debtor's property, and from the proceeds of its sale to satisfy the creditor's claim; should his property be insufficient, to make him a bankrupt. Putting aside the exceptional application of pignoris capio in the legis actio period, this distinction between execution for debt and execution in bankruptcy was not recognised by the Romans until the Empire. If a man would not satisfy a judgment which had been recovered against him, there was no alternative but to proceed as in a case of genuine insolvency. For a very long while indeed the Romans did not even allow at all that direct and immediate execution upon a debtor's property which seems the natural and reasonable mode of satisfying a creditor's claims: with true legal conservatism they clung closely to the conception of an obligation as a personal right, a right which availed only against the debtor's person, and not against property of any kind: for immediately it conferred any right against the property, it ceased, pro tanto, to be an obligation. It is the person, they said, who is obligatus, and it is the person to whom the creditor must look to be paid; there is no execution except personal execution, and it is for the debtor to say whether he will save himself by sacrificing his property1.

The earliest execution procedure is that of manus iniectio as regulated by the Twelve Tables, which is described at length by Mr. Poste in his note on Gaius iii. 77. As has already been observed, its severity was mitigated by a lex Poetelia, and no doubt indirectly by the lex Aebutia; in its milder form it is in full operation under the formulary system, during which the damnatus in an actio iudicati, if the debt remained unpaid for thirty days, was brought before the magistrate, and unless he discharged it at once, or gave security 'iudicatum solvi' through a vindex who undertook his defence, he was 'addictus' to the creditor, and remained in a condition of quasiservitude until by his own labour or the intervention of friends the debt was extinguished.

As distinct from this personal execution, execution against the property was first employed only in the case of debts owed to the state. If a man were condemned upon a criminal charge to a pecuniary penalty, and refused or was unable to pay, the praetor would grant possession of his estate to the quaestors, who sold it to the highest bidder (sector). This principle was first extended to private debts by a praetor called, according to Gaius (iv. 35), Publius

1 As to the greater antiquity in the Roman system of personal execution, which is denied by Savigny, see note on Bk. iii. 12 supr.

.

Rutilius, apparently the Rutilius who was consul B. C. 105, after whose reform Proprietary' execution was called bonorum emptio or venditio. The procedure is fully described by Mr. Poste in the note already referred to. The creditor or creditors were put in possession of the bankrupt's estate by the praetor; then, at fixed intervals, followed three decrees: the first advertising the sale, the second authorising the creditors to choose from among themselves a 'magister' to superintend it, and the last enabling them to publish the leges or conditions under which it would take place. Finally, after a third interval, the estate or universitas iuris was put up to auction, and knocked down to the highest bidder, i. e. the person who practically offered the creditors the highest percentage on their claims, and who was regarded, by a fiction, as the bankrupt's heir, in which character he sued the debtors of the estate; or, as an alternative for this fiction, he might employ the formula Rutiliana (Gaius iv. 35), in which he was represented as the insolvent's agent, the insolvent being named in the intentio, and himself in the condemnatio. These proceedings did not exempt the after-acquired property of the bankrupt from the claims of his creditors, who could take action against him repeatedly until they had been satisfied in full; and in consequence of them he became infamis. For many years creditors seem to have had the privilege of choosing between the two systems, the debtor having no means of saving himself from the semi-servitude of the older procedure if his adversary preferred it to bonorum venditio; but by the introduction of cessio bonorum, under one of the first two Caesars, this ceased to be the case under ordinary circumThe nature of cessio bonorum has already been described

stances.

in the note upon Bk. iii. 12 supr.

