equitable pleas or answers. So also are the quasi-contracts and quasi

delicts.

Pacta adjecta and Pacta legitima (see I. 4, above) still remain to be mentioned. The former are agreements attached to bonae fidei contracts, and regarded by the law of later times as forming part of the contract, so that on their breach an action may be brought. Examples are an agreement that on the purchaser selling again what he has bought, the vendor shall have a right of pre-emption, &c. &c. (see Mackeldey, § 419). Pacta legitima are of various kinds, but the chief are the pactum donationis and that de dote constituenda. These again are too minute in their nature to be discussed in an elementary treatise, and we refer the reader desirous of information to Mackeldey, §§ 420—428.

(K). On the Decemviri, Centumviri, Lex Pinaria, Lex Aebutia, Leges Juliae.

A. The Decemviri stlibus judicandis.

From the time of the XII Tables decemviri seem always to have existed in the Roman state, a fact which is indicated by Livy (III. 55) in the words he quotes from a law of the consulship of Valerius and Horatius: "ut qui tribunis plebis aedilibus judicibus decemviris nocuisset, ejus caput Jovi sacrum esset, familia ad aedem Cereris Liberi Liberaeque venum iret." Livy tells us that the original Decemviri, by whom the XII Tables were drawn up, themselves exercised judicial functions "singuli decimo quoque die," (III. 33). When the consular government was re-established a court of decemviri was still kept in existence, and, according to Heffter, had the cognizance of almost all suits up to the date of the institution of the Praetor's office (B. C. 367). Until that event Heffter also holds that there was no giving of a judex, except in cases where the law specially provided for suits being conducted per judicis postulationem: grounding his opinion on Tab. 1. 1. 7 : "Ni pagunt, in comitio aut in foro ante meridiem causam conjicito, quom perorant ambo praesentes post meridiem praesenti stlitem addicito:" so that the decemviri had what in later times was styled cognitio extraordinaria in all sacramentary cases.

B. The Lex Pinaria.

This lex enacted about B.C. 350, effected a great change in the functions of the decemviri. A large number of actions had already been withdrawn from their cognizance, and transferred to that of the Praetor; and possibly because this magistrate was now overburdened with business, the Lex Pinaria empowered him to appoint a judex from the number of the decemviri, such judex not receiving a general but a special commission, that is, one confined to the particular case entrusted to him. There is indeed a passage from Pomponius in the Digest (D. 1. 2. 2. 29) which seems to refer the institution of decemviri to the same period as that of the quatuor viri viarum, &c., the words being, "deinde quum esset necessarius magistratus qui hastae praeesset, Decemviri litibus judicandis sunt constituti. Eodem tempore et quatuor viri etc." But as we know from Livy that the office existed previously, we must admit that the strict meaning of constituti should not be pressed, but that we ought rather to understand that some new function was conferred on the decemviri; and hasta will then be interpreted as the sacramentary actions for which the Lex Pinaria authorized the Praetor to call in the decemviri as judices. This explanation will, however, necessitate our placing the Lex Pinaria in the year 308 B.C. instead of

On the Decemviri, Centumviri, Lex Pinaria, &c. 357

350 B.C., because Pomponius says the quatuorviri were instituted at the same time as the triumviri capitales, and the date of their institution is B.C. 308; but, first, we are not bound to consider that Pomponius is accurate to a few years in his very sketchy account; and, second, even if he be, there is no very valid reason for the commonly-received opinion that B.C. 350 is the date of the Lex Pinaria.

C. The Lex Aebutia. Gaius says that by this law and the two Julian laws the legis actiones were abolished, save in two cases, viz. actions referring to damnum infectum and actions tried before the centumviri. Those who wish to know exactly how much was effected by the Lex Aebutia and the Leges Juliae respectively, should consult Heffter's Observations, pp. 18—41, a portion of his work too long for transcription here. The results he arrives at are these: the Lex Aebutia may be divided into two principal clauses; Ist that the centumviri should judge in all sacramentary cases of a private nature, save only that the cognizance of questions touching liberty or citizenship should be left to the decemviri stlitibus judicandis1, 2nd that all other causes which had previously been sued out per judicis arbitrive postulationem or per condictionem should thenceforth be matters of formula, the Praetor having the jurisdiction thereof and appointing a judex, who must give a decision within eighteen months from his appointment.

D. The Centumviri. This college consisted of 105 members, three from each of the thirty-five tribes 2, and Cicero gives a list, the concluding words of which imply that it is not an exhaustive one, of their functions: “jactare se in causis centumviralibus, in quibus usucapionum, tutelarum, gentilitatum, agnationum, alluvionum, circumluvionum, nexorum, mancipiorum, parietum, luminum, stillicidiorum, testamentorum, caeterarumque rerum innumerabilium jura versentur. (De Orat. 1. 38.)

