(1) It remains for us to speak of actions. And if we inquire how many
kinds of actions there are, the better opinion seems to be that there are but
two, real and personal; for those who say that there are four, and include such
as arise from solemn agreements, do not perceive that some kinds of actions are
subdivided into others.
(2) A personal action is one which we bring against anyone who is liable
to us under a contract, or on account of a crime; that is, that (what) we claim
is that he is bound to give something, to do something, or to perform some
(3) A real action is one in which we either claim some corporeal
property to be ours, or that we are entitled to some particular right in the
property, for instance, the right of use and enjoyment; or the right to walk or
drive through the land of another; or to conduct water from his land; or to
raise the height of a building, or to have the view unobstructed; or when a
negative action is brought by the adverse party.
(4) Therefore, these actions being distinct, it is certain that we
cannot make use of the following form to recover our property from another,
namely: "If it appears that he should be required to transfer it." For what is
ours cannot be transferred to us, as it is understood that what is given to us
is given for the purpose that it may become ours, and property which already
belongs to us cannot become ours any more than it now is. Through hatred of
thieves, and for the purpose of making them liable to a greater number of
actions, the rule has been adopted that, in addition to the penalty of double
and quadruple the value of the property obtained, thieves are also liable to
the form: "If it appears that the defendant should be required to transfer the
property"; even though the action by which we seek to recover what belongs to
us may also be brought against him.
(5) Moreover, real actions are styled suits for the recovery of
property, but personal actions, by which we assert that something must be
given, or some act be performed, are called condictiones.
(6) Again, we sometimes bring suit merely to recover property; sometimes
only to recover the penalty; and sometimes to recover both.
(7) For example, we sue merely to recover property in actions brought
under a contract.
(8) We bring suit only to recover a penalty, for example, in the actions
of theft and of injury; and, according to the opinion of certain authorities,
in an action for goods taken by violence; for we are entitled to recover the
property by either a real or a personal action.
(9) Moreover, we bring suit to recover both the property and a penalty;
for instance, in those cases in which we bring our action for double damages
against a party who defends the case; and this happens in an action to recover
a judgment debt; or expenses paid for a principal; or damages for injury under
the Lex Aquilia; or to recover legacies; or a certain sum which has been
bequeathed by condemnation.
(10) Moreover, there are some actions which refer to the ancient form of
judicial procedure upon which they are based; and others become operative by
their own force and power. In order that this may be clear, we must first treat
of those which are based upon ancient judicial procedure.
(11) These actions which the ancients employed were so designated,
either for the reason that they were provided by the law — although at
that time the edicts of the Prætor, by means of which many new actions
were introduced, had not come into use — or, because they followed the
words of the law, and therefore, like the law itself, were observed without any
alteration. Hence, it was decided that, a person who brought an action against
another for cutting his vines, and in the pleadings called them "vines," should
lose his case, as he ought to have called them "trees," because the Law of the
Twelve Tables, under which the action for cutting vines was brought, speaks in
general terms of the cutting of trees.
(12) Actions were brought in five ways under the ancient form of
judicial procedure, and were called Sacramentum, Judicis Postulatio,
Condictio, Manus Injectio, Pignoris Capio.
(13) The action Sacramentum was a general one, for where no
provision was made by the law in any other way for bringing suit with
 The legis actiones were the earliest forms of
judicial procedure known to the Roman law for the collection of claims and the
enforcement of obligations. As will be observed, they are of a very primitive
character, and it is surprising, when taking into consideration the wonderful
progress of the Roman people in intelligence and knowledge, that these
antiquated and cumbersome methods survived for so long a period. They were
based upon the Twelve Tables; upon customs which, by continuous usage, had
acquired full legal authority; upon the decision of the various popular
tribunals; and upon statutes which were passed from time to time either for the
purpose of explaining or confirming obscure or disputed points of ancient
jurisprudence, that is, what was ordinarily designated the Civil Law. The
extreme nicety with which the established forms were required to be observed,
and which, if neglected in the slightest particular, caused the litigant to
irretrievably lose his case, forcibly recalls the technical accuracy demanded
by the old system of Common Law pleading that, for generations, exercised to
the utmost the legal ingenuity and skill of the English practitioner. The
equitable jurisdiction of the Prætor was expressly devised to remedy the
abuses and relieve the distress to which rigid adherence to the rules of the
legis actiones constantly gave rise. This innovation was deplored by the
eminent jurisconsults of Rome, who regarded any change introduced into the
existing judicial procedure as unnecessary, dangerous, and revolutionary; an
example which was subsequently followed to the letter by the lawyers of England
upon the establishment of the Court of Chancery, of which the Prætorian
Tribunal was the prototype.
