The whole proceedings, as well as the arbitrator himself, were under the control of the Prætor or district magistrate, who, if two arbitrators were chosen and they differed, would oblige them to choose a third. Some few matters could not be referred, such as matters affecting liberty or civil condition, and those in which the State had a direct concern, as in all proceedings of a criminal nature (publica judicia). Though the parties could determine by arrangement the precise points to be referred and the formal regulation of the proceedings, they could not restrict the full liberty of discretion and of equitable appreciation to be left to the arbitrator. An arbitrator must be at least twenty years of age.

(7) TRANSFER (Cessio nominum).

It was a general principle that obligations could not be transferred by voluntary alienation. An equivalent effect might, however, be brought about, and the obligation, as existing between the two original parties, extinguished by passing over to another the right of action. This might be brought about either voluntarily or by compulsion voluntarily, in pursuance of a sale or of free gift, as by way of dower; compulsorily, as where one has managed the business of another, and is bound to pass over to his principal the rights of action thence accruing, making the principal thereby, as it was said, an "authorized agent for his own affairs" (procurator in rem suam); or in the case L. 10, § 6, D. of a guardian who has to pass over his rights of (xvii. 1). action to his ward on the termination of the guardianship, or in that of an heir who has, by the terms of the will, to pass his rights of action over to a legatee. The §2, 1 J. (ii. 20), Anastasian constitution prevented a transferee 22, C. (iv. 35). of a right of action on a voluntary sale claiming more from the defendant than the amount of the purchase-money, except on sales between co-heirs, or resulting from family settlements, or in case of debts, which he, who is at once the creditor and vendor, holds by way of security.

It was a fixed rule that whereas no assent to a transfer

of the right of action was required from the debtor, yet nothing must be done to put him in a worse position than he was before. Thus, whatever special pleas on the ground of fraud, or whatever rights to delay, or to set-off, he had against the original creditor, he could use against the transferee in addition to any pleas or rights which might be personally available only against the latter. On the other hand, while the transferee could use all the rights inherent in the nature and circumstances of the debt, he could use none which, by way of accidental privilege, were inherent in the person of the original creditor. On similar grounds a transfer could not be made to a person who would or might enjoy a more favourable position than the original creditor for bringing pressure to bear on the L. 9, § 2, D. (i.` 16), C. (ii. 13, debtor, as to professional advocates, the em18). peror, or the imperial treasury.

Certain classes of obligations could in no case be transferred, as those where the personality of the creditor largely entered into the obligation and affected its quality. To this class belong the obligations of partners and those concerned with the supply of daily support or aliment. So the accessory rights of creditors, as those arising from personal security or a pledge, could only be transferred along with the rights to the principal debt. So likewise actions which have already began could not be transferred. If the transferee knew of the pending action he was fined the whole price paid, which was confiscated to the public treasury. If he was ignorant, he recovered the price, if already paid, and also was entitled to receive from the would-be vendor a third part of the proceeds of the action. But the transfer of rights of action arising out of dealings with dotal and hereditary estates was excepted from this rule.

L. 2-4, C. (viii. 37).

(8) BANKRUPTCY (Cessio bonorum, curatela).

From very early days in the history of Rome, certain extra-judicial modes of securing the interest of creditors in the event of their debtor's insolvency were a marked peculiarity of Roman law. The earliest remedy in the

hands of creditors seems to have been that supplied by the spontaneously developed tie arising out of a fictitious sale, by which a borrower sold himself and all his belongings to the lender, conditionally on the debt not being repaid at the proper date. The debtor was said to be nexus, and the transaction was the species of mancipatio, which was called nexus or nexum. It would seem from a well-known passage of the XII. Tables, from Aul. Gell. xx. an antiquarian dissertation in the "Noctes 1. See Mayntz Attica" of Aulus Gellius, and from a variety of indisputable events of great historical importance, that the defaulting borrower in the case of such an engagement became his creditor's bondman, if not strictly slave, and was customarily confined as a prisoner on the creditor's premises, always supposing that the debtor's estate and goods were insufficient to meet the debt.

in loc.

In default of the special security by way of nexum, which operated independently of judicial intervention, a creditor had been obliged to have recourse to the magistrate who, after judgment at law, would first grant a delay of thirty days, and then assign over (addicere) the debtor to the creditor, in such a way that if he failed to satisfy the debt in sixty days he became as much in the creditor's power as if he had originally been bound by way of nexum. The ulterior proceedings seem, if they were ever resorted to, to have been of a severe and indeed barbarous kind.

