claims, could not be taken into consideration unless exceptions were inserted bringing them before the notice of the judge. And interest could not generally be claimed from before the time of the litis contestatio, except by special stipulation. (D. xii. 1. 31.) It was the actions derived from the jus civile, i.e. real actions and condictions, that were stricti juris. That a real action should, as in the case of the petitio hereditatis, be bona fidei, was quite an exception. But the petitio hereditatis had characteristics which allied it with personal actions, habet præstationes quasdam 'personales. (D. v. 3. 25. 18.) It could only be brought against those who possessed an inheritance (1) pro herede, i.e. as heir or bonorum possessor, or (2) pro possessore. Pro possessore possidet prædo qui interrogatus cur possideat, responsurus sit quia possideo, i.e. a possessor who does not pretend to justify his possession by any legal title. (D. v. 3. 11 and 12.) And not only was the petitio hereditatis thus personal in the sense of being limited to two classes of persons, but it had some of the consequences of a personal action. By it the plaintiff could recover from the possessor moneys he had derived from the inheritance, and it could be brought against debtors of the deceased to make them pay what they owed to the inheritance in case these debtors claimed to retain their debts as being the right heirs. (D. v. 3. 13. 15; D. v. 3. 42.) The jurists had been divided on the point whether in a petitio hereditatis cognisance could be taken of dolus malus without an exceptio. Justinian decided that it could, the action being treated as one bona fidei.

Actiones arbitraria are treated of in paragr. 31.

An action præscriptis verbis, otherwise in factum præscriptis verbis, or civilis in factum, was, as we have elsewhere said, an action in which at the head of the formula were placed words stating the facts giving rise to a contract which did not come under any of the heads of contracts bearing a particular name. Of these actions, which were always bona fidei and in jus conceptæ, the two mentioned in the text are only examples. In the contract permutatio, each party made a contract re, i.e. by depositing the thing bartered with the other; but the thing given was not given as a mutuum, a commodatum, a depositum, or a pignus, and therefore the circumstances had to be stated specially. The action de æstimato was given when a thing was entrusted to another to sell for a certain sum; the agent being permitted to retain all he received above that given, and to give back the thing if he could not obtain the price fixed. This was not precisely a locatio, a societas, or a mandatum, and therefore the action was given in the form of one præscriptis verbis. (See Bk. iii. Tit. 13. 2.)

29. Fuerat antea et rei uxoriæ actio ex bonæ fidei judiciis: sed cum, pleniorem esse ex stipulatu actionem invenientes, omne jus, quod res uxoria ante habebat, cum multis

29. Formerly, there was the action rei uxoria, which was included among the actions bonæ fidei; but finding the action ex stipulatu to be more advantageous, we have transferred, with

divisionibus in ex stipulatu actionem, quæ de dotibus exigendis proponitur, transtulimus, merito rei uxoriæ actione sublata, ex stipulatu, quæ pro ea introducta est, naturam bonæ fidei judicii tantum in exactione dotis meruit, ut bonæ fidei sit. Sed et tacitam ei dedimus hypothecam : præferri autem aliis creditoribus in hypothecis tunc censuimus, cum ipsa mulier de dote sua experiatur, cujus solius providentia hoc induximus.

many divisions, to the action ex stipulatu, when given for the recovery of marriage portions, all the effects before attaching to the action rei uxoria; the actio rei uxoriæ being then reasonably done away with, the action ex stipulatu, by which it is replaced, naturally assumed the character of an action bonæ fidei, but assumed it only when brought for the recovery of a marriage portion. We have also given the wife an implied mortgage, but when we prefer her to mortgagees, we do so only whenever she herself sues for her marriage portion. For it is to her personally that we grant the privilege.

D. iv. 5. 8; C. v. 13; C. viii. 18. 12. 1.

In order to enforce the restitution of a marriage portion, the actio rei uxoria was given; but sometimes the wife or other person entitled, not content with the remedy, stipulated with the husband for the restitution, and thus secured the power of bringing an action ex stipulatu.

In the actio rei uxoria, which was an action bona fidei, the husband could, for different reasons, make certain deductions in his restitution of the dos. He had three years in which to make restitution of all things, quæ numero, pondere, mensurave constant; he could oppose to the action the beneficium competentia, that is, he was only condemned to pay quantum facere potest; and he could deduct the useful as well as the necessary expenses he had incurred in managing the dotal property. (See paragr. 37.) The wife could not transmit the action to her heirs, and if her husband was deceased, and she had benefited by his testament, she could not both accept the gift under the testament, and also ask for the restitution of her portion, but was obliged to abandon either the one advantage or the other. (ULP. Reg. 6.)

