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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 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 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 restilutio) 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 instance '. 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; magistrates and iudex, so far as the administration of justice is concerned, are interchangeable terms. As is observed by Mr. Poste 2, the libellary procedure in use in the time of Justinian was essentially the same as cognitio extraordinaria8.

1 A sure index of the increasing activity of the extraordinaria cognitio is the frequent use of the expression ' iudex pedaneus' (xa/uuSuraoT^s, 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.

* Gains p. 657.

* 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; Prescription 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.)

acceptilatio, iii. 29. 1.

accessio, title to young of domestic
animals, ii. 1. 19; to island rising in
river, ib. 22: by river changing its
course, ib. 23: of purple woven into
a garment, ib. 26 : by inaedificatio, ib.
29: of plants to soil, ib. 31, and of
crops, ib. 32: of writing to parch-
ment, ib. 33: but by an anomaly
'tabula picturae cedit,' ib. 34.

acquisition through slaves, i. 8. 1:
ii. 9. 3: iii. 17. 1: through usufruc-
tuary slaves, ii. 9. 4: ii. 14. pr.:
through alienus servus bona fide
possessed or free man bona fide ser-
viens, ii. 9. 4: through children in
power; the old law modified by Jus-
tinian, ii. 9. 1: cf. iii. 17.1: through
cxtraneae personae, ii. 9. 5: acqui-
sition of contractual rights through
slaves and children in power, iii. 28.
pr.: through free men and alieni
servi bona fide possessed, ib. 1:
through usufructuary slave, ib. 2:
through slave jointly owned, ib. 3.

acta, i. 11. 12: i, 12. 8: ii. 7. 2: iv.
11. 3.

actio, defined, iv. 6. pr.: divided into in
rem and in personam, ib. 1: actions
in rem are for recovery of property,
ib., or of iura in re aliena, ib. 2: ac-
tions relating to the latter either affir-
mative or negative, ib.: real actions
introduced by the praetor, ib. 3: ex-
emplified by actio Publiciana, ib. 4:
the converse action, ib. 5: actio Ser-
viana and quasi-Serviana, ib. 7: prae-
torian actions in personam exemplified
by actiones recepticia, de pecunia con-
stituta, de peculio, etc., ib. 8: praeto-
rian penal actions, ib. 12: praeiudi-
cial actions, ib. 13: ownership can-
not be claimed by actio in personam,
ib. 14: actions divided into rei per-
secutoriae, poenae persecutoriae, and
mixtae, ib. 16: actions rei persecuto-
riae exemplified, ib. 17: so with those
poenae persecutoriae, ib. 18, and mix-
tae, ib. 19: actions called mixtae be-
cause partly in rem, partly in perso-
nam, e. g. actio familiae erciscundae,

ib. 20: actiones in simplum concep-
tae, il'. 22: in duplum, ib. 23: in
triplum, ib. 24: in quadruplum, ib.
25: actiones bonae fidei and stricti
iuris; the former enumerated, ib. 28,
and characterised, ib. 30: actiones ar-
bitrarme, ib. 31: actions in which the
whole debt is sometimes not recover-
ed, e. g. de peculio, ib. 36: de dote,
ib. 37: actions by child against pa-
rent, freedman against patron, part-
ner against partner, etc., ib. 38: con-
currence of actions de eadem re, iv.
9.1: actions perpetual and temporal,
iv. 12. pr.: penal actions, how far
they can be brought against the of-
fender's heir, ib. 1 : may be brought
by heir of injured person, except actio
iniuriarum, ib. : cases in which actions
ex contractu cannot be brought a-
gainst the heir, ib.: defendant entitled
to absolutio if he satisfies the plaintiff
ante rem iudicatam, ib. 2.
actio ad exhibendum, iv. 6. 31.

bonorum vi raptonim, iv. 3: who

can bring it, ib. 2.

calumniae, iv. 16. 1.

communi dividundo, iii. 27. 3: iv.

6. 20: iv. 17. 5.

de eo quod certo loco promissum

est, iv. 6. 31: ib. 33.

de eo quod metus causa, i v. 6. 25:

ib. 27: ib. 31.

deiecti aut effusi, iv. 5. 1.

de peculio, iv. 6. 8: ib. 10.

de peculio et in rem verso, iv. 7.

4: **.5. . . . , о de pecunia constituta, iv. 6. 8

and 9.

exercitoria, i v. 7. 2.

ex stipulatu, iii. 15. pr.

familiae erciscundae, iii. 27. 4:

iv. 6. 20: iv. 17. 4. finium regundorum, iv. 6. 20: iv.

17.6. furti, ii. 1. 34: iv. 1: iv. 12. pr.:

who can bring it, iv. 1. 13-17: is

purely penal, ib. 19.

in factum, iv. 3. 16: iv. 5. 3.

institoria, iv. 7. 2.

noxalis, iv. 8. pr.: caput sequitnr,

ib. 5: in cases of paupenes, iv. 9. pr.:

form of condemnation in, iv. 17. 1.

actio petitoria, iv. 15. 4.

poenalis, in heredem non transit,

iv. 3. 9: iv. 12.'1.

positi aut su'spensi, iv. 5. 1.

praescriptis verbis, iii. 24.1 and 2.

