorff on Puchta,
Curs. § 162 f;
Huschke,
Multa, p. 501). The
condictio triticaria (D. 13, 3) is clearly the continuation of the
action created by the Lex Calpurnia. The name
condictio was afterwards applied to other personal actions,
excepting
bonae fidei actions, civil actions
arising from torts, and praetorian actions on the case (cf. Savigny,
Syst. v. p. 503
sqq.;
Bethmann-Hollweg, ii. p. 274).
Of the fourth
legis actio (
per manus injectionem) we have a fuller account in Gaius,
4.21-25;
Gel. 20.1.42 foil.; and the recently
discovered Lex Ursonensis, cap. 61 (Bruns, pt. 1.3, 9). It was the early
form of execution of a judgment, and was sanctioned by the Twelve Tables. If
a man admitted the debt, or if judgment was given against (him, the
plaintiff laid hold of him, stating in a recognised form the fact of the
judgment or admission, and the amount thereby due. The defendant then had
two courses only open to him, either to pay the amount, or to find a vindex
who would take legal measures in his defence, and in fact assume entire
responsibility in his stead. He was no longer allowed to defend himself.
(The words of the Twelve Tables as to the sufficiency of the person coming
forward as vindex would apply here also; according to some writers, here
only.) If neither course was taken, he was assigned (
addicebatur, Gell.
l.c.) to the
plaintiff, who led him off to the plaintiff's house (
secum ducito), and bound him either in the stocks (
nervo), or with shackles on his feet (
commpedibus), the weight of the shackles to be not
less (more?) than fifteen pounds. The prisoner might, if he chose, find his
own provisions; if he did not, his creditor had to give him at least a pound
of corn (
far) a day. This position lasted, if
debtor and creditor did not come to terms, for sixty days, during which he
had to be produced on three market days in succession before the praetor in
the comitium, and the amount of his debt declared. On the third occasion, if
the debt was not paid, the final step was taken. Sext. Caecilius (Gell.
l.c.) describes it thus, the debtors
capite poenas dabant aut trans Tiberim peregre venum
ibant. If there were more creditors than one, the Twelve Tables
declared
tertiis nundinis partes secanto: si plus minusve
secuerunt se fraude esto, which was taken by Sext. Caecilius
and Quintilian (3.6.84) to mean that the creditors might slice the debtor's
body, without incurring any risk if they happened to cut more or less than
their share. Sext. Caecilius says (so also Dio Cass.
Fragm.
17.8) that he never read or heard of this actually taking place. This view
has been adopted by most modern writers (Kuntze,
Excurs. p.
140, ed. 2, quotes some analogies from old German law), but is opposed by
Huschke (
Nexum, p. 89), Schwegler (
R.
G. 3.38), Karlowa (
Civ. Proc. p. 163), and
Münderloh (
Z. R. G. xii. p. 196). Comparing such
expressions as
sectio oppidi (
Caes. Gal. 2.33),
sector
Pompeii (
Cic. Phil. 2.26),
sectio alicujus (Varr.
L. L.
2.10.4), we may reasonably translate “they shall make a
dividend,” and may apply the words to the proceeds of the sale of the
debtor's person and his property. Münderloh gives as the meaning of
the clause
si plus, &c., that whether
the dividend each creditor got came to more or less than the amount of his
debt, there was no further responsibility of the debtor to him or of him to
the debtor. In the case of a single creditor, the debtor would probably not
be killed, but either be sold, or kept and made or allowed to work off his
debt. At any rate the class of
addicti are
spoken of as numerous (
Liv. 6.27,
9, &c.). Neither Gaius nor the Lex
Ursonensis mentions any further proceedings after the debtor was
vinctus by his creditor, the old procedure having
been long altered--as is generally supposed, by a law passed in A.U. 428, commonly called Lex Poetelia. Savigny
considered the
manus injectio and its
consequences to have been originally confined to debts for money borrowed
(
Verm. Schr. ii. p. 206 foll.).
Gaius states (4.22) that the procedure
per manus
injectionem was made by a Lex Publilia applicable against any
one who had not within six months reimbursed his surety (
sponsor) for money expended on his behalf, and by many other
laws in other cases. Thus a recently discovered inscription at Luceria
(Bruns, pt. 1.3) forbids defilement of a grove under penalty of
manus injectio. Other laws made the procedure
applicable, but in a modified form, to further cases. The words
pro judicato were omitted in the formal declaration,
and the effect was that the debtor was then not disabled from making his own
defence. The same relaxation was by a Lex Vallia introduced in all cases,
except only the case of a judgment-debtor, or of one who had not repaid his
surety. For them the harshness of the old law continued as long as this
legis actio lasted.
It thus appears that
agere sacramento was
[p. 1.17]probably the normal way of conducting a suit at law,
and applicable generally to all disputed claims which admitted of being
brought to a simple issue. The
postulatio
judicis was probably applicable to matters where several persons
in common sought authoritative arrangement or distribution. The
condictio was probably a summary method of enforcing
a perfectly simple claim for a liquidated amount. The
manus injectio was a mode, originally perhaps the only mode,
of obtaining execution of a judgment. But
lege
agere is used also of surrender in court (
in
jure cessio) because the form of a real action is applied to
effect an amicable conveyance (Gai. 2.24 foll.). Most lawyers, Gaius tells
us (4.29), reckoned as a
legis actio the old
proceeding of seizing a pledge (
pignoris
capio), but only on the :ground of its being accompanied by a
declaration in set words. Others objected to ranking it as a
legis actio, because it was not done in court, it
was often done in the absence of the debtor, and it might be done on any
day, even on those when
lege agere was not
allowed. These objections seem decisive.