None of these drawbacks attended the action ex stipulatu. There could be no deductions, no delay in payment, no regard to the husband's power to pay. The action passed to the heirs of the wife, and she could take, in addition, anything given her by her husband's testament.

However the dos

Justinian united the two actions into one. might have been given, and whether there had really been any stipulation to restore it, a tacita stipulatio was, in every case, to be supposed. The actio rei uxoria was to be abolished, and all actions for the restitution of a marriage portion to be brought ex stipulatu. But then, this action was treated as one bona fidei, and produced most of the advantages which the husband had enjoyed under the actio rei uxoria. He had a year in which to restore all moveables; he could claim the beneficium competentia, and might deduct the necessary expenses he had been put to. (See paragr. 37.) Lastly, in order to make the position of the

wife more secure, Justinian gave her an implied mortgage on the effects of her husband, taking priority over all other incumbrances -a privilege, however, personal to herself. (C. iv. 13.)

30. In bonæ fidei autem judiciis libera potestas permitti videtur judici ex bono et æquo æstimandi, quantum actori restitui debeat. In quo et illud continetur, ut, si quid invicem actorem præstare oporteat, eo compensato, in reliquum is, cum quo actum est, condemnari debeat. Sed et in strictis judiciis ex rescripto divi Marci opposita doli mali exceptione compensatio inducebatur. Sed nostra constitutio eas compensationes, quæ jure aperto nituntur, latius introduxit, ut actiones ipso jure minuant sive in rem sive personales sive alias quascumque, excepta sola depositi actione, cui aliquid compensationis nomine opponi satis impium esse credidimus, ne sub prætextu compensationis depositarum rerum quis exactione defraudetur.

30. In all actions bonæ fidei full' power is given to the judge to determine, according to the rules of equity, how much ought to be restored to the plaintiff; whence it follows that when the plaintiff also is found to be indebted to the defendant, the debtor ought to be allowed to set off the sum due to him, and to be condemned only to pay the difference. Even in actions stricti juris, a rescript of the Emperor Marcus permitted a set-off to be claimed, by opposing the exception of fraud; but our constitution, when the debt due to the defendant is evident, has given a greater latitude to claims of set-off; for now actions, real or personal, or of whatever kind, are ipso jure reduced by the claim, with the exception only of the action of deposit, against which we have judged it highly improper to permit any claim of set-off to be made, lest under this pretence any one should be fraudulently prevented from recovering the thing deposited.

GAI. iv. 61; C. iv. 31. 14. pr. and 1; C. iv. 34. 11.

The subject of compensatio will be treated of more fully under paragr. 39.

31. Præterea quasdam actiones arbitrarias, id est ex arbitrio judicis pendentes, appellamus, in quibus nisi arbitrio judicis is, cum quo agitur, actori satisfaciat, veluti rem restituat vel exhibeat vel solvat vel ex noxali causa servum dedat, condemnari debeat. Sed istæ actiones tam in rem quam in personam inveniuntur. In rem veluti Publiciana, Serviana de rebus coloni, quasi Serviana, quæ etiam hypothecaria vocatur in personam veluti quibus de eo agitur, quod aut metus causa aut dolo malo factum est, item qua id, quod certo loco promissum est, petitur. Ad exhibendum quoque actio ex arbitrio judicis pendet. In his enim actionibus et ceteris similibus permittitur judici ex bono et æquo secundum cujusque rei, de qua actum est, naturam æstimare, quemadmodum actori satisfieri oporteat.

31. Some actions, again, are called arbitrary, as depending upon the arbitrium of the judge. In these, if the defendant does not, on the order of the judge, give the satisfaction awarded by the judge, and either restore, exhibit, or pay the thing, or give up a slave that has committed an injury, he ought to be condemned. Of these ar bitrary actions some are real and some personal: real, as the actions Publiciana, Serviana as to the property of a farmer, and quasi Serviana, also called hypothecaria; personal, as those by which a suit is commenced on account of something done through fear or fraud, and that by which something is sought which was promised to be paid at a particular place; the action ad exhibendum also depends on the arbitrium of the judge: in these actions, and others of a like nature, the judge may determine, according to the principles of equity and the circumstances

of the particular case, the satisfaction which the plaintiff ought to receive.