Publiciana, iv. 6. 4: ib. 31.

qua quaeritnr an actor iuraverit,

iv. 6. 8: ib. 11.

quasi Serviana, iv. 6. 7: ib. 31.

. quod iussu, iv. 7. 1 : ib. 5.

recepticia, iv. 6. 8 and 9.

rei uxoriae, formerly bonae fidei:

merged by Justinian in actio ex sti-
pulatu (de dote exigenda), to which he
gives a bonae fidei character, iv. 6. 29.

servi corrupti, iv. 1.8: iv. 6. 23.

Serviana, iv. 6. 7: ib. 31.

suspecti tutoris, i. 26. 3: ib. 8.

tributoria, iv. 7. 3: ib. 5.

utilis, ii. 1. 34: ii. 23. 4: legis

Aquiliae, iv. 3. :6.

actor tutoris, i. 23. 6.

addictio bonorum libertatis causa, in-
troduced by M. Aurelius, iii. 11. pr.
and 1: advantages of, ib. 2: allowed
where slaves are manumitted by codi-
cils only, ib. 3: limitations on its
application, ib. 4: effect upon, of in
integrum restitutio of non-accepting
heir, ib. 5: extension of it by inter-
pretation, ib. 6: Justinian's consti-
tution on the subject, ib. 7.

ademptio of legacies, ii. 21. pr.

adgnatio. iuris nomen, i. 15. 3, cf. iii. 1.
11 : effect of capitis deminutio on, 1.
15. 3= degrees of, how reckoned, iii.
6.8.

aditio of inheritance, ii. 19. 5: how
made, ib. 7.

adiudicatio, iv. 17. 4-7.

adoptio, its two forms, i. ii. 1 : Jus-
tinian's changes in the law of, ib. 2,
and their effect on the law of intestate
succession, iii. 1.14: imitates nature,
i. 11.4: its extent and limits,;?'. 4-7:
effects of, ib. 8: who cannot adopt,
ib. 9 and 10: adoption of slave, ib.
12: adoptio plena extinguishes patria
potestas, i. 12. 8: confers agnatic
rights, iii. 2. 2.
adopt!vi liberi, are in potestas, i. 11.
pr.: contrasted with naturales liberi
iti respect of intestate succession, iii.
1. 12.
adquisitio per adrogationem, intro-
duced by custom, iii. 10. pr.: see
adrogatio.
adquisitio rerum singularum iure na-
tural!: occupatio, ii. 1. 12: accessio,
ib. 19: alluvio, ib. 20: specificatio,
ib. 25 : confusio, ib. 27: commixtio,
ib. 28: traditio, ib. 40.

adquisitio rerum singularum iure ci-
vili: usucapio, ii. 6. pr.: donatio, ii.
7. pr.: per ius adcrescendi, ii. 7. 4.
adquisitio per universitatem, the four

kinds of, ii. 9. 6.
adrogatio, i. 11. 1: of impubes, ib. 3:
i. 22. 1: effect of, upon children of
adrogatus, i. 11. 11: rights of adro-
gatus on intestacy of natural father,
iii. 1. 10: effect of, on property of
adrogatus, iii. 10. 1: change in the
law by Justinian, ib. 2: effect of, on
debts owed by adrogatus, ib. 3.
adsignatiolibertorum, iii.8: introduced
by a senatusconsult, ib. pr. and 3:
who may be assigned, and to whom,
ii/. 1: case in which 'adsignatio evan -
escit,' ib. 2: modes of such assign-
ment, ib. 3.
Aediles curules, their edicts, i. 2. 7:

iv. 9. 1.
aequitas, ii. i. 40: iii. 1. 9.
agency, in acquisition of ownership
and possession: see acquisition.

contractual: see mandatum, and

iv. 7.

in procedure: formerly permitted

only in four cases: introduction of
procurators as processual agents,
iv. 10. pr.: mode of appointment,
ib. 1.
agnatos, who are, i. 15. 1: iii. 2. 1 and
2: agnatorum curatio, i. 23.3: females
as agnates, iii. 2. 3: their rights a-
bridged by the media iurisprudentia,
but the law of the XII Tables re-
stored by Justinian, ib., who also
gives agnatic rights to uterine bro-
thers and sisters and their children,
ib. 4: all agnates in the same degree
succeed equally, ib. 5: no limits to
the distance at which they may claim
the relationship, iii. 5. 5.
alienation, by non-owners, e. g. of
pledge by pledgee, ii. 8. 1: in some
cases forbidden even to owners, e. g.
with dotale praedium, ib. pr.: by
pupil without guardian's auctoritas,
ib. 2: in fraud of creditors, iv. 6. 6.
alluvio, defined, ii. 1. 20: doubtful case

of, ib. 21.
animals ferae naturae, ii. 1. 12: bees,
ib. 14: pigeons, ib. 15: domestic
fowls and geese, ib. 16.
animus domini, in connection with

renunciation of ownership, ii. 1. 48.
animus revertendi, a test of domes-
ticity in animals, ii. 1. 15.
arra, iii. 23. pr.
Atilioinus, ii. 14. pr.
auctoritas tutoris, where and where
not necessary, i. 21. pr.: ii. 8. 2:

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