The rigour of the statutable actions is given by Gaius as the reason why they
went out of use. The smallest error was fatal to a man's case (4.30). The
very words of the statute had to be strictly followed (ib. 11); a suitor
must appear in person, and could not be represented by any agent or
attorney, except in certain cases (ib. 82). (What they were is much
disputed, see Keller,
Röm. C. P. 254, ed. Wach. The
vindex was not so much the representative of the defendant as a new
defendant in his room.) Whenever security had to be given, personal sureties
were required (ib. 94). A suit once brought could not be brought again on
the same matter, and there was no such use of equitable pleas against the
strict technical right as was allowed in Gaius' time (ib. 108). Yet in some
way it must have been possible for a defendant, e. g., to show that he was a
minor, and by the Lex Plaetoria was not liable on a loan; or that the action
had been tried and decided before; or that he had never received the loan
which the stipulation on which the plaintiff was proceeding was intended to
secure. The general view among modern lawyers is that such matters were
urged before the magistrate, who, if he found them valid, refused to allow
the
legis actio; and that if investigation were
needed, a wager (
sponsio) to determine the
point was entered into between the parties (cf. Sell.
de
exceptionum usu, 1875; B.-Hollweg, 1.338, citing Plaut.
Rud. 5.3, 22
sqq.). Others
maintain that all, or at least some, such grounds of defence were made the
subject of a counter action, the possibility of which was often enough to
deter the plaintiff from proceeding with his unjust claim (Ihering,
Geist, 3.52; Karlowa,
C. P. §
46). Huschke, but in a special way, favours the former view (
Multa, p. 224). Be that as it may, the whole system
of the
legis actiones, as a form of contentious
procedure, went out of general use under the influence of the Lex Aebutia
(date quite uncertain; generally put between 150 and 250 years B.C.) and two
leges Juliae (perhaps of Augustus). The
actio sacramenti was retained in suits
before the Court of the Hundred Men (
centumvirt),
and an action on the statute might be, but in practice was not, used in the
case of
damnum infectum (Gai. 4.30).
The non-contentious procedure on the statute remained, and could be exercised
not only before the praetor, but also before a consul (D. 1, 10), a
proconsul (ib. 16, 1. 1), a governor of a province (ib. 18,1. 10) and a
juridicus (ib. 20). Adoption and emancipation were acts which could take
place before those magistrates
apud quos legis actio
fuit (cf. D. 1, 7,1.4; 16,1.2; 1.3;
Gel.
5.19.3), and hence are often regarded as themselves forms of
non-contentious “proceeding on the statute.”
In Cicero
lege agere or agi is used in
Div. c.
Caecil. § 19, of proceeding under the
lex de provinciis repetundis, but in general appears
to refer to the suits under the statute of the Twelve Tables, i. e. to the
actio sacramenti (
de Or.
1.36, 167;
Verr. 1.45, 115; 2.16, 39;
Caecin. 33, 97;
Mur. 11, 25). So in Plautus
(
Mil. 453;
Aut. 458; Ter.
Phorm. 984). In
Liv. 26.15,
lege agito, addressed to a lictor, is
probably merely equivalent to “execute the law.”
II.
Per formulas litigare. The procedure on the
statute was succeeded by a method more flexible, and better adapted to
promote a judgment on the merits of a case. The change consisted in omitting
the ancient ceremonial, and giving the praetor power to state the issue to
be decided in a way which would enable the equitable claims of both parties
to be duly regarded. The proceeding commenced as before by a summons given
by the plaintiff to the defendant to appear in court, and non-appearance was
visited by the praetor with a fine (D. 2, 5, 2, pr.). Future appearances
after the first were secured by his being compelled to enter into a formal
arrangement for this purpose. The defendant was said
vadimonium facere, the plaintiff
vadari
reum. Such
vadimonium was defined
by the edict according to circumstances: either a simple promise (
purum vad.), or a promise secured by bail (
vadus), or an oath, or a forfeit, the amount of the
forfeit being usually fixed by oath of the plaintiff, but in case of a
judgment debt, or of money actually paid out, it was the value of the matter
in dispute (Gai. 4.186). Persons of certain official dignity were exempt
from liability to summons; so also parents and patrons, and any persons
actually engaged in attending a funeral, or being married, or keeping close
in their own house (D. 2, 4, s. 2; s. 4; s. 18; s. 19). On the parties
appearing and stating the nature of their case the praetor appointed a judge
or judges to determine the questions of fact, and gave him instructions
which showed both the claim of the plaintiff, so far as it deserved legal
recognition, and the duty of the judge if the facts were found to support or
negative the claim. These instructions were comprised in a short formula,
varied according to the equities and circumstances. The essential parts of
it were two: the claim (
intentio), and the
judge's duty (
adjudicatio or
condemnatio). Frequently the matter in question required to
be briefly stated: this was called
demonstratio. Then came the claim. If the suit was one for
partition of an inheritance or of any common property, or for defining the
borders of neigbouring estates, the formula closed with a direction to the
judge to adjudicate this or that thing or part to the claimant or to the
defendant. In other cases it closed with a
condemnatio or
absolutio, i.e. with
a direction to the judge, if certain things were found to be or not to be
the fact, to
[p. 1.18]order the defendant to pay so much
money as damages to the plaintiff, or to acquit the defendant of all
liability. Occasionally, where a preliminary question has to be decided
(
praejudicium) this question might be
stated simply by itself, e.g.
