noxal actions, which compelled the father of a son or owner of a slave or of a beast that had injured a neighbour's property either to make compensation or to surrender the author of the damage.

The proceeding damni infecti nomine by action of the law, from its similarity to the proceeding in aquae pluviae arcendae, may be inferred to have been a form of judicis postulatio.

§ 34. Gaius appears to have divided Fictions into two classes, those which made a reference from the formulary system to the older system of procedure, and those which made a reference from rights protected by the praetor to rights recognized by the civil law. The former class were not an extension of the law, but only preserved to a plaintiff the remedies which he otherwise would have lost by the change of procedure when the actions of the law were abolished. For instance, the fiction of Pignoris capio was employed to preserve unimpaired the rights of the revenue contractor and as a measure for assessing the damages to which he was entitled against a defaulter.

The second class of fictions was an extension or reform of the law, protecting persons whose rights had previously not been recognized, or mitigating the rigours and liberalizing the narrowmindedness of the ancient barbarous legislation: granting to the bonitarian proprietor by inheritance or purchase the protection enjoyed by the quiritarian proprietor; giving to the alien the redress provided for the citizen, and preserving to the creditor the remedies extinguished by the debtor's diminution of status. In their task of ameliorating the law the praetors proceeded as unobtrusively as possible, by tacit rather than by open legislation, and rather by innovations in the adjective code, to use Bentham's expression, or code of procedure, than in the substantive code. The introduction of the formulary system, giving them authority to create new actions, had virtually invested them with much legislative power. The new actions introduced by the praetor were called actiones utiles. Utiles actiones were either fictitiae or in factum. Let us examine the mode of their operation. The logic of justice as administered in the courts may be regarded as a syllogism, of which the major premiss is the substantive law annexing a certain remedy to certain conditions (to a certain title); the minor premiss the proposition that between the present plaintiff and defendant these conditions are satisfied;

and the conclusion, the enforcement of the remedy in favour of the plaintiff by the executive. Let A represent the remedy or sanctioning right, B the conditions or title, C the plaintiff. (If C represents the defendant, A will represent the sanctioning duties or obligations). The praetor proceeded in two ways, with or without the use of fiction. Without expressly asserting the major premiss, B is A, or avowedly introducing a new principle of substantive law, it is clear that he introduced it by implication if he made the conclusion, C is A, follow from the minor premiss, C is B. In granting an actio in factum, one of his most potent instruments, that is, an action whose intentio in factum concepta, of the form, Si paret. . . . fecisse, proposed a single issue of fact, the praetor tacitly introduced a new major premiss, B is A, or converted a rule of equity or public opinion into a principle of substantive law, without any fiction or reference to previous rules. When he granted a fictitious action, that is, one whose intentio in jus concepta, of the form, Si paret. . . . oportere, admitted issues both of fact and of law, the fiction furnished an exact measure of the extent to which the old law had been abandoned. If the old law is represented by the major premiss, B is A, the praetor might suppress some element, X, of the title B to which the remedy A was annexed; and make the conclusion, C is A, follow from the minor premiss, C is B minus X. The fiction would be the false assumption that C (the plaintiff's case) satisfied the abrogated condition X whenever it was proved to satisfy the remaining elements of B. By ruling that the fictitious proposition, C is X, should not be called in question, and that the defendant should not be allowed to demur to the plaintiff's claim on the ground that X was unsatisfied, the praetor would virtually abrogate the old law, B is A, and substitute for it the new law, B minus X is A. In the cases given by Gaius the condition represented by X relates to suecession, usucapio, citizenship, status. It might relate to delivery, contract, alienation, or any other legal act. In the actio Pauliana, protecting creditors against fraudulent alienations, the fiction was an assumption of non-delivery (rescissa traditione). Restitutio in integrum of a minor or person who had acted under constraint of fear might assume the form of a fictitious action which treated the rescinded act as unperformed (rescissa alienatione).

§ 35. The purchaser of a bankrupt's estate, unlike the purchaser at a sectio bonorum, or sale sub hasta of the confiscated goods of a criminal, though a universal successor, only took, in the language of English law, the equitable and not the legal estate. To protect his rights the praetor allowed him to sue in the character of heres, or successor to the legal estate.