The Sacramentum, so called from the wager or forfeit, which
involved the deposit by the parties in the hands of the Pontiffs, for the
benefit of the sacra publica,
reference to certain property, it was done by means of an oath. This
proceeding was attended with danger to the party swearing falsely; just as, at
present, is the case in the action for the recovery of money lent, on account
of the solemn agreement by which the defendant assumes a risk if he rashly
denies the claim, and because of the counter engagement by which the plaintiff
becomes liable if he did not recover the debt. Hence, the party who was
defeated was obliged to pay the amount of money deposited by way of penalty,
which was placed in the Public Treasury; and, for this reason, sureties were
given to the Prætor; instead of, as at present, the amount deposited as
penalty being for the benefit of the party who gained the case.
(14) The amount deposited by way of penalty in this proceeding was
either five hundred, or fifty asses; five hundred were deposited when the
property in question was worth a thousand or more asses, and fifty when it was
worth less than a thousand; for this was provided by the Law of the Twelve
Tables. When, however, the controversy was with reference to the freedom of a
slave, although he may have been extremely valuable, still the amount deposited
by way of penalty was only fifty asses. This was also provided by the Twelve
Tables in favor of freedom, in order that the protector of the slave might not
be unduly oppressed . . . . .
(15) Moreover, when all these actions were brought to enforce an
obligation, the parties, having furnished sureties, agreed to again appear for
the appointment of a judge; and having returned after thirty days, the judge
was appointed in accordance with the Lex Pinaria; while before this law
was enacted he was appointed immediately. We understand from what has been
already stated, that if the property in dispute was worth less than a thousand
asses, the amount deposited
and by way of security, of a quantity of bronze or copper equal in value
to double that of the property in controversy, half of which was lost by the
one who was defeated, was originally the only method of civil procedure among
Little of the Judicis Postulatio is known to us but the name,
which has reference to an application to the magistrate to appoint a judge or
arbiter to hear the case, after joinder of issue; and therefore, that it made
provision for arbitration.
The Condictio was strictly a personal action for the recovery of
a certain sum of money which had either been loaned, or paid by mistake. It was
introduced as a convenient substitute for the preceding and more complex forms.
The plaintiff, by appearing before the Prætor, could force the defendant
to agree (condicere) to have a judge appointed within thirty days.
The Manus Injectio enabled a surety who had paid the debt, to
seize and imprison the principal until the latter had fully reimbursed him, if
six months had elapsed after payment.
The Pignoris Capio, as stated in the text, lay for the
enforcement of obligations to soldiers for subsistence and pay, as well as to
enable magistrates to compel parties against whom judgments had been rendered
to comply with them. In effect, it was almost identical with levying a distress
under the English law. The last two of the legis actiones, rather belong
to the category of legal processes or forms of execution, than to lawsuits, in
the strict sense of the term.
We are indebted to Gaius for the most complete account of these curious
old methods of judicial procedure and which, while far from satisfactory, is
still more detailed than those of other Roman writers on jurisprudence, who,
for the most part, only vaguely refer to the subject. The legis actiones
were nominally abolished B. C. 167. — ed.
 Original manuscript illegible.
was usually only fifty, and not five hundred. Then, after the judge had
been appointed, the parties gave notice to one another to appear before him on
the third day following. Finally, when they came into court, and before the
case was argued, it was customary to state it briefly, and in a concise manner;
which was called the presentation of the case, which was, as it were, a mere
summary of the same.