An A. Agerius libertus sit? or
Quanta Marciae dos sit? Gaius (4.44)
considers in these cases the formula to consist of the
intentio only. As an example of a simple formula, we may take
this.
L. Titius judex esto.
Quod A. Agerius N. Negidio hominem vendidit, (
Demonstratio)
Si paret N. Negidium A. Agerio sestertium x milia dare
oportere, (
Intentio)
L. Titi, N. Negidium A. Agerio sestertium x milia condemna: si non
paret, absolve. (
Condemnatio.)
As an example of a formula in a suit for partition may be taken this (which
is partly hypothetical).
L. Titius judex esto.
Quod fundus Cornelianus A. Agerio et N. Numidio communis est,
(
Demonstratio)
Quantum ejus fundi A. Agerio adjudicari oportet,
Tantum Titius A. Agerio adjudicato; reliquum N. Numidio
adjudicato. (
Adjudicatio.) Gai. 4.42.
A distinction of much importance in many respects is found in the issue
raised by the claim (
intentio). It may state a
matter of fact, and then the formula is said to be
in
factum concepta; or it may state a question of law,
formula in jus concepta. It is an issue merely of
fact if, e. g., the plaintiff asserts that the defendant has been duly cited
and has not appeared in court, nor produced an adequate representative
(
vindex, Gai. 4.46). An issue of law is
raised if the plaintiff asserts, e. g., that anything is his property, or
that something ought to he given to him; the first being a real action, the
second a personal one, but both raising a question as to the legal right of
the plaintiff. In the case of a deposit or a loan (
commodatum), the formula might be shaped either way. If the
complaint was merely of the refusal to restore a thing deposited with the
defendant, or lent to him for use, the facts only of deposit (or loan) and
non-restoration required to be proved to entitle the plaintiff to judgment
in his favour. The formula then, in the case of a deposit, runs thus (Gai.
4.47):
L. Titius judex esto. Si paret A. Agerium apud N. Negidium mensam
argenteam deposuisse, eamque dolo malo N. Negidii A. Agerio redditam non
esse, quanti ea res erit, tantam pecuniam judex N. Negidium A. Agerio
condemnato: si non paret, absolvito.
It is true that the second fact thus stated is not quite a simple one, for an
article returned in a damaged condition was deemed to be not returned, and
dolo malo
“ maliciously ” is a qualification which both restricts and
amplifies the conception of non-restoration. Still the question is one
which, as we should say, is a question for the jury. Has the defendant
restored, or honestly done his best to restore, the article deposited?
The
formula in jus concepta has a wider range of
considerations:--
L. Titius judex esto. Quod A. Agerius apud N. Negidium mensam
argenteam deposuit, qua de re agitur, quidquid ob eam rem N. Negidium A.
Agerio dare facere oportet ex fide bona, ejus judex N. Negidium A.Agerio
condemnato; si non paret, absolvito. (We have omitted the words
nisi restituat, given in many editions of
Gaius, because they are very doubtful: cf. Keller,
Inst. p.
115). Here the fact of deposit is not put in issue, presumably because it
was not disputed. But by the formula so shaped the judge is directed to
decide upon the whole of the mutual obligations created between the two
parties by the deposit, and to give judgment, not for the value of the
table, but for less or more according to circumstances.
In the case of all formulae the condemnation “sounds in damages”
; it directs not this or that act to be performed, but, if the sentence is
against the defendant, a sum of money to be paid. The injury, be it what it
may, is estimated at its money value, and this money value it is for the
defendant to pay. Sometimes a fixed amount (
certa
pecunia) is stated in the formula as the damages; sometimes it is
left uncertain and indefinite, and the judge has to ascertain it; sometimes
a maximum is named (e.g.
