Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/732

708 ROMAN LAW [JUS NATTJRALE. tention" and a "condemnation." The matter of claim in both cases was certain, so much money in one, a slave in the other ; but, while in the first the condemnation also was certain, in the second it was uncertain. What if the claim also was uncertain, say a share of the profits of a ioint adventure assured by stipulation ? It was quite competent for the plaintiff to condescend on a definite sum, and -claim that as due to him ; but it was very hazardous, for unless he was able to prove the debt to the last sesterce he got nothing. To obviate the risk of such failure the praetors devised the ineerti condictio, whose formula commenced with a "demon- stration" or indication of the cause of action, and whose ' ' inten- tion " referred to it and was conceived indefinitely : " Titius be judge. Whereas A. A. stipulated with N. N. for a share of the profits of a joint adventure, whatever in respect thereof N. N. ought to give to or do for (darefacere oportet) A. A., in the money amount thereof condemn N. N.," and so on. 1 Once this point was attained further progress was comparatively easy, the way being open for the construction of formulae upon illiquid claims arising from trans- actions in which the practice of stipulation gradually dropped out of use (supra, p. 701), till at last the bonaefideijudicia were reached, marked by the presence in the "intention" of the words ex fide bona, "whatever in respect thereof N. N. ought in good faith to give to or do for A. A." ts appli- In the case of real actions the transition from the legis actiones ition to to the formulae followed a different course. The ./Ebutian law did jal not abolish the procedure per sacramentum when reference was to ctions. be to the centumviral court on a question of quiritarian right. In the time of Cicero that court was apparently still in full activity (p. 678), but by that of Gaius it is doubtful if it was resorted to except for trial of questions of inheritance. In his time questions of pro- perty were raised either per sponsionem or per formulam petitoriam. The procedure by sponsion must be regarded as the bridge between the sacramental process and the petitory vindicatio. In the first as in the second the question of real right was determined only indirectly. The plaintiff required the defendant to give him his stipulatory promise to pay a nominal sum of twenty -five sesterces in the event of the thing in dispute being found to belong to the former ; and at the same time the defendant gave security for its transfer to the plaintiff, with all fruits and profits, in the same event. The formula that was adjusted and remitted to a judge ex facie raised only the simple question whether the twenty-five sesterces were due or not : the action was in form a personal, not a real one, and was therefore appropriately remitted to a single judex instead of to the centumviral tribunal. But judgment on it could be reached only through means of a finding (sententia) on the ques- tion of real right ; if it was for the plaintiff he did not claim the amount of the sponsion, but the thing which had been found to be his ; and, if the defendant delayed to deliver it, with its fruits and profits, the plaintiff had recourse against the latter's sureties. The petitory formula was undoubtedly of later introduction and much more straightforward. Like the certi condictio it contained only ' ' intention " and ' ' condemnation." It ran thus : ' ' Titius be judge. Should it appear that the slave Stichus, about whom this action has been raised, belongs to A. A. in quiiitary right, then, unless the slave be restored, whatever be his value, in that you will condemn N. N. to A. A. ; should it not so appear, you will acquit him." 'ormulae The formulae given above, whether applicable to real or personal i jus and actions, are so many illustrations of the class known as formulae i factum juris civilis or in jus conceptae. The characteristic of such a. formula jptae. was that it contained in the "intention " one or other of the follow- ing phrases ejus esse ex jure Quiritium, adjudicari oportcre, 2 dari oportere, dari fieri oportere, or damnum decidi oportere. 3 Such & formula was employed where the right to be vindicated or the obligation to be enforced had its sanction in the jus civile, whether in the shape of statute, consuetude, or interpretation. Where, on the other hand, the right or obligation had its sanction solely from the praetor's edict, formulae so conceived were inappropriate and incompetent. The actions employed in such cases were actiones juris honorarii, and these either actiones utiles or actiones in factum. The first were adaptations of actions of the jus civile to cases that did not properly fall vithin them ; the second were actions entirely of praetorian devising, for the protection of rights or redress of wrongs unknown to the jus civile.* demnatio, and describes their several functions in iv. 39-43. Besides these & formula might be preceded by a praescriptio (Gai., iv. 130-137), and have incorporated in it fictions ( 32-38), exceptions ( 115-125), and replications, duplications, &c. ( 126-129). 