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the head of the formula, after the appointment of the iudex, whence their name praescriptiones. This was frequently the case when the defendant's contention was that the action ought not to be tried at all, because it would prejudge a 'causa maior' (praescriptio praeiudicii); and the purpose of thus placing the objection in the foreground was to indicate to the iudex that he was first to examine into its truth or falsehood, and if he found it well-grounded, to suspend the hearing until it was removed by the decision of the larger suit. Other objections of the same character were that the action was beyond the competence of the court (praescriptio fori), or was barred by lapse of time (praescriptio temporis); and the actual form they took was the same as that of praescriptiones pro actore (p. 628 supr.), viz. ea res agatur, etc.: see Gaius iv. 133. The practice of formulating such objections merely as exceptiones had commenced as early as Cicero (de invent, ii. 20), and Gaius tells us (iv. 133) that in his time praescriptiones of this kind were entirely obsolete: in speciem exceptionis deducuntur. The change was material; for now, if the defence was established, the defendant was entitled to acquittal; whereas before, when it took the form of a praescriptio, the hearing was only suspended, and he might be condemned after all.
The proceedings in iure may now be imagined at an end. Their object was to formally define the issues to be tried in the action; to give a legal form to a dispute which had hitherto existed only as a matter of fact. When this had been done, and the formula finally drawn up, the magistrate had no more to do; he was said 'iudicium dare,' the 'res' was ' in iudicium deducta ;' iudicium takes the place of ius. This stage in the proceedings, at which the action passed from praetor to iudex, or, according to Roman ideas, at which it first became an action at all, was called litis contestatio; no longer a solemn appeal to witnesses, but merely a name retained for convenience sake from the older system to mark a moment most eventful for the parties, and attended by important consequences which are described in detail by Mr. Poste 1.
1 Note on Gaius iii. 180. Briefly, the effects of litis contestatio in the formulary period are as follow :—
(1) It consumes the plaintiff's right of action; res in iudicium deducta est, and de eadem re bis experiri non licet. (a) It is in its nature a quasi-contract, and so (a) 'novates' the preexisting obligation between the parties; (¿) engenders an obligation, binding on them, to abide by the iudicium whatever its result. (3) It interrupts prescription of the right of action. (4) It affects the amount of the condemnation by being supposed to be followed immediately by judgment: see Poste, p. 450. (5) It converts the object of the suit into 'res litigiosa,' and thus makes
Of the proceedings in iudicio Gaius gives us no information; they consisted, of course, of evidence and argument, and may be passed over in favour of matters of which we have more accurate knowledge. Assuming, however, that they terminate in a sententia for the plaintiff (condemnatio), two new questions present themselves. Firstly, is the judgment final? or is there any system of appeal? And, secondly, how is the defendant compelled to pay the money in which he has been condemned? in other words, what are the proceedings in a Roman execution?
The strictly co-ordinate authority of the 'magistratus maiores' in republican Rome excluded the possibility of a true appellate jurisdiction in the pre-imperial period. At that time, in fact, the sententia of a iudex did not admit of revocation or alteration save by the process of in integrum restitutio (note on Bk. iv. 6. 33), though it must be remembered that judgment in an ordinary action was not absolutely final; for the defendant, who was presumptively condemnatus, could contest its validity by refusing to pay the sum in which he had been condemned, and defending himself, at the risk of condemnatio in duplum, against the actio iudicati brought for its recovery. This, however, was not an appeal, which implies the rehearing of the suit by a higher tribunal. With the fall of the Republic a regular appellate jurisdiction was rapidly developed, and the privilege of' appealing unto Caesar' was soon understood to be common to citizens of Rome all over the empire. Under Augustus the praefectus urbi was judge of appeal for Rome, and a vir consularis, though sitting in the capital, bore the same relation to each of the provinces. Nero invested the Senate with a supreme appellate jurisdiction co-ordinate with his own, and by the time of M. Aurelius the right had been established of appealing from the sententia of a iudex to the magistrate who appointed him. Thus the tribunals had gradually arranged themselves in a definite series of higher and lower instance, and a suit might be carried from iudex to Emperor through the appointing municipal magistrate, the praetor or praeses, and the praefectus urbi or praetorio in succession. The procedure on appeal was that which will shortly be described as 'extraordinaria,' dispensing, in its commencement, with the ordinary institution by formula, and terminating in a decretum, not a sententia; definite periods of time were prescribed within which the appeal must be lodged, and its various stages completed. A powerful check on rash appeals was the
its alienation unlawful pendente lite, Gains iv. 117. (6) It prevents any subsequent Change in the parties without complete reconstruction of the formula (Translatio). obligation of the appellant to pay quadruple costs to his opponent if he failed, in addition to a penalty equal in value to one third of the object in dispute.
The simplest mode of executing a judgment for a liquidated sum would seem to be to seize, by state agency, a sufficient amount of the 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 property
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, though abolished as a legis actio by the lex Aebutia, it was retained in its milder form by the praetor 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 pecu
1 As to the greater antiquity in the Roman system of personal execution, which is denied by Savigny, see note on Bk. Ш. 12 supr.
niary 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 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 circumstances. The nature of cessio bonorum has already been described 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
1 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.
sold, the debt discharged, and the surplus, if any, returned to the debtor. This is not unfrequently called pignoris capio (e.g. Cod. viii. 23 'si in causa iudicati pignus captura 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 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 himself1.
1 For one very important branch of the extraordinaria cognitio (in integrum restitutio) see note on Bk. iv. 6. 33 supr.