others called adjectiones, inserted for some reason peculiar to each particular case. These were

A. Præscriptiones, if inserted before the intentio. A præscriptio might be inserted

1. By the plaintiff, for the purpose of limiting his demand in case the usual words of the intentio were too large; or

2. By the defendant, for the purpose of raising some preliminary question which, if decided in his favour, would quash the formula, i.e. would prevent the deductio in judicium. Of these, the three most important were called

a. Præjudicia, if the ground taken by the defendant was that the determination of the action would prejudice him in some other cause which ought first to be determined (Gaius, IV. 133).

b. Præscriptio fori, or what we should call a plea to the jurisdiction. c. Præscriptio temporis, by which the defendant insisted that the plaintiff should have brought his action sooner. Hence the modern word prescription. The præscriptiones inserted by the defendant seem in later times to have come after the intentio and then to have been called exceptiones.

B. Exceptiones, Replicationes, &c., if inserted after the intentio: of these 1. The exceptio was inserted by the defendant, not to quash the formula by a preliminary objection, but to avoid the condemnatio by alleging some new fact to prevent the result which would otherwise have followed from a finding of the intentio in the plaintiff's favour (plea in confession and avoidance).b

2. The replicatio was inserted by the plaintiff, to destroy the effect of the defendant's exceptio, and bore the same relation to it as the latter bore to the intentio.

3. The duplicatio, triplicatio, &c., were inserted for similar purposes by the defendant and plaintiff respectively (rejoinder, surrejoinder).

After the pleadings came the

Litis contestatio.—Litis contestatio. Contestari litem was a phrase used to designate the calling of witnesses by each party to a suit; it was the last act in jure, when the Roman civil process took place partly before a magistratus in jure and partly before a judex in judicio. Lis enim tunc contestata videtur cum judex per narrationem negotii causam audire

a The celebrated words nisi restituat inserted in the condemnatio, and by which the inconvenience of condemning the defendant to pay damages only was avoided, were probably first inserted as an adjectio. See 2 Ort. 445, 452.

b The formula being "Si paret condemnato, si non paret absolvito,” a mere denial by the defendant of the plaintiff's intentio was not necessary: a simple traverse (litis contestatio negativa), is not denoted by the term exceptio. 2 Puchta Inst. 157, 165; Mackeldey's Lehrb. § 200 a.

с

Equivalent to the expression post litem contestatam are the following-post judicium ordinatum vel acceptum, post litem incohatam. 2 Puchta Inst. 182.

cæperit. Cod III. tit. 9, de lit. con. 1. 1. This shows the meaning of the expression after the disappearance of the old formulary system. The litis contestatio, which may not perhaps be very improperly rendered joinder of issue (et inde producit sectam) was an important stage in the Roman Civil process, and had a material influence on the rights of the parties. Its most important effects were the following-a

1. A new obligatio, quasi ex contractu, was thereby imposed on all the parties to the suit to continue it.

2. The suit became pendens.

3. Time which had begun to run ceased to do so.

4. The suit was capable of being continued by or against the representatives of either party in case of his death, although it might not have been maintainable in the first instance by or against such representatives.

5. The sentence related back to this time, so that the successful party was entitled to all such benefits as he would have derived if judgment had then been given for him: post litem contestatam omnes incipiunt malæ fidei possessores esse, is a maxim illustrative of this principle.

6. The choice exercised by the plaintiff, with respect to the ground on which he based his claims, was irrevocable.

7. The thing in dispute became res litigiosa, and was incapable of being dealt with in any way prejudicial to either party.