It has been observed that (apart from certain exceptional cases under the legis actio procedure) we meet with no execution for debt proper until the Empire. It then became usual for the magistrate, upon the application of a judgment creditor, to send an officer of the court (apparitor, viator) to seize as much of the debtor's property as would cover the debt. This was held for two months by way of pledge or security, at the end of which, in default of payment, it was sold, the debt discharged, and the surplus, if any, returned to the

'The acts of bankruptcy, as they might be called, upon which bonorum venditio lay are specified by Gaius (iii. 78), the cases being those of a debtor absconding (latitans) or indefensus, a judgment debt unsatisfied for thirty days, and decease of the debtor leaving no lawful successor civil or praetorian.

debtor. This is not unfrequently called pignoris capio (e. g. Cod. viii. 23 'si in causa iudicati pignus captum sit '). Another change in this department of law is found in the procedure in actiones arbitrariae for exhibition or restitution. The defendant was no longer allowed to retain the object on condition of paying damages; the plaintiff could demand direct execution of the judicial arbitratus manu militari, the defendant being condemned only in a sum equivalent to fruits and accessions consumed or wasted. We read of this first in Ulpian, and it seems to have come into use only quite at the end of the formulary period: how far the principle was applied to the specific performance of contracts is uncertain.

Though the ordo iudiciorum privatorum,' or system under which judicial proceedings were divided between magistrate (ius) and iudex (iudicium), was the regular mode of trying suits for centuries after the practical abolition of Statute-Process, cases not unfrequently occurred which the praetor reserved altogether for his own cognisance, and heard throughout and determined without reference to a iudex; in these the cognitio was said to be 'extraordinaria,' i. e. outside the 'ordo' or usual procedure. At first such cases were those only in which a iudicium proper was impossible, or at any rate would in some degree have shocked the Roman sense of what was fit and proper, on account either of the nature of the application, or of the relation between the parties; e. g. complaints of slaves against their masters, freemen against their patrons, children against their paterfamilias, and pupils against their guardians, especially in respect of maintenance, claims for fees (honoraria) irrecoverable at law, and fideicommissa. A petition addressed to the praetor on any of these matters was properly called persecutio; the other party was summoned before him by one of his lictors, and, though incidental points (e. g. aestimationes and questions of account) were often referred to arbitri for examination and report, he heard and determined the matter in person. The decision was called decretum, not sententia, a distinction whose significance will be readily comprehended; a decretum depended for its effect and validity on the imperium, not the iurisdictio, of the magistratus decernens; accordingly it was not necessarily binding on any other magistrate who was not his political subordinate, and therefore was in effect subject to revocation and revision by others as well as by himself'.

1 For one very important branch of the extraordinaria cognitio (in integrum restitutio) see note on Bk. iv. 6. 33 supr.

The constant tendency of the praetor to enlarge the sphere of his extraordinaria cognitio, after the establishment of the Empire, at the expense of the regular procedure by formula, paved the way to the total abolition of the latter. An even stronger influence, which was perpetually working against the ordo iudiciorum privatorum, was the new appellate jurisdiction; for, as has been observed, formulae were employed only in courts of lowest instance1. Eventually the formulary procedure was abolished by Diocletian, A. D. 294, magistrates being compelled to hear and decide suits themselves through all their stages; and even when, from stress of business, they were obliged to refer an occasional action to a iudex, their relation to the latter was no longer that of the older system; the proceedings were no longer divided between ius and iudicium, but the whole of them were delegated; magistratus and iudex, so far as the administration of justice is concerned, are interchangeable terms. As is observed by Mr. Poste2, the libellary procedure in use in the time of Justinian was essentially the same as cognitio extraordinaria 3.

1 A sure index of the increasing activity of the extraordinaria cognitio is the frequent use of the expression 'iudex pedaneus' (xaμaidikaoτýs, Theophilus) by the classical jurists. This originated in the practice of calling the magistrate himself 'iudex,' which was only natural when he took to personally hearing and deciding many actions; iudex pedaneus' is the iudex instructed by formula.

2 Gaius p. 631.

3 Cf. Bk. iv. 15. 8 supr. Several topics which are of importance in the formulary procedure have been omitted in this Excursus because they demand discussion under the later system as well, and consequently are touched upon in the notes to the text of Bk. iv: e. g. Processual Agency, Title 10; Satisdatio, Title 11; Limitation and Pendency, Title 12; Interdicts, Title 15; Restraints upon reckless litigation, Title 16.

INDEX TO THE TEXT.

(The references are to the respective Books, Titles, and Sections.)