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§ 55. transformation of a liability (infra, § 80 II). Once the issue has been joined, it is no longer the performance of the act originally due that the plaintiff can claim from the defendant by means of his actionfor to allow that would be to allow a repetition of the same action --but merely the continuation of the proceedings that have been commenced: ante litem contestatam dare reum oportere, post litem contestatam condemnari oportere (Gajus III § 180). In consequence, moreover, of the principle of a money condemnatio (p. 281 ad fin.) the original claim of the plaintiff is, in the classical law, transformed into a money claim. Finally, litis contestatio has the effect of converting a claim which, in itself, is not transmissible to the heir (e.g. the actio injuriarum) into a transmissible claim. The pendency of the cause, which is the result of the litis contestatio, has therefore this effect in regard to legal procedure that it consumes and, at the same time, resuscitates the right which the plaintiff is seeking to enforce.

II. Judgment.

The peculiar effect of a judgment consists in its legal force. When no longer subject to a revision on appeal, it operates like a statutory rule for the particular case adjudged upon. A defendant, by pleading a previous judgment, is able not merely to frustrate the repetition of the same action, but also-by means of what is called the 'positive' function of the exceptio rei judicatae-to rebut any subsequent claim directly conflicting with the decision contained in such judgment. If the judgment condemns the defendant to pay, or if the defendant makes a formal confessio in jure (supra, p. 58), such judgment, or confessio in jure-provided the latter is followed, where necessary, by a litis aestimatio (cp. 1. 6 § 2 D. 42, 2)-entitles the plaintiff to proceed against the defendant by actio judicati. The actio judicati involves a condemnation 'in duplum' as against a defendant who denies liability, and it results in execution, i. e. in the compulsory enforcement of the plaintiff's right.

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III. Execution.

In the ancient law every execution was on principle personal

Cp. Degenkolb, Einlassungszwang und Urteilsnorm (1877), p. So ff.; O. Bülow, Gesetz u. Richteramt (1885).

(manus injectio, supra, p. 246), and resulted in the bondage of the § 55. debtor and a right in the creditor to sell his debtor (trans Tiberim), or to kill him (p. 53). The creditor's right to sell or kill his debtor was abolished by the lex Poetelia (313 B. C.). Nevertheless bondage for debt (operating, however, as a matter of fact, only in the form of imprisonment for debt) continued to be the principal civil law method of execution. When the person of the debtor (whom execution placed in the position of a slave in regard to his creditor) passed into the power of the creditor, the same fate befell his whole estate and probably also his whole family, i. e. the aggregate of those who were subject to his potestas. Thus every personal execution necessarily-though only indirectly-involved an execution against the debtor's property, because it went, in all cases, against the debtor's entire person and estate, quite regardless of the actual amount due. In executing his debt, the creditor was merely enforcing that self-pledge which was of the essence of every contract of debt of the ancient type (pp. 52, 65). But the idea underlying such a self-pledge was that it constituted a conventional penalty: the debtor voluntarily consented to surrender his person and property to the creditor in case he failed to redeem his obligation. Thus the aim of execution in the old times was not, as it is nowadays, primarily to satisfy the creditor, but rather to punish the debtor by allowing the creditor to attach what the debtor himself had pledged for the debt, viz. his own personality with everything appertaining to it. The praetor was the first to grant direct execution against the property of the debtor. He did so by means of a so-called 'missio in bona,' that is, by means of an order empowering such of the creditors as had applied to him for that purpose to take possession of the entire estate of the debtor. After the lapse of a definite interval, during which it was open to other creditors to join the number of those who had obtained the missio in bona, the latter proceeded to elect from among themselves a 'magister,' or manager of the estate, who in due course sold the property en bloc (venditio bonorum)3. In consideration of his acquiring the assets, the

The effect of the praetorian missio in bona was to confer on the creditors

who obtained it a private right to sell
the entire estate of the debtor, and the

$55. purchaser of the estate (bonorum emtor) paid the creditors in possession certain percentages on their claims. The execution was therefore uniformly directed against the entire estate of the execution-debtor, and it made no difference whether the missio in bona had been obtained by all the creditors, or only by some of them, or even by a single creditor. Both in this circumstance and in the infamy which attached to the debtor in consequence of the missio in bona, we can trace the associations of the old personal execution, the debtor being regarded as having pledged to every one of his creditors not only his entire property, but also his honour.

Thus the creditors had the option proceeding either by personal execution, according to the civil law, or by real execution, according to the praetorian law. In consequence of a lex Julia (probably not

magister was one of the creditors in question whom his co-creditors elected as their master' to exercise this right on their behalf. If after the election of the magister, but before the sale had been actually carried out, another creditor also obtained missio in bona, this other creditor (who of course had taken no part in electing the magister) ranked independently side by side with the magister, and had the same rights. The magister was merely the agent of the particular creditors who had elected him; he was in no sense a public officer entrusted by the praetor with the conduct of the bankrupt's affairs. The case was different if the praetor, instead of putting the creditors into possession, committed the management of the debtor's estate to a curator bonorum,' whose duty it was to realize the estate in separate lots and pay the creditors pro rata out of the proceeds. Under this system of selling the estate piecemeal the bankrupt was at no time dispossessed of his whole property, and he consequently escaped infamy. creditors, again, were paid, not by the bonorum emtor, but-as was only fit and proper-by the debtor himself (through the medium, namely, of his curator), and if there was any surplus, the debtor got the benefit of it. This procedure, which was considered less dishonouring than venditio bonorum, was at first only employed in favour of