8. The original ground of action became merged in the obligatio arising from the litis contestatio.

Evidence.-Issue being joined the next step was to ascertain the facts. This, however, was dispensed with if they were admitted, or if the plaintiff put the defendant to his oath, or if the defendant refused to continue to defend. With respect to the first it was a maxim that confessus pro judicato est, Dig. XLII. tit. 2. With respect to the second; the plaintiff had a right to call upon the defendant to swear whether the plaintiff was or not entitled to recover; if the defendant swore either way, his oath was conclusive as against the plaintiff; but if the defendant would not swear, judgment was given against him unless he put the plaintiff on his oath, in which case the oath which the plaintiff might make was also conclusive; but if the plaintiff refused the oath the defendant was absolved. Dig. XII. tit. 2. An oath, when called for by the plaintiff is jus jurandum delatum, when demanded by the defendant relatum (deferre, referre); and the suit, when either party put the other to his oath, is in jurandum demissa. The law is thus summed up by Ulpian (Dig. XII. tit. 2, 1. 34, § 9.)-" Quum res in jus jurandum demissa sit-judex jurantem absolvit, referentem audiet, et si actor juret con

* See 1 Vang. § 160; Mackel. § 200; Puchta Pand. § 96; 1 Mühl. Pand. § 144; 1 Warnk. Com. Jur. priv. 320.

demnet reum: nolentem jurare reum, si solvat absolvit, non solventem condemnat, ex relatione non jurante actore absolvit reum."

The Decree.-Judgment was pronounced by the judex; and in form he closely followed the direction to him contained in the formula. In an actio præjudicialis, in which the judex had only to make a report but to give no judgment, and the formula of which contained no condemnatio, the judex merely returned his opinion upon the evidence laid before him, e.g. ingenuum videri; servum non videri. In other cases the judex had either to condemn or absolve the defendant, or, in actions for partition, to adjudicate to each party the portion he was to have. As a rule, the defendant only could be condemned or absolved, but there were some actions (judicia duplicia or actiones mixta), in which the plaintiff could be condemned at the instance of the defendant. A judgment adverse to the defendant was always to the effect that he should pay a certain specified sum of money (Gaius, IV. 48, 52). With the judgment, the duties of the judex and all proceedings in judicio ceased; to execute his sentence recourse was again had to the prætor. Execution. The modes of executing a judgment were, during the formulary system, as follows

If the sentence of the judex was disputed, an actio judicati was instituted before execution could issue. This actio was decided by the magistratus.

The process by manus injectio did not reduce the defendant to a state of slavery as under the old system of the leges actionis, but he was detained by and compellable to work for the benefit of the plaintiff (duci jubere).

In case of a missio in possessionem, the entirety of the property (universitas) of the defendant was, after due notice, put up for sale under the inspection of a magister, and became vested in the highest bidder (emptio bonorum); the defendant suffered a diminutio capitis, and was completely discharged from all liabilities under which he then was.

In case of a bonorum cessio, the universitas of the defendant (except his rights of status) was ceded by him voluntarily to his creditors, and was sold by them, and the proceeds were applied for their use; the defendant suffered no cap. diminutio, but remained answerable for all unsatisfied debts.

In case of a distractio bonorum, all the property (but not as an universitas) of the debtor was sold by a curator who saw the proceeds properly applied; the defendant suffered no cap. dim. and remained answerable for all unsatisfied claims.

In case of a pignoris capio, so much only of the defendant's property as was required for the purpose of satisfying the claims of the plaintiff was seized. The seizure was made by an executor of the magistratus, who either caused the same to be sold for the benefit of the plaintiff, or addicted them to the plaintiff, who thereby became the owner. The plaintiff did not, as in the time of the legis actiones, himself make the seizure extra jure.

3. EXTRAORDINARIA JUDICIA.

In the third and last period of the Roman law of civil process, established in the time of Justinian, the offices of judex and magistratus were united; there was consequently no formula, but the judicial officer took extraordinary cognisance of the subject of litigation (extraordinaria cognitio, extra ordinem cognoscere), and himself settled the matter from first to last. There were four cases in which the magistratus, before the system became general, proceeded in this way.

1. Where no reference to a judex was by the nature of the case required; as in cases of a cessio in jure, or where the facts were all admitted, &c. 2. Where such power was specially conferred by law.