dumtaxat sestertium x
milia). The judge is bound to give judgment for a specific sum of
money, neither exceeding the amount if a maximum is named, nor varying at
all from it if a specific sum is named, nor leaving the amount undetermined
if the amount is left uncertain in the formula. In the first two cases, if
he does so, he is said to make the suit his own (
litem
suam facit, Gai. 4.52; D. 4, 13, 6), i. e. he is responsible
to the injured party for his malfeasance. In actions for a thing (
in rem) or for the production of a thing (
ad exhibendum) and in many
bonae
fidei actions, the judge might, and naturally often would, direct
the restitution or production of the thing, or proper security for future
action, and only in case this was refused condemn the defendant in damages,
or at any rate in damages to the full amount otherwise proper. If a
defendant maliciously or obstinately (
dolo malo aut
contumacia) refused compliance or put it out of his own power
to comply, the judge had an additional weapon. He could, instead of
assessing the damages himself, allow the plaintiff to assess them himself on
oath (
in litem jurare), and the assessment so
sworn would as a rule be entered as judgment against the defendant (D. 8, 5,
7) unless indeed the judge, on proof being given, thought the amount
excessive (D. 12, 3, 2; 4, § § 2, 3; s. 5). It does not
appear that the judge ever forcibly executed his own order for restoration,
as long as the formulary process was in use. The passage (D. 6, 1, 68)
quoted from Ulpian, which speaks of forcible restorations,
manu militari officio judicis ab eo possessio
transfertur, is generally considered to contain words interpolated
by the compilers of the Digest. (Cf. Savigny,
Syst. 5.123;
Wächter,
Pand. 1.565.) Those actions in which the
judge had the power to direct specific performance, and only in case this
was refused to condemn in damages, were sometimes called
arbitrariae (Just.
Inst. 4, 31;
Dig. 4,
2,
14.4. &c.). The formula would contain the words
nisi restituat or the like (cf.
Cic. Ver. 2.12, 31 Dig.
l.c. § 11).
An error in the formula might have disastrous effect. If indeed the error was
in the statement of circumstances (
demonstratio), so as to make the statement really false, the
matter which was really meant being thereby not brought forward, the
proceeding was nugatory. The plaintiff was
[p. 1.19]not
however precluded from bringing on the case again with an amended formula
(Gai. 4.58). An error in the allegation (
intentio) was similar if the error consisted in claiming a
different thing altogether from what the plaintiff was justified in
claiming, as for instance if he claimed a slave Stichus instead of the slave
Eros, or based his claim on a will instead of on a formal verbal contract.
But if the allegation contained the right subject-matter, but the claim was
excessive (
plus or
pluris
petitio), the plaintiff must fail (
causa
cadit). It might be excessive from claiming either too large a
sum, or payment in the wrong place, or before the due time, or by
restricting the choice of payment which the defendant was entitled to. If
the plaintiff's claim was specific, but less than he was entitled to, he was
not thereby hindered from gaining so much as his allegation covered, but he
could not, within the same praetor's term of office, claim the residue. Both
these could obviously only occur where the allegation of claim was specific
in quantity. If the terms were general (e.g.
quidquid
dare facere oportet), no excessive or defective claim was
possible (Gai. 4.53-56).
The formula in
bonae fidei suits was always
general in terms, and it was the duty of the judge, though not expressed in
the formula, to take account of any counter-claim and allow one to be set
off against the other. The judgment was then only for the balance. In a
banker's account with a customer all present debits and credits are taken as
ipso facto neutralising one another; and
therefore the banker cannot sue his debtor for all he has debited him, but
only for the balance in account. The allegation in the formula is of this
kind:
si paret Titium argentario x milia dare oportere amplius quam
ipse Titio debet (Gai. 4.64-68).
If the damages are put at an excessive amount, the defendant can claim
annulment of the formula (
restitutio in
integrum), and the case must be brought anew. If the damages are
put at too little, the plaintiff cannot recover more, nor can he bring
another suit for the remainder. (Gai. 4.57.)
In some cases, where a similar danger might await the plaintiff, it was
possible to obviate it by prefixing to the formula a limitation (
praescriptio) of the matter to be put in issue. If a
man entitled to an annuity brought an action to enforce payment of the sum
actually due, he had to prefix the words
ea res agatur
cujus rei dies fuit, i.e. “that only is to be in suit of
which the due time has already come.” Then the claims to the
future payments remained unaffected, not having been brought into issue in
this suit (cf. Cic.
Orat. 1.37.168). So if a
man sued for conveyance of an estate bought, unless he specified that he
sued only for the formal conveyance (
ea res agatur de
fundo mancipando), he might be held to have no further right
to sue for actual delivery of the thing (Gai. 4.130-132). Gaius says that at
one time similar
praescriptiones were prefixed
in the interest of the defendant to prevent a minor issue being held to
conclude a greater one, but in Gaius' day such limitations took the form of
special pleas (
exceptiones, ib. §
133).
A general denial by the defendant was outside of the formula; but any special
plea which he might urge, if such as the praetor recognised to be good in
itself, was by him inserted in the
intentio of
the formula in the shape of an exception or negative condition. That is to
say, the allegation of the plaintiff was qualified in the formula so that it
should hold good, only if the plea of the defendant was found to be untrue,
or at any rate if the plea was not proved. Many such special pleas were set
forth by the praetor in his edict; others were framed by the praetor to fit
the particular circumstances which disclosed an equity on the side of the
defendant. Pleas regularly in use are such as fraud, agreement,
intimidation, &c. (D. 44, 4; 2, 14). For instance, if I sue a man on
a stipulation which was entered into as a security for money lent him, and I
have never paid him the money, the stipulation is still valid in strict law,
but the praetor allows him to plead fraud on my part, and my claim is
defeated. So an agreement not to sue for a debt does not nullify the
obligation, for the regular maxim is
obligatio pacto
convento non tollitur; but the agreement may be pleaded
(
pacti conventi exceptio), and the suit is
thus blocked. So intimidation or compulsion may be pleaded against any
attempt to enforce an obligation entered into under them. The plea of fraud
would take the form
si in ea re nihil dolo malo A. Agerii factum sit
neque fiat; that of agreement not to sue would be
si
inter A. Agerium et N. Negidium non convenit ne ea pecunia
peteretur, and the claim of the plaintiff would succeed, only if
these propositions (i. e. the absence of fraud or the absence of an
agreement not to sue) were proved. Otherwise the judge would acquit the
defendant (Gai. 4.115-119).
