true, the implied right is as clearly brought out by the instructions to the iudex as if express reference had been made to it in the formula.

Actions of this kind-in factum conceptae-form the great illustration of the praetorian development of Substantive through Adjective Law. The earliest mode in which the praetor conferred rights unknown to the ius civile was by the employment of fictions. His instructions to the iudex might be paraphrased thus: 'The plaintiff has, by the civil law, no right whatever against the defendant; but if, supposing so and so were the fact, he would be entitled iure civili, then find for him in any case.' Sir Henry Maine has shown1 why this expedient was at first adopted in preference to openly altering the law. Fictions satisfy the desire for improvement, which is not quite wanting, at the same time that they do not offend the superstitious disrelish for change which is always present. At a particular stage of social progress they are invaluable expedients for overcoming the rigidity of law.' Eventually, however, the praetor discarded his original method, and began to boldly grant independent actions in cases which bore no analogy whatsoever to other relations already protected iure civili. The Intentio of such new actions could not allege a right in the plaintiff, for there was, ex hypothesi, no right by the civil law at all; but it could allege a fact or facts, and the judge could be instructed to find for or against the plaintiff according as he ascertained the allegation to be true or untrue 2. Actiones in factum conceptae, in short, are not civil law actions at all: they are all derived from the imperium of the magistrate. The formulae of those which were of most frequent occurrence were permanently incorporated in the album; on these others were modelled, and thus we get actiones in factum directae, and actiones in factum utiles. All, however, so far as we know them, are in personam, forming a third class of personal actions, co-ordinate with stricti iuris and bonae fidei iudicia. The two latter are easily distinguishable from actiones in factum by their having an Intentio in ius concepta-which contains, i. e. the word 'oportere :' but Savigny is of opinion that the more equitable rules and free procedure of bonae fidei actions were applied, so far as was possible, to actiones in factum as well. Under some circumstances, indeed, a plaintiff might

1 Ancient Law pp. 26, 27.

2 For examples of formulae in factum conceptae see Gaius iv. 46, 47, and Keller, Civil Process § 33 d.

3 Hence the division of actions into civiles (or legitimae) and honorariae (Bk. iv. 6. 3 supr), the latter being those which were referable solely to the imperium, and had no foundation in the civil law at all; they consist of the two classes of actiones utiles and in factum conceptae.

proceed either in ius or in factum; Gaius points out (iv. 47) that this was the case in depositum and commodatum, and possibly pignus was equally privileged. Finally, an ordinary actio in factum, which was always of purely praetorian origin, must carefully be distinguished from the actio in factum civilis (or praescriptis verbis), the remedy on an innominate contract. This was necessarily incerta, and therefore would fall under the general rule, that a demonstratio (quod, whereas, etc.) always preceded an intentio incerta (in ius concepta). But it was the function of a demonstratio to technically designate the actual ground of an action (sale, hire, etc.); and it was the very essence of an innominate contract that it had no technical name, so that the ground of an action upon it could not be thus shortly set forth. The result was that for a demonstratio was substituted a summary statement of the facts upon which the plaintiff relied, praescripta verba, and the name of the action-civilis in factum-related to this, though the Intentio was still in ius concepta.

A third and rare part of a formula (to whose constituent elements we now return) is the Adiudicatio (Gaius iv. 42), which is found only in the formulae of iudicia divisoria, actions demanding a partition of jointly-owned property on behalf of one of the co-owners. Its form is given in the passage of Gaius referred to-quantum adiudicari oportet, iudex Titio adiudicato-and it empowered the iudex not only to divide the subject-matter of the action, but also, where an exact division was impracticable, to establish usufructs and other partial rights in order to redress the inequality. As, however, it could never be certain, a priori, that an equal partition would be possible, the Adiudicatio seems never to have stood by itself, but in loose combination with a far more important and universal element in a formula, viz. a Condemnatio, by which the judge was enabled to impose a pecuniary payment upon one joint owner in favour of another, to whom a smaller than his due portion of the joint property had been awarded.

