sequimur uelut ex his causis, ex quibus aduersus infitiantem in duplum agimus; quod accidit per actionem iudicati, depensi, damni iniuriae legis Aquiliae, aut legatorum nomine quae per damnationem certa relicta sunt. Inst. 4, 6, 19.

for property and for a penalty in those actions where the defendant who denies his liability is condemned to pay double, as in the actions to recover a judgment debt, to recover money paid by a sponsor for his principal, to recover damages for injury to property under the lex Aquilia, and to recover legacies of a definite amount bequeathed in the form of legacy per damnationem.

§ 1. From Substantive law Gaius now passes to the law of Procedure, confining himself partly with its Material as opposed to its Formal aspect: dealing with actions, that is to say, not so far as they are merely the method of realizing rights, but also as being the rights themselves which entitle a person who is wronged to obtain redress by legal process. Dig. 44, 7, 51, actio est jus, quod sibi debeatur, judicio persequendi.

If we inquire which code is the earlier in its development, the Substantive code or the code of Procedure, the answer is that they are essentially contemporaneous: a Substantive code can have no actual existence unless there is some method of giving it force; and again, a code of procedure can have no meaning unless there is a substantive law to be administered. But after recognizing that the two codes are correlative and necessarily coexistent, we find that historically the code of Procedure is prior in the chronological order: it attains to a high grade of development, while the Substantive code, which started into birth at the same time, remains in a rudimentary, undeveloped condition. Courts of law once established soon evolve strict rules to govern their proceedings, while society is in too rudimentary a condition to enable it to define the substantive law brought into existence by the legal remedies which are provided.

The following contrast of ancient and modern jurisprudence here deserves a notice. No primary rights can be conceived without sanctioning rights, or rights which arise when the primary rights are violated and again, no sanctioning rights can be conceived without Actions or modes of evoking the interposition of the sovereign power. And, as Rights imply Actions, so reciprocally Actions imply Rights. But though, as corresponding or correlated terms, Right and Action have a necessary connexion, and the existence of one may be inferred from the existence of the other; systems of jurisprudence may differ in different stages of develop ment as to which of these terms, the Right or the Action, they deem the more evident; which they regard as the datum and which

the matter to be proved; which the logical premiss and which the conclusion.

In primitive jurisprudence, when there is little direct intervention on the part of the state with private law, the Remedy is regarded as the certainty; the Right, primary or sanctioning, as the matter of deduction. The forms of Action, emphatically so in Statute-process (legis actio) and to a great extent even in the Formulary system as crystallized by statute or laid down in the edict, were capable of enumeration and incapable or difficult of multiplication; and from the application by the courts of these forms the citizen might deduce the list of his legal rights and duties. The logic of ancient law may be expressed in the maxim: Where there is a Remedy there is a Right: There is no Right unless there is a Remedy.

The modern jurist assumes the other, the more ideal of the two correlated terms, to be the more evident, and acts upon the converse maxim: Where there is a Right there is a Remedy; or, Given the Right, the Remedy follows. The action now is the dependent term: its forms are unimportant and indefinitely variable; they are no longer crystallizations. If a Right is established and no appropriate form of action seems to exist, a new one is forthwith invented, and its fitness to enforce the established right is sufficient to procure its recognition by the judicature. Such at least, if not opposite goals at which ancient and modern jurisprudence have arrived, appear to be opposite directions in which they diverge.

Sponsio or wager between the parties to a litigation was an indirect mode of submitting questions to judicial decision, which seems to have been in use before the introduction of the formulary system. We are left to conjecture how its classification enabled any jurist to count four classes of action. Its principal division seems to be into the sponsio where the pecuniary risk was serious and the penal sum important (sponsio poenalis), and the sponsio used for the purpose of framing an issue to be tried where the penal sum was nominal and not actually exacted (sponsio praejudicialis). This division of actions into four instead of two classes may possibly have arisen from the difficulty of finding a place in the twofold division for interdicta and praejudicia. The four classes of actions which Gaius refers to would accordingly be, actio in rem, actio in personam, actio per sponsionem praejudicialem, actio per sponsionem poenalem; but as the last form of action is regarded as being in personam, and the actio per sponsionem praejudicialem as in rem, Gaius prefers the twofold division. (Cf. Keller, Civil Process, § 87, n. 82.) According to Huschke the four classes intended are (1) personalis actio, (2) petitoria formula, (3) in rem actio, per sponsionem cujus summa per formulam petitur, (4) per sponsionem cujus summa

sacramenti actione petitur. (See Muirhead's Gaius, h. 1.) In either case the classification would involve a co-ordination of sub-genera and genera, or subdivisions and divisions.