A plea might be absolute (
peremptoria), or dilatory
(
dilatoria). Absolute pleas are valid
without limitation, such as fraud, intimidation, contravention of a statute,
previous decision of the same matter, agreement not to sue at all. Dilatory
pleas are good only for a time or against certain persons, &c., such
as agreement not to sue within five years. In this case if, on the plea
being brought forward, I withdraw from the suit, I can bring it again after
the period of five years has expired; but if I persist, the matter is then
brought to trial, and the plea being proved defeats my suit. If I then on
the expiration of the period bring the suit again, I may be met by a fresh
plea (
exceptio rei in judicium deductae) that
the matter has been already decided, and my suit is thus again defeated.
Another dilatory plea is
litis dividuae, which is
good against my suing for the rest of a sum of money of which I have already
sued for part. The plea is good against the further suit within the same
praetorship; after that I am free. (But for the later law see Just.
Inst. 4.6.34.) Again, I may have appointed an attorney
(
cognitor) to sue for me; my suit may be
defeated by a dilatory plea if I persist in suing, though I was not
authorised to appoint an attorney at all (disgraced persons,
infames, and women are in this plight, D. 3, 1,
5.5), or not authorised to appoint the persons whom I have appointed (some
persons being not allowed to act as attorneys). Gai. 4.120-125.
The plea may admit of a replication (
replicatio)
on the part of the plaintiff: e. g. an agreement not to sue may be followed
by another agreement allowing me to sue. Then the plea
si
non convenerit ne eam pecuniam peterem would be met by the
replication
si non postea convenit
[p. 1.20]ut mihi eam pecuniam petere
liceret, and both would be inserted in the formula. The
defendant may however have a rejoinder (
duplicatio), and to this the plaintiff may have a surrejoinder
(
triplicatio), and so on. (Gai. 4.126-129.)
A still further extension of the formulae was due to the praetor's bold
recognition of equities requiring protection. A person whom the praetor had
recognised as equitably entitled to a deceased's estate obtained the
bonorum possessio, i.e. the
de facto rights of an heir, but was not the heir
de jure (Gai. 3.32). He could not in strict
law claim any of the property as
his, nor could
he enforce payment of a debt due to the estate as due to him. The difficulty
was got over by a
fiction. The formula was made to
apply to him, on condition that it would have applied if he had been heir.
And this was stated in the formula:
L. Seius judex esto. Si A.
Agerius L. Titio heres esset (
fictio),
turn si eum fundum de quo agitur ex jure
Quiritium ejus esse oporteret (
intentio),
L. Sei, N. Negidium, A. Agerio x milia
condemna; si non oporteret (or
paret
oportere?)
absolve (
condemnatio).
A similar fiction was made in favour of the
bonorum
emptor, i.e. the person who bought the insolvent estate of a
deceased. But here another frame, invented by P. Rutilius, was sometimes
given to the formula, the object being achieved by allowing the
intentio still to run in the name of the heir, but
inserting in the condemnatory clause the name of the purchaser of the
inheritance (as plaintiff), instead of that of the heir. Still more boldly,
if a foreigner sued or was sued for theft or for injury under Aquilius'
statute, it was feigned that he was a Roman citizen: e.g.
si paret a
Dione Hermaei filio furtum factum esse paterae aureae, quamobrem eum si
civis Romanus esset pro fure damnum decidere oporteret,
&c. (Gai. 4.34-38). In the Lex Rubria, cap. 20 (
Corp. I.
L. 1.115; Bruns, p. 91, ed. 4), prescribing analogous jurisdiction
in the province to that which prevailed at Rome, we have an instance of a
formula to be used in the case of a person who ought to have given security
against possible damage to another from his buildings, but had not done so
before the damage occurred. “
Judex esto. Sei, antequam id
judicium qua de re agitur factum est, Q. Licinius damnei infectei, eo
nomine qua de re agitur, eam stipulationem, quam is quei Romae inter
peregreinos jus deicet in albo propositam habet, L. Seio repromeisisset,
tum quicquid eum Q. Licinium ex ea stipulatione L. Seio dare facere
oporteret ex fide bona, dumtaxat H. S. . . . ejus judex Q. Licinium L.
Seio, sei ex decreto IIvirei IIIIvirei praefecteive Mutinensis, quod
ejus is IIvir IIIIvir praefectusve ex lege Rubria seive id plebeiscitum
est decreverit, Q. Licinius eo nomine qua de re agitur L. Seio damnei
infectei repromittere noluit, condemnato; sei non paret, absolvito.”
“If before the present trial Q. Licinius had given L. Seius a guaranty
against possible damage on account of the matter in question, the
guaranty being couched in the standing form approved by the praetor at
Rome who presides over cases between aliens (
fiction), then whatsoever Q. Licinius ought to pay or do to L.
