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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 himself".
· For one very important branch of the extraordinaria cognitio in integrum restitutio) 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; magistratus and iudex, so far as the administration of justice is concerned, are interchangeable terms. As is observed by Mr. Poste ?, the libellary procedure in use in the time of Justinian was essentially the same as cognitio extraordinaria 3.
* A sure index of the increasing activity of the extraordinaria cognitio is the frequent use of the expression .iudex pedaneus' (xapaidxaoths, 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.
? Gaius 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. I.
animals, ii. 1. 19; to island rising in
'tabula picturae cedit,' ib. 34.
ii. 9. 3: iii. 17. 1: through usufruc-
through slave jointly owned, ib. 3.
rem and in personam, ib. 1: actions
ib. 20 : actiones in simplum concep-
ante rem iudicatam, ib. 2.
bonorum vi raptorum, iv. 2: who
calumniae, iv, 16. I.
6. 20: iv. 17. 5.
de eo quod metus causa, iv. 6. 25:
de peculio, iv. 6. 8: ib. io.
de peculio et in rem verso, iv. 7.
familiae erciscundae, iii. 27. 4:
finium regundorum, iv. 6. 20: iv.
noxalis, iv. 8. pr,: caput sequitur,
actio petitoria, iv. 15. 4.
- poenalis, in heredem non transit,
praescriptis verbis, iii. 24. I and 2.
qua quaeritur an actor iuraverit,
quasi Serviana, iv. 6. 7: ib. 31.
– rei uxoriae, formerly bonae fidei:
suspecti tutoris, i. 26. 3: ib. 8.
Aquiliae, iv. 3. 16.
troduced by M. Aurelius, iii. 11. pr.
tution on the subject, ib. 7.
II: effect of capitis deminutio on, I.
adquisitio rerum singularum iure ci-
vili : usucapio, ii. 6. pr.: donatio, ii.
7. pr.; per ius adcrescendi, ii. 7. 4.
kinds of, ii. 9. 6.
i. 22. 1: effect of, upon children of
debts owed by adrogatus, ib. 3.
by a senatusconsult, ib. pr. and 3:
iv. 9. 1.
and possession : see acquisition.
2: agnatorum curatio, i. 23.3: females
the relationship, iii. 5. 5.
pledge by pledgee, ii. 8. 1: in some
ib. 2: in fraud of creditors, iv. 6. 6.
of, ib. 21.
ib. 14: pigeons, ib. 15: domestic
fowls and geese, ib. 16.
renunciation of ownership, ii. 1. 48.
ticity in animals, ii, 1. 15.
not necessary, i. 21. pr.; ii. S. 2:
aditio of inheritance, ii. 19. 5: how
made, ib. 7.
tinian's changes in the law of, ib. 2,
rights, iii. 2. 2.
pr.: contrasted with naturales liberi
duced by custom, iii. 10. pr.: see
turali : occupatio, ii. 1. 12: accessio,