E. The Leges Juliae. In the reign of Augustus important changes in the constitution of the centumviral courts took place. The decemviri stlitibus judicandis had still some slight original and independent jurisdiction left to them, but the Julian laws gave them a new function, that of presidents of the court of the centumviri, an office previously held by ex-quaestors. The number of the centumviri was at the same time or soon after increased to 180, and they were divided into two or four tribunals, (some think more,) which in some cases sat separately, although in others of more importance the whole body acted together as judges. Whether much alteration was made by the Julian laws in their cognizance is a disputed point: some jurists have held that they could no longer deal with actiones in rem, which thenceforth were all per formulam, others have denied this statement; but there is very little evidence either way.

F. The Form of Process in a Centumviral Cause. The plaintiff first made application to the Praetor Urbanus or Peregrinus, (having previously given notice to his adversary of his intention to do so,) for leave to proceed before the centumviri. If leave were granted, formalities similar to those described by Gaius in IV. 16 were gone through, sponsiones, however, forfeitable to the opposing party, taking the place of the old sacramenta, forfeitable to the state. The decemviri then convened the centumviri, or those divisions of them who had to decide on the question, according to the nature of the case. The rest of the process presented no peculiar features.

29.

1 See Cic. pro Caecina, 33: pro Domo,

2 See Festus, sub verb.

Heffter maintains that application could in some cases be made to the Praetor Peregrinus. See Obs. p. 39.

(L). On the Proceedings in a Roman Civil Action.

In the present note it is proposed to describe the various steps of a Roman action at law from its commencement to its termination.

We shall, however, first briefly notice the nature and extent of the jurisdiction of those higher officials by whom all points of pleading and technical preliminaries were decided.

It is, of course, unnecessary to speak here of the early history of Roman actions, or to examine the historical account of the changes by which jurisdiction in civil suits was supposed to have passed from the kings (if it ever was in their hands) to the consuls.

It is sufficient to take up this narrative at the time when the Praetors were the supreme Judges, invested with that twofold legal authority which is described by the technical terms jurisdictio and imperium. (See III. 181 n.) Two functions were comprised in the jurisdictio, one that of issuing decrees, the other that of assigning a judex (judicis datio).

When therefore the litigants had made up their minds to settle their disputes by law, they were accustomed to appear before the Praetor in a place specially assigned for trials. In old times this place was always the comitium at a later period the Comitium or Forum was reserved for Judicia Publica, whilst private suits were tried under cover in the Basilica. If the Praetor heard the cause in his superior seat of justice, he was said to preside pro tribunali, if in his ordinary seat, he was said to try de plano".

The applications for relief at his hands were of course much more unimportant and informal at the sittings de plano than at those pro tribunali, where all those cases were argued which required a special argument. Hence it became customary for the Praetor, whenever some very important business was brought before him pro tribunali, to obtain the assistance of a consilium, the members of which sat behind ready to instruct him when difficult points of law arose in the course of the hearing3. Often," says Pliny, "have I pleaded, often have I acted as judex, often have I sat in the consilium."

66

66

The Praetor's court was closed on certain days, for, as is well known, there were dies fasti, dies nefasti and dies intercisi. "On the former days,' says Varro, "the Praetor could deliver his opinions without offence, on the dies nefasti, or close days, the Praetor was forbidden to utter his solemn injunctions Do, Dico, Addico:" consequently on those days no suits could be heard. The business before the court was distributed methodically over the dies fasti; thus on one day postulationes only would be taken, on another cognitiones, on a third decrees, on a fourth manumissions, and so on, an arrangement perfectly familiar to the practising English lawyer, who takes care to provide himself with the cause lists of the courts he has to attend".

From this short notice of the superior courts and their characteristics we proceed to describe the actual method in which suits were conducted.

On the Proceedings in a Roman Civil Action.

359 Before resorting to law it was usual to endeavour to bring about an amicable settlement of the matters of difference by means of the intervention of friends. If their efforts were unavailing, the dispute was referred to Court, and the first step in the suit was the process termed In jus vocatio. In old times this In jus vocatio was of a very primitive character. The plaintiff on meeting the defendant bade him follow him into court; should the defendant refuse or delay to obey the mandate, the plaintiff called on the bystanders to bear witness to what he was doing, touching them on the ear1 as he did so, after which he could drag his opponent off to court in any way he pleased. In course of time this rough and ready form of summons was got rid of, and at length the method of direct application to the Praetor was adopted, by whom a fine was imposed in case his order for appearance were disobeyed. The defendant, if he obeyed the summons and made his appearance, was able to obtain an interim discharge, either by procuring some one to become surety for his further appearance, or by entering into what was called a transactio, that is a settlement of all matters in dispute. Should neither of these courses have been adopted, on the defendant announcing his intention to fight the case the next step in the business was the editio actionis. This moved from the plaintiff, and was in effect the actual commencement of the case itself. By it the defendant was formally challenged, and upon it he might, or rather was obliged, either to accept service, or to ask for a short delay in order to consider as to the propriety of accepting. The plaintiff, however, might if he pleased declare his aim and object to the defendant at the time when the vocatio in jus was issued3, or after its issue he might informally and out of court state his demand to his opponent, or tell him the form of action he intended to adopt 4. Whichever mode he did adopt, the result was that the presiding magistrate and the defendant learned from the plaintiff that he intended to "postulate 5," i. e. make a formal demand of a formula.

