for the purpose of grounding the jurisdiction of the court of Exchequer that the plaintiff was the king's debtor and, by reason of the defendant's default, was unable to pay his debt to the king. A praediator is defined by Gaius, qui mercatur a populo, above, 2 § 61. Cicero speaks of jus praediatorium, Pro Balbo, 20. A lex praediatoria is mentioned by Suetonius: Ad eas rei familiaris angustias decidit, ut cum obligatam aerariis fidem liberare non posset, in vacuum lege praediatoria venalis pependerit sub edicto praefectorum, Claudius 9. He was so impoverished, that he could not discharge his obligation to the treasury, and his goods were declared vacant by the lex praediatoria, and advertised for sale by the edict of the prefects.' DE FICTIONIBUS. § 30. Sed istae omnes legis actiones paulatim in odium venerunt. namque ex nimia subtilitate veterum qui tunc iura condiderunt eo res perducta est, ut vel qui minimum errasset litem perderet. itaque per legem Aebutiam et duas Iulias sublatae sunt istae legis actiones effectumque est, ut per concepta verba, id est per formulas litigaremus. § 31. Tantum ex duabus causis permissum est lege agere: damni infecti, et si centumvirale iudicium fit. proinde vel hodie cum ad centumviros itur, ante lege agitur sacramento aput Praetorem urbanum vel peregrinum. propter damni vero infecti nemo vult lege agere, sed potius stipulatione quae in edicto proposita est obligat adversarium per magistratum, quod et commodius ius et plenius est. per pignoris [desunt 24 lin.] apparet. § 32. Item in ea forma quae publicano proponitur talis fictio est, ut quanta pecunia olim, si pignus §30. But all these branches of statute process fell gradually into great discredit because the excessive literalism of the ancient jurists made the slightest error fatal; and they were abolished by the lex Aebutia and the two leges Juliae, which introduced in their stead the system of formulas or variable written instructions of the praetor to the judex. § 31. Two cases only were reserved for statute process, apprehended damage and centumviral causes. The latter are still preceded by statute process of sacramentum before the praetor urbanus or peregrinus, as may happen. For protection against apprehended damage a plaintiff no longer resorts to statute process, but with the aid of the [municipal] magistrate [who in this matter for the sake of celerity exercises as delegate the jurisdiction of the praetor, Dig. 39, 2, 1] stipulates to be indemnified by the defendant in the manner provided by the edict, whereby he is put to less trouble and obtains ampler redress. $32. The formula provided for the farmer of the revenue directs the debtor to be condemned in the captum esset, id pignus is a quo captum erat, luere deberet, tantam pecuniam condemnetur. § 33. Nulla autem formula ad condictionis fictionem exprimitur. sive enim pecuniam sive rem aliquam certam debitam nobis petamus, eam ipsam dari nobis oportere intendimus; nec ullam adiungimus condictionis fictionem. itaque simul intellegimus eas formulas quibus pecuniam aut rem aliquam nobis DARE OPORTERE intendimus, sua vi ac potestate valere. eiusdem naturae sunt actiones commodati, fiduciae, negotiorum gestorum et aliae innumerabiles. § 34. Habemus adhuc alterius etiam generis fictiones in quibusdam formulis: velut cum is qui ex edicto bonorum possessionem petiit ficto se herede agit. cum enim praetorio iure et non legitimo succedat in locum defuncti, non habet directas actiones, et neque id quod defuncti fuit potest intendere suum esse, neque id quod defuncto debebatur potest intendere dare sibi oportere ; itaque ficto se herede intendit veluti hoc modo: IUDEX ESTO. SI AULUS AGERIUS, id est ipse actor, LUCIO TITIO HERES ESSET, TUM SI PARET FUNDUM DE QUO AGITUR EX IURE QUIRITIUM EIUS ESSE OPORTERE; vel si in personam agatur, praeposita similiter fictione illa ita subicitur: TUM SI PARET NUMERIUM NEGIDIUM AULO AGERIO SESTERTIUM X MILIA DARE OPORTERE. § 35. Similiter et bonorum emptor ficto se herede agit. sed interdum et alio modo agere solet. nam ex persona eius cuius bona emerit sumpta intentione convertit condemnationem in suam personam, id est ut quod illius esset vel illi dare oporteret, eo nomine adversarius huic condemnetur: quae species ac sum for which formerly, after seizure of his goods, he would have had to ransom the distress. § 33. No formula is moulded on a hypothetical condictio; for when we sue for a certain thing or sum of money, our intentio names the very thing or sum for which we sue, without any reference to an imagined condictio: so that the modern condictio is not based on the ancient statute process. Similarly independent of the elder system are the