The defendant was restrained (a) by the action sometimes being in duplum (the Institutes add in triplum, but no instances are known) when there was a denial on the part of the defendant, as in cases of damni injuriæ and legacies left to holy places; (b) by the action being for more than the single value, as in the case of theft (1); (c) by infamy, which attends condemnation in an action tutela, mandati or depositi if direct, and pro socio (which is direct for both parties), and which attends not only condemnatio, but an agreement to commit the offence, in actions furti, vi bonorum raptorum, injuriarum, and de dolo. (2.)

The first step in an action was the vocatio in jus, the summons to the defendant to appear before the magistrate. Children, however, cannot summon ascendants, nor freedmen patrons or the children or ascendants of patrons, without having first received the permission of the prætor. If they act without this permission, they are liable to a fine of fifty solidi. (3.)

2. THE OFFICE OF THE JUDGE.-The Institutes first lay down the general duty of the judge, which is to judge according to the law, the constitutions, or customary usage. (Tit. 17. pr.) If the judge gave a sentence wrong on the face of it, or fixed the condemnation below what the prætor had fixed it, the sentence was void, and no appeal was necessary. If the judge was supposed to be wrong otherwise, notice of appeal had to be given within two days (or, if the defendant had appeared by a procurator, three days), enlarged by Justinian to ten days. The Emperor was the final judge of appeal, but Hadrian made the decisions of the Senate final, and Constantine those of the prætorian præfect.

Secondly, the Institutes point out what judgment ought to be given in certain actions:

(a) In a noxal action the judge ought to state the condemnation by ordering a sum to be paid, or the noxa abandoned. (2.)

(b) In a real action, if he determines against the claimant, he ought to absolve the possessor; if against the possessor, he ought to order the thing and its fruits to be given up, and, after the time of Hadrian, all the fruits consumed had to be accounted for, whether the possession was bona fide or mala fide, if the thing possessed was an inheritance. Before Hadrian as to inheritance, and before and after his time as to single objects, the rule was that a bona fide possessor had to account for fruits after the bringing of the action, the mala fide possessor for all. If the possessor showed that he could not give up the possession at once, he obtained a delay on giving security to give up within a time allowed him.

(c) In an action ad exhibendum the defendant must exhibit the thing and everything derived from it, as e.g. the fruits, since the bringing the action; nor will usucapion accomplished subsequently avail him. If he states that he cannot exhibit at once, he can obtain a delay on giving security, but if he neither exhibits nor gives security, he is to be condemned in an amount representing the interest of the plaintiff in having the thing exhibited at once.

(d, e,f) In the actions familiæ erciscundæ, communi dividundo, and

finium regundorum, the judge ought, if he gives one more than another, and one thus receives more than another, to make this favoured person pay a pecuniary equivalent. (4, 5, 6.) In the action finium regundorum, a person ought to be condemned who has destroyed boundary marks, or opposed, in defiance of the judge's order, the measurement of the land. (6.) In all these three actions anything adjudged becomes at once the property of the person to whom it is adjudged. (7.)

CRIMES. The subject of public prosecutions being altogether outside the general subject of the Institutes, which treat of private law (Tit. 18. pr.), may be omitted here. A sketch of Roman criminal law is given in the last section of the Introduction.