The Condemnatio is, with very few exceptions, found in every formula, being the clause in which the iudex is instructed to condemn or absolve the defendant according to the truth or falsehood of the plaintiff's allegations. The formulary procedure provided no direct machinery for enforcing on a defendant delivery of specific property, or specific performance of a contract, and consequently the gist of the condemnatio always lay in a money payment (Gaius iv. 48). If the object of the action was a liquidated debt, the condemnatio was said to be certa (ib. 50), and the judge was instructed to condemn

the defendant in exactly that amount; if he awarded a sum either greater or less, he was guilty of a quasi-delict, ut qui litem suam fecerit' (Bk. iv. 5. pr. supr.). This kind of condemnatio, mentioning a specific sum, is found in condictio certi and in actions in factum conceptae, which claim a liquidated penalty (as in Gaius iv. 46). In all other actions the condemnatio was said to be incerta, and it was the judge's duty litem aestimare,' to fix the sum payable by the defendant if the plaintiff succeeded in establishing his case. Even in condemnatio incerta a distinction has to be drawn. It may be absolutely incerta (or, as Gaius calls it in iv. 51, infinita), the judge's discretion in the litis aestimatio being completely unfettered1: or, secondly, a maximum may be fixed in the formula, below which the iudex may assess the damages, but which he cannot exceed without exposing himself to the action quasi ex delicto; here the condemnatio was said to be incerta cum taxatione 2.

Under the head of Condemnatio it seems convenient to describe the actio and formula arbitraria. As a general rule, the condemnation of the defendant depends upon one condition only, and that a positive one, viz. satisfactory proof of the plaintiff's right, or of the facts alleged in the intentio: si paret..., condemna. But sometimes it was made to depend further on a second negative condition, viz. non-performance by the defendant of some specific act, which was introduced into the formula by the word nisi. Such a

1 The following are examples. (i) In Real action-si paret... Auli Agerii esse, quanti ea res est, tantam pecuniam A. Agerio N. Negidium condemna: si non paret, absolve. (ii) In Personal action-quod . . ., quicquid paret ob eam rem dare facere oportere, eius rei tantam pecuniam condemna: si non paret, absolve.

2 E. g. Iudex A. Agerio N. Negidium duntaxat sestertium x millia condemna. The commonest form of taxatio is where the maximum is fixed in iure by the plaintiff subject to the praetor's approval, as was the case in the actio iniuriae (Gaius iii. 224), and in penal actions in which the penalty depended on the value of an object, e.g. in furtum and rapina. There was, however, a different kind of taxatio in those cases where the defendant was not personally liable for the whole of what is properly the object of the action, but (e. g.) only so far as he has been enriched at the plaintiff's cost, or only so far as a peculium extends (actio de peculio).

3 For examples of formulae arbitrariae see Mr. Poste's note on Gaius iv. 47. What actions were arbitrariae is somewhat uncertain. Under them we may place without hesitation most real actions, and of remedies in personam those praetorian actions which were brought to obtain restitution (e. g. doli, metus): for noxal actions see on Bk. iv. 8 supr. From the fact that bonae fidei actions were sometimes called arbitria, it has been supposed that their formula was always arbitraria. Mr. Poste thinks that only such of them as aimed at restitution (e. g. depositi, commodati, locati, rei uxoriae) were of this character. This view is to some extent supported by the

formula was called arbitraria, because, if the plaintiff established his right against the defendant, the latter had the option of performing the specific act, or in default of being condemned in damages: if he did the former, he was entitled to absolution. Though no defendant could be compelled by this form of action to deliver specific property, or to perform his contracts, yet it was the nearest approach to a specific enforcement made by the formulary system. The mode, however, in which the damages were assessed was specially adapted to induce a defendant to perform the act demanded in preference to paying damages; for the plaintiff was allowed to depose on oath. (iusiurandum in litem) as to the value to him of the object claimed, or the pecuniary loss which he would suffer through the other's breach of contract. The tendency seems to have been to favour plaintiffs, and to accept their estimate without qualification, unless it was outrageously unfair, so that the system may be conjectured to have worked with tolerable success.