1 This was specifically called the actio ex stipulatu, but was really nothing more than a variety of the condictio ineerti. The later actions on the consensual contracts, and on all the nominate real contracts except mutuum, in like manner had specific names, but in fact were just ineerti condictiones in the larger sense of the phrase. Employed only in the divisory actions, i.e., for dividing common property, partitioning an inheritance, or settling boundaries ; the demand was that the judge should adjudicate (or assign) to each of the parties such a share as he thought just 3 Employed in certain actions upon delict, where the old penalties of death, Of the actiones utiles some were called actiones ficticiac. Resort A to a fiction is sometimes said to be a confession of weakness, and lieticia adversely criticized accordingly. But every amendment on the law is an admission of defect in what is being amended ; and it was in sympathy with the spirit of Roman jurisprudence, when it found an action too narrow in its definition, to include some new case that ought to fall within it, rather by feigning that the new case was the same as the old, to bring it within the scope of the existing and familiar action, than to cause disturbance by either altering the definition of the latter or introducing an entirely new remedy. A bonorum possessor (supra, p. 702) held a position unknown to the jus civile ; he was not an heir, and therefore not entitled offhand to employ the actions competent to an heir, either for recovering the property of the defunct or proceeding against his debtors. The praetor could have had no difficulty in devising new actions to meet his case ; but he preferred the simpler expedient of adapting to it an heir's actions, by introducing into the formula a fiction of civil heirship ; so he did with the bonorum emptor or purchaser of a bankrupt's estate at the sale of it in mass by his creditors. Emptio bonorum was a purely praetorian institution, and the praetor, if he had thought fit, could easily have fortified the purchaser's acquisition by giving him praetorian remedies for recovering the property and suing the debtors of the bankrupt ; but here again he followed the simpler course of giving him, as if he were a universal successor, the benefit of an heir's actions by help of a fiction of heirship. 5 A peregrin could not sue or be sued for theft or culpable damage to property, for the XII. Tables and the Aquilian law applied only to citizens ; but he could both sue and be sued under cover of a fiction of citizenship. A man who had acquired a res mancipi on a good title, but without taking a conveyance by mancipation or surrender in court, if he was dispossessed before he had completed his usucapion, could not sue a rei vindicatio for its recovery, for he was not in a position to affirm that he was quiritarian owner ; neither, for the same reason, could a man who in good faith and on a sufficient title had acquired a thing from one who was not in a posi- tion to alienate it. But in both cases the praetor granted him what was in effect a rei vindicatio proceeding on a fiction of completed usu- capion, the Publician action referred to on p. 699. These are examples of actiones ficticiae, actions of the jus civile adapted by this very simple expedient to cases to which other- wise they would have been inapplicable, and forming one of the most important varieties of the actiones utiles. Quite different was Actior the course of procedure in the actiones in factum, whose number in fac- and varieties were practically unlimited, although for the most turn, part granted in pursuance of the praetor's promise in the edict that under such and such circumstances he would make a remit to & judex (judicium dabo), 6 and formulated in accordance with the relative skeleton styles also published on the album. A great number of them came to be known by special names, as, for example, the actio de dolo, actio negotiorum gestorum, actio hypothecaria, actio depecunia constituta, actio vi bonorum raptorum, actio de superficie, &c., the generic name actio in factum being usually confined to the inno- minate ones. Their formulae, unlike those in jus conccplae, sub- mitted no question of legal right for the consideration of the judge, but only a question of fact, proof of which was to be followed by a condemnation. That of the actio de dolo, for example, ran thus : "Titius be judge. Should it appear that, through the fraud of N. N., A. A. was induced to convey and cede possession to him of his farm (describing it), then, unless on your order N. N. restores it, you will condemn him in damages to A. A. ; if it shall not so appear, you will acquit him." Our limits do not admit of any explanation of the purpose, form, or effect of the prescriptions, exceptions, replications, &c., that were engrafted on a formula when required ; or of the ways in which the "condemnation" was occasionally "taxed" by the prsetor, so as to prevent the award of extravagant damages ; or of the con- sequences of defects in the formula ; or of the procedure in jure before it was adjusted, or in judicio afterwards ; or of appeal for review of the judgment by a higher tribunal ; or of execution (which was against the estate of the judgment-debtor, and took the form of incarceration only when his goods could not be at- tached). Our main object has been to show how elastic was this procedure, and how the praetorian formulae, in conjunction with the relative announcements in the edict, supplied the vehicle for the introduction into the law of an immense amount of new doctrine. The system was fully developed before Julian's consolidation of the praetorian remedy for the same wrong ; for Gaius observes (iv. 45) that in com- modate and deposit failure of the borrower or depositary to return the thing lent to or deposited with him gave rise to actions that might be formulated either in jus or in factum. In the same section he gives the styles of actiones depositi in jus and in factum conceptae ; their comparison is instructive. 5 Gai., iv. 35. Theophilus (Par. Inst., iii. 12) calls the bonorum emptor irpatTtbpios 5id5o%os (praetorian successor) of the bankrupt. 6 Examples: "Si quis negotia alterius . . . gesserit, judicium eo nomine dabo" (Dig., iii. 5, 3, pr.); "Quae dolo malo facta esse dicentur, si de his rebus alia actio non erit et justa causa esse videbitur, judicium dabo " (Dig., iv. 8, 1, 1); "Nautae caupones stabularii quod cujusque salvum fore receperint, nisi restituent, in eos judicium dabo " (Dig., iv. 9, 3, 1) ; " Quod quis commodasse dicetur, de eo judicium dabo" (Dig., xiii. 6, 1, pr.).