Seius in accordance with the said guaranty, all equities being duly
considered, and the amount not exceeding . . . sesterces (part of the
intentio), so much shall the judge
direct Q. Licinius to pay or do to L. Seius (
condemnatio), if Q. Licinius has refused to give L. Seius
a guaranty against possible damage on account of the matter in question,
in compliance with a decree of the duumvir or quattuorvir or praefect of
Mutina, so far as said decree is made in accordance with the statute, or
Commons' resolution, proposed by Rubrius” (part of the
intentio); “if this is not the case, acquit
him.”
The proceedings before the judge are explained under
JUDICIUM
Actions were brought or defended either by the parties in person or by
attorneys. In the ante-Justinian Law an attorney was either a cognitor or
procurator. A cognitor was an attorney appointed in set words by the party
in person in presence of his opponent. Such words might be for the
plaintiff:
Quod ego tecum agere volo, in eam rem L. Titium cognitorem
do; for the defendant:
Quia tu mecum agere vis, in eam
rem P. Maevium cognitorem do. Strict precision in the words, at
any rate in Ulpian's time, was not necessary (Gai. 4.83;
Vat.
Fr. 318, 319). If the person so apppointed was absent, he did not
become attorney until he undertook the business. A procurator might be
appointed by simple mandate or even by his practically undertaking the
business, and neither the presence nor knowledge of the adversary was
necessary to his appointment. When persons were represented by others, the
formula contained the name of the representative instead of the principal in
the clause of condemnation, but not in that of allegation (
intentio).
Persons under the age of 17 years, and deaf persons, were not allowed to
plead their own cause. If they had no advocate of their own, the praetor
gave them one (D. 3, 1, 1.4). Some persons were disqualified from acting as
attorneys for others. Such were soldiers (D. 3, 3, 8.2), women, blind
persons, and those who had been convicted of a capital offence or of
dishonesty in suing or defending a suit (
calumnia), or of hiring oneself out to fight beasts in the arena.
Further, all persons who were
infames,
“disgraced,” were disqualified from acting for any others
except for near relations, either by blood or marriage, or for a patron or
patron's child. Under this head of
infames came
stage-players; persons who had had judgment against them or made a
compromise in suits implying disgraceful conduct; persons dismissed
ignominiously from the army; panders and persons who had married, or as
fathers had consented to the marriage of, a widow before the expiration of
the statutable period of mourning (which before 350 A.D. was ten months,
afterwards a year:
Cod. 5.9, 1. 2). Bankrupts were apparently
in ante-Justinian times disqualified. (See under
INFAMIA) Persons under guardianship were represented
in suits by their guardians (
tutores et
curatores), and a disqualification for acting for others was
waived in case of a guardian (Gai. 4.92 ; D. 3, 1, 1.6), as it was in some
few other cases (D.
ibid. s. 6; s. 10).
A plaintiff suing in his own person or by a cognitor was not required in any
case to give security. But a plaintiff's procurator or guardian had to give
security that his principal would ratify his acts (
ratam
rem dominum habiturum), otherwise the defendant might be
exposed to a fresh suit by the principal, whereas a cognitor's acts bound
his principal as much as his own acts would. A defendant was in a different
[p. 1.21]position. If the action was
in rem, whether he appeared himself or by others, the
plaintiff was entitled to receive security for due restitution of the
disputed property or its equivalent. If the action was
in
personam, and the defendant was represented by a cognitor, the
defendant had to give security; if by a procurator or guardian, the
representative had to give security for the due performance of the judgment
(
judicatum solvi). If he appeared in
person, he might in special circumstances be required to give security,
either on account of the nature of the action, as for instance an action on
a judgment or for money paid out by a surety (
depensi); or the old action
de moribus
mulieris (cf. Just.
Cod. 5, 17, 11.2); or on
account of his own character--if for instance he was insolvent or was an
heir suspected by the praetor to have insufficient means (Gai. 4.88-102; D.
42, 5, 31).
Checks were provided in several ways against heedless litigation. The
plaintiff was exposed to four risks. (1) To an action for
caltumnia, in which he was condemned if he was shown to have
consciously brought an unjust claim. The penalty was a tenth (of the
claim?), excepting in a suit to prove a man free, in which case the penalty
was a third (of the value of the slave?). (2) To a counter trial (
contrarium judicium). This was allowed in a few
cases only, viz. in an action for
injuriae, the
penalty being one tenth part, and in two other special actions, the penalty
being one fifth part. The plaintiff in the former action, now defendant, was
condemned if he had not succeeded in the action impugned. (3) In some
actions a wager (
sponsio) and counter-wager
(
restipulatio) used to be made for a third
part in an action for a specific sum of money lent, and for a half in an
action for an agreed debt (
pecunia constituta),
and this was dependent simply on success or failure in the action. (4)
Moreover the defendant might put the plaintiff on his oath as to his honesty
in bringing the suit. If the oath was executed, the plaintiff was no longer
liable to the other risks; and generally a defendant might bring one only of
the actions named (Gai. 4.174-181).