So far we have been concerned entirely with actions in personam. Excluding the old procedure by sacramentum before the centumviral court, there were two forms of real action, known respectively as formula petitoria and the action per sponsionem. The first was the great type of actio arbitraria, the Intentio running 'si paret eam rem Titii esse ex iure Quiritium neque eam rem Gaius arbitratu tuo restituet [quanti ea res erit tanti Gaium Titio condemna,' etc.]. Here the disputed right was tried directly and in the open light, instead, as in sacramentum and sponsio, of being hidden behind a wager; and the proceedings in iudicio, if the plaintiff succeeded in proving his case, consisted of a pronunciatio by the iudex in his favour, and an arbitratus (ut reus rem restituat) based thereon: if the defendant refused or was unable to make restitution, there followed a iuramentum in litem and condemnatio1. The action per sponsionem was closely modelled after the old sacramentum, the existence of the right in rem which was at issue being tried as incidental to a right

formula (in ius concepta) of the actio depositi in Gaius iv. 47, if NR there may be taken to mean 'nisi restituat;' but it may be argued with some force that the formula of a bonae fidei action was not arbitraria, because the iudex in such a suit had already, in virtue of his commission to decide the matter ex fide bona,' all the power which such a formula could give him, including that of absolving the defendant if he satisfied the plaintiff before judgment.

1 This was the form of action employed in hereditatis petitio, in praetorian real actions (e.g. Publiciana), in suits relating to servitudes (confessoria and negatoria), and perhaps in the actio finium regundorum. It differed from the procedure per sponsionem in the form of satisdatio entered into by the defendant, Gaius iv. 91.

in personam based upon a wager. The claimant of property challenged his opponent to a bet upon the title: si homo, quo de agitur, ex iure Quiritium meus est, sestertios xxv nummos dare spondes? (Gaius iv. 93); and if was upon this promise that the suit was brought, so that the action, though its proper and ultimate object was a real right, in form was in personam. To secure delivery of the object, along with its fruits and accessions, in the event of the plaintiff's success, the defendant had personally to give security (pro praede litis et vindiciarum), and the amount of the wager, being merely trifling, was never exacted, whence its name sponsio praeiudicialis. For the same reason there was no restipulatio by the defendant, as in condictio certi 1.

It remains to notice certain clauses which were sometimes inserted in the formula at the instance of the defendant, viz. exceptiones and praescriptiones pro reo. It was a peculiar rule of the formulary system that the defendant was not allowed to plead some grounds of defence in iudicio unless they had been alleged in iure, and the judge's attention expressly called to them by an addition to the Exceptiones are pleas of this character: defences which do not actually traverse the allegation of the plaintiff, but set up a countervailing right, rendering the former of at least no present value, and which, if they are to be successfully pleaded, require (though to a larger extent in some classes of actions than in others) to be tersely embodied in the formula, by an addition to the Intentio, instructing the iudex to condemn the defendant only on the fulfilment of two conditions instead, as usual, of one, viz. (a) a positive condition, si paret, etc.: (6) a negative condition, non-proof by the defendant of

1 It was but seldom, as has been observed above, that a formula consisted of all the four ordinary elements (demonstratio, intentio, adiudicatio, condemnatio) already described. The composition of the different classes of formula may be summarised thus:

(a) Those of (1) real actions, (2) personal actions which are certae and in ius conceptae, and (3) actions in factum conceptae, have only intentio and condemnatio. (6) Those of personal actions which are in ius conceptae, but incertae, have, as a general rule, demonstratio, intentio, and condemnatio; the iudicia divisoria, which belong to this class, have an adiudicatio as well.

(c) Praeiudicia (for which see Gaius iv. 44) have only an intentio. Thus

The Demonstratio never stands alone; it occurs only in personal actions which have an intentio incerta in ius concepta, and a civile nomen (for in default of this its place is supplied by praescripta verba, p. 633 supr.).

The Intentio is found in every formula.

The Adiudicatio occurs only in formulae of iudicia divisoria; and

The Condemnatio concludes every formula except those of praeiudicia, but cannot stand alone.