actions of Loan for use, Trust, Unauthorized Agency, and innumerable others. § 34. The other kind of fiction is employed when the bonorum possessor or praetorian successor is feigned to be civil heir. Being only the praetorian, not the legal, successor, he has no direct action, and can neither claim to be proprietor of the things belonging to the deceased, nor to be obligee of the debts due to him. Accordingly, the intentio supposes him to be civil heir, and runs as follows: Let C D be judex. Supposing Aulus Agerius (plaintiff) were the civil heir of Lucius Titius, if in that supposition it be proved that the land in question ought to be his by the law of the Quirites; or, if the action is personal, 'if in that supposition it be proved that Numerius Negidius (defendant) ought to pay to Aulus Agerius ten thousand sesterces; then let the defendant be condemned,' &c. § 35. So the purchaser of a bankrupt's estate may either suppose himself to be civil heir, or may use a different form he may name the insolvent in the intentio and himself in the condemnatio, requiring the defendant to restore or pay to himself any property that belonged or any debt that was due tionis appellatur Rutiliana, quia a Praetore Publio Rutilio, qui et bonorum venditionem introduxisse dicitur, comparata est. superior autem species actionis qua ficto se herede bonorum emptor agit Serviana vocatur. § 36. Eiusdem generis est quae Publiciana vocatur. daturautem haec actio ei qui ex iusta causa traditam sibi rem nondum usucepit eamque amissa possessione petit. nam quia non potest eam ex iure Quiritium suam esse intendere, fingitur rem usucepisse, et ita, quasi ex iure Quiritium dominus factus esset, intendit hoc modo: IUDEX ESTO. SI QUEM HOMINEM AULUS AGERIUS EMIT, ET IS EI TRADITUS EST, ANNO POSSEDISSET, TUM SI EUM HOMINEM DE QUO AGITUR EIUS EX IURE QUIRITIUM ESSE OPORTERET et reliqua. § 37. Item civitas Romana peregrino fingitur, si eo nomine agat aut cum eo agatur, quo nomine nostris legibus actio constituta est, si modo iustum sit eam actionem etiam ad peregrinum extendi, velut si furtum faciat peregrinus et cum eo agatur, formula ita concipitur: IUDEX ESTO. SI PARET OPE CONSILIOVE DIONIS HERMAEI LUCIO TITIO FURTUM FACTUM ESSE PATERAE AUREAE, QUAM OB REM EUM, SI CIVIS ROMANUS ESSET, PRO FURE DAMNUM DECIDERE OPORTERET et reliqua. item si peregrinus furti agat, civitas ei Romana fingitur. similiter si ex lege Aquilia peregrinus damni iniuriae agat aut cum eo agatur, ficta civitate Romana iudicium datur. § 38. Praeterea aliquando fingimus adversarium nostrum capite diminutum non esse. nam si ex contractu nobis obligatus obligatave sit et capite deminutus deminutave to the insolvent. This form of action is called Rutilian from the praetor Rutilius who invented execution in bankruptcy against the estate the action wherein the plaintiff feigns, himself civil heir is called Serviana. § 36. Of the same nature is the Publician action, whereby a man claims a thing which had been delivered to him for a just consideration and of which he lost possession before he had acquired property by usucapion. Being unable to call it his property by the law of the Quirites, he is supposed to have acquired it by usucapion and his intentio runs as follows: 'Let C D be judex. Supposing that the slave who was sold and delivered to Aulus Agerius had continued during a year in his possession, if in that case the slave ought to have belonged to Aulus Agerius by the law of the Quirites, then condemn the defendant,' &c. § 37. So an alien is feigned to be a Roman, if he sue or be sued in an action which may justly be extended to aliens. For instance, if an alien is sued for theft, the formula runs as follows: Let C D be judex. If it be proved that Dio Hermaeus aided and abetted in the theft of a golden cup belonging to Lucius Titius, for which, if he had been a Roman citizen he would have had to make composition for theft, then condemn Dio Hermaeus,' &c. So if an alien sue for theft or sue or be sued under the Aquilian law for damage to property, he is feigned to be a Roman citizen. $38. Again, we may feign that the defendant has not been degraded in status for if we make a contract with a person who afterwards is degraded in status, as an (indepen fuerit, velut mulier per coemptionem, masculus per adrogationem, desinit iure civili debere nobis, nec directo intendere possumus dare eum eamve oportere; sed ne in potestate eius sit ius nostrum corrumpere, introducta est contra eum eamve actio utilis, rescissa capitis deminutione, id est in qua fingitur capite deminutus deminutave non esse. dent) female by subjection to Hand, an independent male by adrogation, he or she ceases by