The praetor Publius Rutilius may either have been a person who was praetor in 167 B.C., or a person who was consul in 104 B.C. The formula which he introduced was used by the cognitor and procurator, 4 § 86. Before his time, apparently, the lawyers entertained a superstition about a variance between the intentio and condemnatio.

The actio Serviana here mentioned was apparently not the same as the actio Serviana whereby a lessor could recover the goods of a colonus which had been pledged as a security for the payment of

rent.

§ 36. A Quintus Publicius is mentioned by Cicero, Pro Cluentio, 45, as praetor in B.C. 66 or shortly before. The actio Publiciana, 2 § 41, was used by the purchaser of a res mancipi who had taken by simple delivery what could only be conveyed by mancipation; or by a grantee from a grantor who was not proprietor. The abolition of the distinction of res mancipi and nec mancipi and of quiritarian and bonitarian property would render the action unnecessary in the first of these cases and probably in many cases of the second class. In the terms of the edict, Si quis id quod traditur ex justa causa non a domino et nondum usucaptum petet, judicium dabo, Digest, 6, 2, 1, the words 'non a domino,' which limit its application to the second class, were probably intercalated by Justinian. But the action would also be convenient to an actual proprietor who wished to be relieved of the necessity of proving his title.

The form of the actio Publiciana that we have considered proceeds on the supposition of the accomplishment of a non-accomplished usucapio. Another form, called by the commentators contraria Publicianae or Publiciana rescissoria, proceeded on the supposition that an accomplished usucapio had not been accomplished. If the goods of the plaintiff were acquired by prescription during the absence of the plaintiff in the service of his country or during his captivity in the hands of the enemy, or if they were acquired by a person in the power of an absentee defendant, in any of which cases the plaintiff would have been unable to interrupt

the prescription by instituting legal proceedings, he could obtain a restitutio in integrum by a rescissory action commenced after his own or the defendant's return. As this was in direct contravention of the civil law, the action was required to be brought within a year from the removal of the disability, a period which Justinian extended for all restitutiones in integrum to four years. The other Publician action, as aiding rather than infringing the civil law, was perpetual. In the case of an absentee defendant Justinian made the Publiciana rescissoria unnecessary by giving the plaintiff a means of interrupting the usucapio (interruptionem temporis facere -usurpare). He allowed him to do so by making a protestation, in person or by writing, before the praeses provinciae, or bishop, or defensor civitatis; or, in their absence, by affixing a protestation, signed by the public notaries (tabularii) or by three witnesses, in a public place at the domicile of the possessor, Codex, 7, 40, 2.

§ 38. By a positive rule, of which we are unable to give the rationale [see page 109], the change of status produced by coemptio and adrogatio extinguished the debts of the wife or adrogatus, and the husband or adrogator acquired by manus and patria potestas their rights without their liabilities. To meet this the praetor gave the creditor an actio rescissoria: Ait praetor: qui quaeve, posteaquam quid cum his actum contractumve sit, capite deminuti deminutaeve esse dicentur, in eos easve quasi id factum non sit judicium dabo, Dig. 4, 5, 2. If the action was not defended by the husband or adrogator, the praetor gave the creditor missio in possessionem and power of sale against all the property of the wife or adrogatus, Gaius, 3 § 84.

DE PARTIBUS FORMULARUM.

§ 39. Partes autem formularum hae sunt demonstratio, intentio, adiudicatio, condemnatio.

§ 40. Demonstratio est ea pars formulae quae praecipue ideo inseritur, ut demonstretur res de qua agitur. velut haec pars formulae: QUOD AULUS AGERIUS NUMERIO NEGIDIO HOMINEM VENDIDIT. item haec QUOD AULUS AGERIUS APUT NUMERIUM NEGIDIUM HOMINEM DEPOSUIT.

$39. The formula is composed of the Demonstratio, the Intentio, the Adjudicatio, the Condemnatio.

$40. The principal function of the Demonstratio is to indicate the subject of dispute, as in the following example: Whereas Aulus Agerius sold a slave to Numerius Negidius,' or, 'Whereas Aulus Agerius deposited a slave in the hands of Numerius Negidius.'