The defendant was similarly exposed to risk if he allowed the action to
proceed. (1) In the case of actions on a judgment or on money paid out
(
depensi), or injury under Aquilius'
statute, or legacies (
per damnationem), if the
defendant denied and judgment went against him, the damages were doubled.
(2) In the cases of loan certain and of an agreed debt a wager was made, and
the defendant had to pay if he lost the suit. (3) An oath might be tendered
him on the honesty of his denial (Gai. is. 171-173). (4) Further, any one
condemned in certain actions become disgraced (
ignominiosus). These actions were theft, robbery with
violence, insult (
injuriae), actions of
partnership, trust, guardianship, commission, deposit. And in the case of
the first three ignominy was incurred by making a compromise as well as by
condemnation (Gai. 4.182).
Ignominia in Gaius
appears to be identical with
infamia in the
Praetor's Edict (D. 3, 2, 1).
Many distinctions and divisions of actions are made. Some of the most
important are the following.
Actio civilis and
actio
honoraria. The former is an action given by the civil law, the
latter one created by the praetor. All actions belong to one or other of
these classes (D. 44, 7, 25.2). As examples may be taken the ordinary
actions in rem, as opposed to the
Publiciana
actio, which the praetor gave to protect one who, without formally
valid conveyance, had had delivery on good ground fiom the owner, but had
not yet held a thing long enough for usucapion to have taken effect (D. 6,
2, 1). So an action for a sum of money if founded on a formal verbal
contract (
stiepulatio) is
civilis; if on informal agreement (e.g.
pecunia constituta), is
honoraria. The distinction was important, not merely historically
but in practice, because as a rule honorary actions could be brought only
within the period of the praetor's office, i. e. only within one year. Civil
actions were not so limited; nor indeed were those honorary actions (e. g.
actions on contract) which aimed at recovering one's property or what is due
to one, rather than inflicting damage on another. These latter actions might
be brought also against the heir of the person bound; others only so far as
the heir was enriched by his predecessor's wrong act (D. 44, 7, 35).
Actio directa and
actio
contraria. Some relations are essentially two-sided, and an
action to enforce the rights of the one party is as likely to be required as
an action to enforce the rights of the other. Such for instance are the
actions
ex empto and
ex
vendito, the purchaser suing for the delivery of the thing
purchased, the seller for the purchase money. But in other cases an action
is more inherently likely on one side than on the other, but yet the
relations may beget occasion for an action in the reverse direction. Thus
for instance an
actio commodati or
depositi is usually
directa, i.e. to enforce the rights of the person who has
deposited or lent a thing; but circumstances may make the recall of the
thing lent unfair to the borrower, and then he has an
actio commodati contraria (D. 13, 6, 17); or the receiver may
have had to incur expenses for the protection or other care of the deposit,
and he has then an
actio depositi contraria (D.
16, 3, 5, pr. See also
Cic. Off.
3.1. 7, 30). This use of
in factum
must be carefully distinguished from
actio in factum
concepta.
Actio directa and
actio
utilis. The term
directa, besides
being opposed to
contraria, is also opposed to
utilis. Here the great sphere of the
praetor's action is seen. The precise action granted by the civil law was
not applicable to numerous cases which came within its spirit but not within
its letter. The praetor allowed an action which was not the same in theory,
but analogous to it, and this was called a
serviceable action, or not infrequently an “action on the
case” (
actio in factum). The Aquillian
statute was noticeably extended in this way by the praetor. A person who did
not actually with his own person kill a slave did not come strictly within
the statute; but if he pushed the horse or mare so that they killed the
slave, an
actio in factum was granted (D. 9, 2,
7.3). A usufructuary was not properly an owner: this statute gave the action
to the owner; but the praetor extended it to the usufructuary, and he
therefore had an
actio utilis (D. 9, 2, 11.10).
The incidents of such an action were of course conformable to those of the
prototype, the actual case being by a fiction (see above) treated as
identical in its
[p. 1.22]claim to remedy with the statutable
or original action. The name of the prototype was often used with
quasi prefixed for that of the analogous action,
e.g.
quasi Serviana (D. 16, 1, 13).
Actio stricti juris and
actio
bonae fidei. The stern simplicity of the old law, which would
hear of nothing but definite obligations created by precise words, had to
give way before the complicated circumstances and countervailing equities of
the business of the world. The
actio ex
stipulato was the type of the former; commercial intercourse gave
rise to many instances of the latter. Gaius enumerates the latter as sale
and purchase, letting and hiring, unasked agency (
negotiorun gestorum), commission, deposit, trust (
fiduciae, i.e. mortgage), partnership, guardianship
(and here the passage is mutilated, but we may probably add) wife's
property, loan, pledge, division of inheritance, partition, actions on the
case (Gai. 4.62; Just.
Inst. 4.6.28). In all these the judge
was instructed to examine and estimate the rights of the parties in the
matter so far as they were founded on good faith (
Cic. Off. 3.1. 7, 30). And of course therefore
any debt due from the plaintiff to the defendant might be set off against
anything due to the plaintiff on his claim. Justinian in some degree broke
down the distinction between those two classes of actions
(
Inst. 4.6, § § 29, 30).
