when a movable thing is claimed in this, — that the value of the thing should always be stated and sued for in case the thing itself could not be delivered, then the value would be decreed to plaintiff; thus being an ac tion both in rem and in personam, or a mixed action, as Bracton called it. By the Civil Law both land and personal property could be recovered by the in rem actio. And the Civil Law did not anciently recog nize the mixed action as a proper class, but they are often mentioned as a kmd of action, and only admitted the two classes, in rem and in personam. (Gaius, Com. book iv. sec. 1.) He also informs us that actions are in duplum,in triplum.in quadruplum, etc., precisely as in the Institutes. (Fol. 103, ^f 6.) So, also, he defines the confessory and negative ac tions (fol. 103, if 7), evidently taken in toto from the Civil Law. (Inst., book iv. tit. 6, § 2.) In like manner, he also tells us that out of malfeasances certain actions arise, such as the condictio reí furtivœ, actio vi bonorum raptorum, actio legis Apuliae et injuriam. All these are well-known actions or condictions of the Roman law, as well as the condictio certi ex mutuo. In the Civil Law, actions in personam were called condictions, and had various names, according to the object sought to be obtained through them; as, the condictio indebitati, condictio furtivae, condictio ob causam datorum, etc. Bracton (fol. 103 b) tells us that actions arise from various obligations, ex contráctil, and that the obligations, as before explained, arise or are contracted, some through the thing itself, some by words, some by writing, and some by consent. This is evidently copied from the third Book of the Institutes, title 14, § 2, where the same definition is given in the same order, and in nearly the same words. By the Civil or Roman law, obligations arising from contracts were contracted in four modes; namely, Re, aut Verbis, aut Littcris, aut Consensu, and which are thus explained. 1. In many conventions the obligation
and action are not founded upon reciprocal assent, but, without the formality of words of the obligation, they are founded through that which one gives or does for another, which the other must return, or for which he must do something else. This is what the Romans term obligations quœ re contrahnntur. (Mackeldey, § 429.) These con tracts are of two kinds. Some of them have a particular name, and produce an action bearing the same name; these are termed nominate contracts, and always have for their object the return of a particular or certain thing, — the tiling given. Others, with the Romans, have no particular names, and produce only an action prescripts verbis, introduced subsequently to the mentioned particular actions These kinds of con tracts were called innominate contracts, and sometimes proceed for the return of the par ticular thing, and sometimes — mostly, per haps — for a designated counter-performance. These were the two kinds; and when the stipulations were for a counter-performance, or a performance by the other party, which did not fall within the definition of the con sensual contracts, they were called innomi nate or nameless, and were classed as four in number; namely, do ut des, do ut facias, facio ut des, facio n1 facias. The nominate contracts were such as loan, commodatum, deposit, pledge, etc. The innominate contracts were commission, an exchange, etc. 2. Verbis, or obligations from words. These obligations were contracted by the use of certain set forms of words, as, " Do you undertake?" (Spondes?), " I do under take " (Spondeo), etc., which were called stipulations. 3. Litteris. These were contracts, made in writing, of various kinds. 4. Consensu. These were contracts made by consent of the parties, as in buying and selling, letting and hiring, partnership, and mandate. Now, Bracton refers to all this as law, without any reference to his authority what