the civil law to be our debtor, and we cannot directly declare in the intentio that he or she is bound to convey. To protect our rights, however, from extinction by the act of another, the praetor grants a fictitious action, rescinding or ignoring the defendant's act and supposing the continuance of his or her original status. § 30. The lex Aebutia is supposed to have been passed about 170 B.C. The leges Juliae are supposed to be a lex judiciaria passed by Julius Caesar about 45 B.C., and another lex judiciaria passed by Augustus about 25 B.C. After the legis actiones were abolished as modes of proceeding in civil suits their forms still survived in the ceremonies of Adoption, the manumission of a slave, the emancipation of a son, and conveyance by in jure cessio. It may be questioned whether Gaius has exactly laid his finger on the deficiency of the system of Statute-process when he alleges its excessive formalism (nimia subtilitas) as the cause of its failure. Its shortcoming was not so much its formalism (the following system was equally formalistic) as (1) its want of safeguards against errors of form and (2) its want of power of expansion. (1) Though the Formula was perhaps as literally and rigorously interpreted as the form of Statute-process, yet the period at which the Formula was fixed in the Formulary system diminished the danger of the defeat of a rightful claim by an error in the selection of the appropriate form. The formula of an action was not determined till the close of a debate before the magistrate (in jure) in which both parties were assisted by jurists and had disclosed, in part at least, their pretensions, and brought the true issue to light. Statute-process was formal at an earlier stage and from the inception of the proceedings: and the kinds of statute-process were specially characterized and denominated by their first stages even when these were extra-jural or outside the court, as in manus injectio and pignoris capio. In Statute-process an error of form at any of the stages preceding litis contestatio was fatal to the party by whom it was committed. In the Formulary system no litigant could commit a suicidal error-no form was fixed whereby his claim could be defeated-before the litis contestatio. (2) A plaintiff had no remedy unless he could show that his case had been contemplated by the legislator: but the legislator had been too much occupied with foreign war and domestic dissension to think of developing the private code. Jurisprudence had been busy in framing such actions as the system admitted; but jurisprudence had little voice and little scope. If the law was silent, if there was any hiatus or casus omissus, jurisprudence was not allowed to fill up the void. The praetor himself had his hands tied and was a mere piece of machinery. The institution of the Formulary process gave an organ to the voice of jurisprudence, and the power of issuing edicts and inventing new forms of action constituted the praetor a second legislator. The enlarged scope given to the conscience of jurisprudence by the new powers of the praetor produced an enlargement of the scheme of remedies such as followed in England from the recognition of the royal conscience as a source of civil legislation and the erection, beside and in addition to the common law courts, of a court of Chancery presided over by the guardian of the conscience of the king. Ihering, § 47. Conceptae feriae denoted holidays specially appointed by the magistrate, as opposed to feriae stativae: so concepta verba seems to denote the formulas accommodated by the magistrate to the various grounds of litigation, as opposed to the certa verba, § 29, or more immutable formulas prescribed to the litigants in Statuteprocess by the legislator. The term, then, expresses elasticity. We may observe by anticipation that the formulary system, after an existence of nearly five hundred years, was brought by the ingenuity of lawyers into the same discredit and experienced the same fate as the system it had displaced. First Diocletian, A.D. 294, made all judicia extraordinaria, that is, required the magistrates to hear and determine all causes themselves, instead of commissioning others to hear and determine them. Placet nobis, Praesides de his causis in quibus, quod non ipsi possent cognoscere, antehac pedaneos judices dabant, notionis suae examen adhibere: ita tamen, ut, si vel propter occupationes publicas vel propter causarum multitudinem omnia hujusmodi negotia non potuerint cognoscere, judices dandi habeant potestatem, Cod. 3, 3. 'Governors of provinces shall themselves determine the causes which they used to refer to inferior judges, unless compelled by |