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senators in embarrassed circumstances, but afterwards its use became general. The modern idea of bankruptcy procedure as a compulsory procedure in execution, directed against the entire estate of the debtor and operating on principle in favour of the whole body of creditors, has no place in the venditio bonorum, but is realized, to some extent, in the duties assigned to the curator bonorum. For the old magister was never anything more than a creditor acting exclusively in the selfish interests of himself and his electors, whereas the curator appointed by the praetor represented the principle of the public interest which requires that bankruptcy proceedings shall be conducted on a uniform plan and that all the creditors shall obtain an equitable satisfaction of their claims, while at the same time no unnecessary damage is inflicted on the debtor. The Romans do not, however, seem to have carried the development of this principle to a complete conclusion; in other words, the curator never seems to have attained to the position of a public officer charged with the conduct of a state-regulated procedure in bankruptcy. Mention is made of a 'curator' elected by the creditors, but it is not clear what his legal position was. Degenkolb, Magister und Curator im altrömischen Concurs (Decanal Thesis, Leipzig, 1897).

promulgated till Augustus) the debtor was enabled to exclude this § 55. option of the creditors by making a voluntary assignment of his property (cessio bonorum), in other words, by voluntarily bringing about an execution against his entire estate. If he adopted this course, the creditors had to rest satisfied with real execution of the praetorian type, while on the other hand the debtor escaped infamy, and acquired the 'beneficium competentiae,' i. e. the right, on execution, to retain so much of his property as was necessary for his bare subsistence (ne egeat), he being only condemned 'in quantum facere potest.'

In addition to this general execution against the debtor's estate, which the plaintiff could bring about by an actio judicati, the praetor also developed a 'special' form of execution, under which portions of the debtor's property were seized by way of pledge (the so-called 'pignus in causa judicati captum')-a procedure which was resorted to in certain cases on the postulatio of the plaintiff according as the praetor, acting extra ordinem, judged fit. If the magistrate had decided, in a proceeding extra ordinem (§ 56), that the defendant was bound to restore or deliver up some definite object, a compulsory process which aimed directly at the surrender of this particular object was similarly available, the defaulting debtor being threatened with a pecuniary mulct or, if necessary, with compulsion manu militari. In the later Empire the extraordinary procedure became the ordinary form of procedure, and it was consequently this direct and special kind of execution that was resorted to, on principle, in the generality of cases (§ 57). The penal effects of the old law of execution, viz. the infamy of the debtor and the destruction or, at any rate, the depreciation of the debtor's personality which resulted from his being each time dispossessed of his entire estate, had completely disappeared. Henceforth execution in civil proceedings became what it is now, a procedure the sole aim of which is the satisfaction of the person entitled to sue.

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§ 56. The Procedure Extra Ordinem. Interdicta.
In Integrum Restitutio.

I. The Procedure extra ordinem.

The procedure extra ordinem (scil. judiciorum privatorum)1 is the procedure in which no judex is appointed, in which there is, therefore, neither litis contestatio (supra, p. 238), nor judgment (sententia, supra, p. 239) in the technical sense of the term. The entire proceedings are conducted before the magistrate in jure who, after investigating the matter in person ('causae cognitio'), pronounces the decision himself (decretum, interdictum). The procedure extra ordinem-a procedure not per formulam, but per cognitionem-is the form of procedure in which the magistrate has occasion to give free play to his official power (imperium), and it signifies formally an administrative procedure as opposed to the regular judicial procedure with its concomitant appointment of a judex. In the ordinary procedure the coercive power of the magistrate is, on principle, put out of sight, and the whole matter ends with the verdict of a sworn judge, the effect of which is merely to declare the right of the plaintiff in an unequivocal form, in the form, namely, of an indisputable money claim, so that, if the plaintiff wishes to obtain execution, he must bring a second action, the actio judicati. On the other hand, the whole machinery of the extraordinary procedure is calculated from the very outset to exhibit the coercive power of the magistrate (the imperium), and to ensure the enforcement of the magisterial will by multae dictio, pignoris capio, missio in possessionem, the physical interference of the magistrate's subordinate officers (manus militaris), and other means. In the ordinary procedure it is the power of the law, in the extraordinary procedure it is the sovereign power of the magistrate to which effect and expression are given 2.

1 Procedure extra ordinem means literally a procedure 'out of the (regular) order.' Matters tried extra ordinem were not tied to the time appointed for the provincial assizes (the time of the conventus, the rerum actus), nor again

to the order in which ordinary causes had to be entered for hearing (the 'ordo judiciorum'). Cp. Hartmann-Ubbelohde. (op. cit., supra, p. 238, note 1), p. 418 ff, Cp. A. Pernice, ZS. d. Sav. St., vol. v. p. 29 ff.

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