The word
actio itself is in some passages
opposed to
petitio and
persecutio, as for instance by Papinian (D. 44, 7, 28)
actio in personam infertur; petilio in rem ; persecutio
in rem vel in personam rei persequendae gratia: and Ulpian (D. 5,
16, 178) refers
persecutio to extraordinary
proceedings, such as those for enforcing a trust (
fidei
commissum). But this must be regarded as only applicable to
some particular uses; e. g. in the Aquillian stipulation (D. 46, 4, 18) and
other places where the words are obviously to be distinguished from each
other. Otherwise
actio is general, and even
includes interdicts (D. 44, 7, 37).
Judicium is
often found as equivalent to it, but there appears to have been an
inclination to use the latter word in preference in cases where both parties
might be regarded as indiscriminately plaintiff and defendant. Such are the
judicia finium regundorum (D. 10, 1),
familiae erciscundae (ib. 2),
communi dividundo (ib. 3).
Poenalis actio was one where neither the
recovery of a thing nor of damages proper (both of which were said to be
rei persequendae causa) was the object, but
the pecuniary penalty affixed by the law to certain acts (
poenae persequendae causa). Such was the
actio furti and the
actio
injuriarum (Gai. 4.7). In other actions, such as those in which
denial exposed the defendant to the risk of double damages (see above), both
damages and penalty were the object of the action (Gai. 4.9). A penal action
did not lie against the heir, unless it had been commenced in the life of
his predecessor (D. 44, 7, 26; s. 33).
The same fact often gave opportunity for several actions; sometimes the
plaintiff had to choose between them, sometimes he might bring one, and then
if his claim was not satisfied by that bring another action of a different
class for the residue (D. 44, 7, 34; s. 31).
The plaintiff is usually called actor or is
qui
agit, sometimes
agens or (especially
in actions
in <*>m)
petitor. The defendant is
reus,
or is
unde petitur, or
cum
quo agitur, or
qui convenitur, or (in
actions
in rem) possessor. The plaintiff is
said
agere, petere, or
actionem, intendere, experiri, convenire; the defendant
convenire, suscipere, actionem or
judicium, &c.
III. Beside this formulary procedure, in which the praetor gave instructions
to a judge or judges, and this judge actually tried the issue so directed,
there were other matters which the praetor himself heard and decided
(
causa cognita decrevit). From this hearing
by the praetor himself, these trials were called
cognitiones. These were partly of an executive character,
such as issuing injunctions (
interdicta) to
stop apprehended wrong, or conferring security, or putting a party into
possession of disputed property. But there were other matters which, on
account of the delicacy of their character, were not passed through the
usual forms. Of these the most important were trusts (
fidei commissa), which, being regarded at first not as legal
obligations, but as matters of honour and propriety, were not subjects for
ordinary procedure, but required the special cognizance of a high officer of
state (Gai. 2.278; Ulp. 25.12). Similarly claims for alimony by parents
against children or the reverse (D. 25, 3, 5); questions of the proper
remuneration of physicians, teachers, advocates, &c. (D. 5, 13, 1),
and some other matters (e. g. Gai. 1.53) were also placed outside the rank
of ordinary suits (
extra ordinem). In the
course of time, after the period of the classical jurists, this system
became universal. The various officials of the empire heard and decided all
suits themselves, and the distinction of
praetor and
judex, jus and
judicium, ceased, the general principles of decision
remaining the same. Exactly how and when this change in the form was brought
about we do not know. A law of Diocletian A.D. 297 (
Cod. 3.3,
2), which directed governors of provinces (
praesides) to decide cases themselves, so far as their public
duties allowed them, instead of appointing
pedaneos
judices, is regarded by most writers as the origin of the
change, and Constantius (A.D. 342) abolished the formulae
(
Cod. 2.57 (58), 1). Justinian says, “all trials are
now
extra ordinem”
(
Inst. 4.15, 8 ; 3.12, pr.). But the power of delegating
their jurisdiction, at least in less important cases, was still reserved to
the governors (
Cod. 3.3).
In the extraordinary trials by the praetor the defendant was summoned
(
evocatus), not by the plaintiff but by the
praetor by notice (
denuntiatio), either
conveyed to him or affixed to the praetor's notice-board (cf. D. 42, 1,
53.1). The notice was repeated three times, and, if the defendant did not
appear, the case was proceeded with in his absence (Paul.
Sent. 5.52.7). In Justinian's time suits were begun generally
by a written bill of complaint (
libellus)
delivered to the judge, and by him communicated to the defendant.
The checks against reckless litigation were simplified by Justinian, and
these consisted (1) in an oath taken by each party of his
bona fide action, and (2) in the costs of the suit being
thrown on the loser (
Cod. 3.1, 13.6), i. e. probably if he
had no reasonable case (cf.
Inst. 4.16.1,
improbus litigator, D. 5, 1, 79; 31, 78.2).
For further details respecting the constitution of the courts and proceedings
at trials, see JUDICIUM; for criminal procedure,
see also
[p. 1.23]CRIMEN The principal actions will be dealt with under their
respective names.
The best treatises on the subject are Keller's
Civil-Prozess
(5th ed. edited by A. Wach, 1876), which gives references to the other
writers ; and the elaborate work of Bethmann-Hollweg,
Die
römische Civil-Prozess, 1865, foll.
[
H.J.R]