A Real action, § 3, is one which asserts a jus in rem, a Personal action, § 2, one which asserts a jus in personam. A jus in rem, we may remember, is a right to certain forbearances, or freedom from molestation, corresponding to a duty imposed on all the world: a jus in personam is a right to certain performances or forbearances corresponding to a duty imposed on a determinate person. Jura in rem, which are rights of property, are Ownership, and jura in re aliena, such as Servitude, that is, some fraction of ownership, Emphyteusis, and Pignus. Jura in personam are Obligations founded on either contract or delict, or some quasi-contract or quasi-delict.

A Real action, accordingly, asserts either the ownership (hunc hominem meum esse aio) of the plaintiff or one of the jura in re aliena above mentioned; a Personal action asserts an obligation of the defendant towards the plaintiff.

In Roman law, it should be remembered, a claim of property in a movable is a Real action just as much as a claim of property in an immovable. Thus the distinction between Real and Personal actions which we meet with in the history of English law diverged widely from its Roman prototype.

A Real action or actio in rem when carried on in the form of legis actio sacramento, § 16, contained an assertion by each party of his claim to the thing not as against the other party to the suit, but absolutely. Hunc ego fundum ex jure Quiritium meum esse aio, &c., and similarly in the formulary procedure a real action names no party but the Plaintiff in the intentio, the principal part of the formula or written instructions of the praetor to the judex, in which the plaintiff's claim is specified; e. g. Si paret hominem quo de agitur ex jure Quiritium Auli Agerii esse; whereas a Personal action names the defendant as well as the plaintiff in the intentio, e. g. Si paret Numerium Negidium Aulo Agerio H. S. decem milia dare oportere.

A vindicatio originally in the form of legis actio sacramento in rem, in which the striking the slave with the vindicta or wand was retained, survived in the in jure cessio used for the purpose of manumission (vindicatio in libertatem), and also in the form of adoption, cf. 1 § 134-is qui adoptat vindicat apud praetorem filium suum esse, et illo contra non vindicante a praetore vindicanti filius addicitur. Trials concerning status were, we know, carried on in the decemviral court by process of legis actio till the time of Augustus. We know that in a question of libertas (liberalis causa), until the time of Justinian, the person whose freedom was in dispute could not be either plaintiff or defendant, his rights were

advocated by an Adșertor, Cod. 7, 17, De adsertione tollenda. Under the formulary system questions of status might be tried by a praejudicium, § 44, which was regarded as a kind of actio in rem. have no record of the precise form of the intentio in this case.

We

A vindicatio asserting ownership in land contained an intentio in these words: Si paret illum fundum ex jure Quiritium Auli Agerii (Plaintiff) esse. A vindicatio claiming not absolute property, but some fraction of ownership (jus in re aliena), for instance, a rural servitude, contained an intentio to this effect: Si paret Aulo Agerio jus esse per fundum illum ire agere, quanti ea res erit, &c., or, Si paret Aulo Agerio jus esse aedes suas altius tollere invito Numerio Negidio, quanti, &c., § 3. Cf. §§ 92, 93.

A Personal action, as we have seen, named in the intentio the defendant, who was alleged to be under an obligation to the plaintiff. E. g. if the plaintiff alleged that the defendant lay under an obligation to restore to him the thing he had lent him, the action was in this form: Si paret Aulum Agerium Numerio Negidio rem de qua agitur commodasse eamque Aulo Agerio redditam non esse, quanti ea res erit, tantam pecuniam condemna, si non paret, absolve.

The word Dare is used in the Intentio of a Condictio Certi, i. e. an action wherein the plaintiff asserts that the defendant is under an obligation to convey quiritary property in a determinate thing, whether a sum of money or any other object of property, a certain slave, certain corn, certain land. E. g. Si paret Numerium Negidium Aulo Agerio sestertium decem milia-tritici Africi optimi centum modios-dare oportere.

The word Facere never appears to stand alone in an intentio, but in its stead we have Dare facere in the Intentio of actio ex stipulatu, that is, of an action on a stipulation to enforce a claim of an uncertain amount, a claim of any service but the transfer of quiritary property in a certain thing, that is, to enforce any obligation not included under Dare as above defined. E.g. Quidquid paret Numerium Negidium Aulo Agerio dare facere oportere, § 5, comm.

Praestare is a term of wider meaning than the two preceding, and appears specifically to denote reparation for any harm, compensation for any loss, damages for breach of any obligation other than liability -dare-or dare facere. But some writers have tried to attach a more definite meaning to the term. (Cf. Muirhead's Gaius, 4 § 2.) We find it is used in connexion with some arbitria and actions ex fide bona, where the defendant's liability was to be determined at the discretion of the arbiter or judex. In all civil actions founded on Delict the intentio frequently contains the terms: damnum decidere oportere, § 37, for which some writers think praestare to have been an equivalent.