3. Where it was necessary to do justice between parties who could obtain it in no other way.

4. Where force was required to be exercised for carrying out decrees, &c.

4. CLASSES OF ACTIONS.

In rem, in personam.-Quot genera actionum sint verius videtur duo esse, in rem et in personam in personam actio est qua agimus quotiens cum aliquo qui nobis vel ex contractu vel ex delicto obligatus est, id est cum intendimus dare, facere, præstare, oportere. In rem actio est cum aut corporalem rem intendimus nostram esse, aut jus aliquod nobis competere, velut utendi, &c. Gaius, IV. §§ 1, 2.

Omnium actionum

...

...

summa divisio in duo genera deducitur; aut enim in rem sunt aut in personam. Namque agit unusquisque aut cum eo, qui ei obligatus est vel ex contractu, vel ex maleficio et aliis quibusdam modis, aut cum eo agit qui nullo jure ei obligatus est, movet tamen alicui de aliqua re controversiam, quo casu prodita actiones in rem sunt: veluti si rem corporalem possideat quis, quam Titius suam esse affirmet, et possessor dominum se esse dicat; nam si Titius suam esse intendat, in rem actio est. Inst. IV. tit. 6, § 1.

Actionum genera sunt duo: in rem quæ dicitur vindicatio, et in personam, quæ condictio appellatur. In rem actio est per quam rem nostram, quæ ab alio possidetur, petimus et semper adversus eum est qui rem possidet. In personam actio est qua cum eo agimus qui obligatus est nobis ad faciendum aliquid, vel dandum et semper adversus eundem locum habet. Ulpian Dig. XLIV. tit. 7 de O. et A. L. 25 pr.

In order to understand this division of actions it is necessary to bear in

mind that the expression in rem was used by the Romans, not in its literal, but in a technical, sense as equivalent to absolute, general, undetermined and opposed to specialiter; and that the division of actions into those in rem and in personam was not founded on any corresponding division of rights, but that the division by the moderns (for the ancients had it not) of jura in rem and jura in personam was founded upon the above-mentioned Roman division of actions. However, the division of actions into those in rem and those in personam will be best understood if reference is made to the nature of the rights which they were respectively instituted to protect, and to the Roman mode of bringing actions. Now, all civil rights are divisible into two great classes, viz., those with which anybody, and those with which only some ascertained person or persons can interfere. The duty correlative to a right of the first class is imposed upon all persons indiscriminately, and not by virtue of any particular transaction in which they have taken part ; whilst a duty correlative to a right of the second class is imposed upon some person or persons in particular, by virtue of some transaction in which such person or persons have themselves been concerned.

In case of an injury to a right of the first kind, the intentio of the plaintiff's formula was general, and the name of the person against whom the action was brought was not inserted, the plaintiff relying entirely on his right available against every other person-si paret hereditatem ex jure quiritium Auli Agerii esse, &c., and actions brought for an injury to such right, and framed generally in this way, were technically called actions in rem.

In case of an injury to a right of the second kind, the intentio of the plaintiff's formula was special, and the name of the person against whom the action was brought was inserted, the plaintiff relying on some particular duty imposed on the defendant solely by virtue of some special circumstance-si paret NUMERIUM NEGIDIUM Aulo Agerio sestertium decem milia dare oportere, &c., and actions brought for an injury to such a right, and framed specially in this way, were technically called actions in personam.

The terms in rem and in personam only had reference to the mode in which the intentio of the formula was framed; the condemnatio was never general, but was in both kinds of action directed against the particular defendant. Moreover, there were some actions in which, as in the interdicts, the intentio of the formula was general, although they were themselves more analogous to actions in personam, than to those in rem; such were called in rem scriptæ, e. g. the actions ad exhibendum, quod metus causa.

"See Braun Erör, § 61; Froben, § 62; 2 Thibaut Vers. 23, &c. ; 2 Puchta Cursus, § 165.

As was always the case when the formula was in factum concepta. 2 Ortolan Inst. 458.