No particular phraseology or formal language was imposed upon the plaintiff in the publication of the editio.

As the selection of the particular form of action was entirely in the plaintiff's power, he was permitted to vary the form at any time before the final settlement of the pleadings, (that is between the actionis editio and the deductio in judicium) for “edita actio speciem futurae litis demonstrat” says the Code 6

Of course such dangers on the plaintiff's part were met on the defendant's side by applications for delay, and the costs consequent upon these delays were thrown on the plaintiff. Sometimes the form of action prayed for was inadmissible in itself, sometimes the mode in which it was presented to the court was objectionable: in either of these events the Praetor refused to allow it, and whether this refusal were immediately upon the actionis editio or at a later period, the Praetor was not bound to declare such refusal by a decretum, but could if he chose simply pay no attention to the application. Hence, during the régime of the legis actiones the importance of strict and precise compliance with the rules of pleading, for the consequence of ill-drawn or badly-worded pleading on the part of the

1 See Horace, Sat. 1. 9. 74, and Plautus, Curculio, v. 2. 23.

2 See D. 2. 15.

3 See Plautus, Pers. 4. 9. 8-10. 4 Technically called denunciatio D. 5. 2. 7, and D. 5. 3. 20. 11.

5 The term postulatio embraced all applications for formulae to the Praetor. It frequently happened that the delivery of

the formulae depended upon long arguments in which the skill and knowledge in pleading of the advocates were fully called into play. These arguments always took place in the superior court, in Jure and pro tribunali. Ante judicium (says Cicero) de constituendo ipso judicio solet esse contentioni."

6 C. 2. I. 3.

plaintiff was failure, or to use the technical phraseology, causa cadebat. During the formulary period there was not so much risk of this mishap, for the Praetor himself used then to mark the verbal mistakes and errors in the plaintiff's intentio, and neither was the issue of fact fixed, nor the case sent for trial to the judex, till the formula was properly drawn. Thus time and opportunity were given by the court for the correction of all technical omissions and mistakes before trial. Still the plaintiff, even at this period of procedure', did incur the danger we are speaking of, for the trial being at his risk and peril, if eventually it turned out that the formula adopted did not fit in with his cause of action, he failed in his suit.

It is clear then that up to this stage the chief, if not the only active part in the proceedings was played by the plaintiff, and that whilst it was open to the defendant to take advantage of all his opponent's mistakes, he himself was called upon to do nothing, so far as his defence was concerned, before the vadimonium was settled.

These preliminaries therefore being completed, the plaintiff's next step was vadari reum, that is, in a particular and set form of words to pray that the defendant might find sureties to give bail for his appearance in court on a fixed day, generally the day after that following the application. That this form taxed largely the skill and care of the jurisconsults of the day is evidenced by Cicero's words2: "Cæsar asserts that there is not one man out of the whole mass before him who can frame a vadimonium." The form itself is lost, we may, however, surmise something of its nature from a passage in the oration Pro Quinctio. It seems clear that in the vadimonium were fixed the day and place when and where the parties were to appear before the Praetor in order to have the formula drawn up", that in cases where the trial was to take place out of Rome the name of the magistrate in the provinces who was to give the formula was inserted, and that where a defendant who was living in the provinces claimed a right of trial before a Roman tribunal the name of the magistrate in Rome was stated by whom the formula was to be drawn up.

Various other technicalities attached to the vadimonia. Two or three only need be specified. In the first place, as we have seen, bail might be exacted upon entering into a vadimonium; but it might also be entered into without any bail or surety, and then it was termed purum; again the defendant might be called upon to swear to the faithful discharge of his promise, or recuperatores might be named with authority to condemn the defendant in costs to the full amount of his vadimonium in case of nonappearance. If the defendant answered to his bail he was said vadimonium sistere; if he forfeited his recognizances, vadimonium deserere; if the day of appearance were put off, vadimonium differre was the technical phrase 7. The consequences that ensued upon the vadimonium being entered into were as follows: where the two parties appeared in person upon the day fixed, the object of the vadimonium being thus secured, the vadimonium itself was at an end and the proceedings went on in the regular way, which will presently be described: if, however, one or the other of them failed

1 Thus Cicero, "Ita jus civile habemus constitutum ut causa cadat is qui non quemadmodum oportet egerit." De Inventione, II. 19. See also Quint. Inst. Or. II. 6. 69.

2 Ad Quint. Frat. 11. 15.

3 Unless the lines in the Curculio, 1. 3. 5,

have preserved it.

4 In the event of the venue not being

necessarily fixed by the circumstances of the case.

5 Cic. pro Quinct. 7, apud finem, and Gaius, IV. 184.

6 Gaius, IV. 185. The Praetor's edict made special provision for all these cases. 7 So Juvenal, Sat. III. 213, "differt vadimonia Praetor."