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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
acquisition through slaves, i. 8. 1:
acta, i. 11. 12: i, 12. 8: ii. 7. 2: iv.
actio, defined, iv. 6. pr.: divided into in
ib. 20: actiones in simplum concep-
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
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-
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-
ademptio of legacies, ii. 21. pr.
adgnatio. iuris nomen, i. 15. 3, cf. iii. 1.
aditio of inheritance, ii. 19. 5: how
adiudicatio, iv. 17. 4-7.
adoptio, its two forms, i. ii. 1 : Jus-
adquisitio rerum singularum iure ci-
kinds of, ii. 9. 6.
iv. 9. 1.
contractual: see mandatum, and
in procedure: formerly permitted
only in four cases: introduction of
of, ib. 21.
renunciation of ownership, ii. 1. 48.