The lex Patelia Papiria, B.C. 326, abolished the institution of the nexum, liberated all debtors at the time in confinement under it, and modified the severities enforceable on an addictio or judgment against the person.

Between the date of this law and the Christian era, the remedy, of which the State had from time immemorial availed itself for the satisfaction of debts to itself out of the debtor's estate by peremptory sale (sectio bonorum), was extended by a prætor, Publius Rutilius, to the case of a private debtor who fled or hid himself from his creditors, or who voluntarily, in order to protect his person from arrest, submitted his estate to the process of Gaius iv. 35. judicial sale.

Nevertheless, in all cases, the public sale of a debtor's estate, either in his lifetime or on his death (proscriptio et venditio bonorum), included him in the class of "infamous," and, if living, of "suspected" persons. Such a result was Gaius (ii. 1,54), consequently much shunned, and various deId. (iii. 78). Id. vices were resorted to, especially at death, to (iv. 102). obviate it.

The lex Julia, of the time of Julius or Augustus Cæsar, introduced the voluntary surrender (cessio bonorum) of a debtor's estate for the satisfaction of his creditors, so as to avoid, in some cases, the infamous circumstances Gaius (iii. 78, 79), D. (xlii. of a public sale, as conducted under the older 3), C. (vii. 71). law. On making the surrender, either a private composition was made with the creditors or a sale took place. In this last case the operation was extended over two stages, and was the same in form as the forced sale under the Rutilian law. For thirty or fifteen days, according as the defaulting debtor was alive or dead, the creditors were merely put, by force of a magistrate's order, in provisional possession, the fact being publicly advertized. On the magistrates being satisfied that none of the debtor's friends would come to his rescue, a fresh order was made, and the possession of the creditors was confirmed for the purpose of proceeding with the sale and the satisfaction of debts. This was effected by the medium of a liquidator (magister), chosen by the creditor, who, after a fresh delay of thirty or fifteen days, as the case might be, was empowered by a final order to sell the estate on condition that the buyer should distribute the proceeds, as far as they would go, at a fixed rate per cent. among the several creditors, as arranged by themselves. The purchaser acquired from the magistrate a possessory title, and had the requisite possessory remedies.

Thus, the purchaser was the debtor's "universal successor," and, according as the debtor was alive or dead, the purchaser could avail himself, for the purpose of following up the property, of the remedies of the "Rutilian" or the "Servian" action. He had, of course, cast upon him the duty of paying the creditors according to the tariff which

entered into the conditions of sale. In the meantime the debtor was liberated from all further liability, except as respects subsequent earnings or acquisitions, out of which he was held liable to make fresh payments up to the point of leaving himself a moderate competency (in quantum facere potest), which was was to be judicially L. 4, 6, D.

estimated without a fresh sale. Where the (xlii. 3). proceeds of the debtor's estate were insufficient to cover the whole of the debts, the only advantage he obtained from the voluntary surrender was the protection of his person. Where a public sale could be dispensed L. 1, C. (vii. with by private arrangement, the debtor was 71). saved from "infamy."

This procedure was at once tardy, complicated, and severe. Two alternative methods of settlement with an insolvent's creditors existed in Justinian's time, though without involving an entire disuse, or at least express abolition, of the various older remedies of comJ. (iii. 12). pulsory sale and universal assignment. The new methods point not only to a more liberal appreciation of the purely trade relations of debtor and creditor, but also to the modification-conspicuous in so many other fields of the root conceptions of the older Roman law, such as that of universal succession.

One of these methods was what may be called "sequestration" to an assignee in favour of creditors (curatela bonorum distrahendorum gratiâ). It had originally been introduced for the benefit of debtors of the rank of senators and persons enjoying certain recognized social distinctions (clari). By Justinian's time it was extended L. 5, D. (xxvii. to debtors of all classes. An assignee (curator) 10). was chosen by concert between the insolvent and his debtors. He had the charge of all the insolvent's property, in trust to sell so much of it as was required to pay the whole of the debts on the proportion agreed upon, and to hand the residue over to the debtor. No universal succession took place, and while the debtor acquired no protection in respect of debts or of assets not specially included in the arrangement, the fact of the sale brought