D. vi. 1. 68; D. iv. 2. 14. 4; D. xiii. 4. 4. 1; D. x. 4. 3. 9; D. xx. 1. 16. 3; D. iv. 3. 18.

In the actiones arbitraria the judge was instructed only to condemn the defendant in a sum of money, if he did not satisfy the demand of the plaintiff, supposing that demand was well founded. When, therefore, the judge had ascertained the validity of the plaintiff's claim, he issued an order (arbitrium) to the defendant, and at the same time condemned him to pay, in case of his refusal, a sum proportionate to the value of what was claimed, quanti ea res erit. This was fixed, if the defendant, when ordered to restore a thing, had fraudulently put it out of his power to restore it, by the plaintiff himself, who stated on his oath (D. xii. 3. 5) the amount he considered fairly due to him as compensation; otherwise the judex fixed the amount according to the circumstances of the case; and, at any rate in the time of Ulpian, the manus militaris was employed, by the direction of the judge, to put the plaintiff in possession, when the defendant had the thing in his possession and would not give it up. (D. vi. 1. 68.)

Actions in rem were enforced by being made arbitraria, and all actions in rem were so enforced. (See Tit. 17. 2.) In real actions the satisfaction ordered by the judge was to restore the thing. In the actio Serviana and quasi-Serviana, the arbitrium was alternative, and the defendant was ordered either to give up the thing pledged, or to pay the debt. (D. xx. 1. 16. 3.) It is to this case that the words 'vel solvat' in the text refer. When the thing claimed was restored, the condemnatio might still be made available for the fructus. (D. vi. 1. 68.) Among personal actions, those quod metus causa, de dolo malo, and ad exhibendum were arbitraria, because they were brought virtually to have something restored or exhibited. The action de eo quod certo loco promissum est was made arbitraria, for the peculiar reason mentioned below.

With respect to the actio quod metus causa, see paragr. 25 and 27. The actio de dolo malo was given to avoid the consequences of a dolus malus, but only when there was no other means of avoiding them (D. iv. 3. 1, 2); it was in simplum; it subjected the defendant, if condemned, to infamy, and had to be brought within a year. (D. iv. 3. 29.)

As will be found from Tit. 12. 2, in every action the defendant was to be absolved if, before sentence was given, he satisfied the demands of the plaintiff.

Qua id, quod certo loco promissum est, petitur. When a contract was made in which it was agreed that payment should be made at a particular place, the creditor could not demand payment anywhere else. If he did, he asked for more than was his due, and was subject to the consequences of a pluris-petitio.

(See paragr. 33.) Supposing, indeed, the action brought on the obligation was one bona fidei, or had an intentio incerta, as being for an undetermined object, then, as the judge would take into account all the circumstances of the case, and allow the defendant the benefit of whatever difference being sued in a wrong place could be supposed to make to him, the consequence of this plurispetitio would be immaterial. But if the action was stricti juris and for a thing certain, the plaintiff could not have brought it elsewhere than in the place named without incurring the consequences of a plus-petitio, had not the prætor come to his relief and given him the actio arbitraria mentioned in the text. By this action the creditor was allowed to sue in the wrong place, but the prætor compensated the debtor by giving him an advantage. The action was made arbitraria, and the debtor was ordered to pay what the creditor claimed, or to give security that it would be paid in the place where due. If he did not do this, then in the condemnatio the judex fixed an amount in which the advantage it might have been to the debtor to have paid in the particular place was taken into consideration. (See paragr. 33.) The prætor, however, perhaps only allowed the creditor to take advantage of this action if the defendant absented himself from the place where the payment ought to have been made (D. xiii. 4. 1), and then the creditor could bring this action either at Rome or in any place where the defendant had a domicile, or in any place where the defendant consented to appear. (D. v. 1. 19. 4.)

32. Curare autem debet judex, ut omnimodo, quantum possibile ei sit, certæ pecuniæ vel rei sententiam ferat, etiam si de incerta quantitate apud eum actum est.

32. A judge ought, as much as possible, to take care that his sentence awards a thing or sum certain, even though the claim submitted to him may have been for an uncertain quantity.

GAI. iv. 48. 52; C. vii. 4. 17.

Certæ pecuniæ vel rei. Before the formulary system the judgment might be either to give a thing or to pay a sum of money. Under the formulary system the condemnatio was always to pay a sum of money. Under the system of judicia extraordinaria a return was made to the old law, and the condemnatio might be not only for a certain sum of money, but also for any other definite thing, that thus the object of the demand might be directly obtained.

33. Si quis agens in intentione sua plus complexus fuerit, quam ad eum pertinet, causa cadebat, id est rem amittebat, nec facile in integrum a prætore restituebatur, nisi minor erat viginti quinque annis. Huic enim sicut in aliis causis causa cognita succurrebatur, si lapsus juventute fuerat, ita et in hac causa

33. Formerly, if a plaintiff claimed in his intentio more than his due, he failed in his action, that is, he lost the thing owing to him, nor was it easy for him to get reinstated by the prætor unless he was under the age of twentyfive years, for in this, as well as in other cases, in which aid was given on good ground for it being proved, it was

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