(16) When a real action was instituted, the movable property, and that
which could move itself and be brought into court, was demanded as follows. The
party making the claim, held a staff, and then grasping the object in dispute,
as for instance, a slave, said: "I declare this slave to belong to me, on
account of his condition, in accordance with quiritarian right. See! in
accordance with what I have stated, I have placed my staff upon him"; and, at
the same time, he laid the staff upon the slave. His opponent then said and did
the same thing, and when both of them had asserted their claims, the
Prætor said: "Both of you release your hold upon the slave"; and they did
so. The one who first asserted his claim, then interrogated the other as
follows: "I ask whether you will state on what ground you make this claim?" and
he replied, "I asserted my right to him by placing my staff upon him." The
first claimant than said, "As you have wrongfully claimed him I call upon you
to deposit five hundred asses by way of forfeit," and his opponent then said,
"I call upon you to do the same"; (that is if the property was worth more than
a thousand asses five hundred were deposited but if it is worth less only fifty
was the amount of the forfeiture).
After this the same proceedings took place as in a personal action, and
then the Prætor made a temporary disposition of the property in favor of
one of the parties, that is to say, he gave him possession of it for the time,
and ordered him to furnish sureties to his adversary for the expenses of the
suit as well as the mesne profits of the property which was the object of the
action. The Prætor, moreover, took sureties for the forfeits, from both
parties, for the benefit of the Public Treasury. The staff was employed instead
of a spear, as an emblem of lawful ownership, for whatever was taken from an
enemy a man considered to be absolutely his own; wherefore in cases tried
before the Centumviri, a spear was placed in front of the tribunal.
(17) If the property was of such a nature that it could not be brought
or led into court without inconvenience, as for instance, if it consisted of a
column, or a drove of cattle of any kind, a certain portion was brought in, and
then the claim was made for that portion just as if all of it was present.
Therefore, if the property in dispute consisted of a flock of sheep or goats, a
single sheep or goat was brought into court, or even a single tuft of wool was
produced; or if it consisted of a ship, or a column, a small part was broken
off; and, in like manner, if a tract of land or a building, or an estate was
the subject of controversy, a small part was brought in, and a claim was made
for it in the same manner as if all the property was there; as, for instance, a
clod was taken from the land, or a tile was taken from the building;
and if the dispute was with reference to an estate, in like manner the
property itself, or some part of it was produced in court . . .
(17a) . . . . For they observed the same time and the same
manner in appointing a judge, and agreed upon a day when they would be ready to
receive the judge, for to "agree upon" meant originally "to notify".
(18) Therefore, this action was very properly styled a notification, for
the plaintiff was accustomed to notify his adversary to appear before the court
on the thirtieth day to receive a judge. At present, however, we do not
properly call a suit of this kind by which we institute proceedings to have
property conveyed to us a personal action, for now no notice is given for this
(19) This form of judicial procedure was established by the Lex Silia
and the Lex Calpurnia; by the Lex Silia, to receive a certain
sum of money, and by the Lex Calpurnia, to recover any other property
which was certain.
(20) It has frequently been asked why this action was required when we
could either by Sacramentum or Judicis Postulatio, obtain the
transfer of property to which we are entitled.
(21) The proceeding of Manus Injectio was employed in certain
cases, as for instance, by the Law of the Twelve Tables, when judgment had been
obtained against a debtor. This was as follows: the party who brought the suit
said, "As judgment has been rendered against you, or you have been condemned to
pay me ten thousand sesterces, and you have not paid them, for this reason I
lay my hands upon you, as being indebted to me under the judgment for ten
thousand sesterces"; and at the same time he seized him by some part of the
body, and the debtor was not permitted to resist, or to protect himself by law,
but he appointed a defender, who conducted the case for him, or, if he did not
do so, he was taken to his house by the plaintiff and placed in chains.
(22) Subsequently, certain laws in some other cases, permitted the
arrest of debtors against whom judgment had been rendered; as the Lex
Publilia against a party for whom his sponsor had paid the debt, if, within
the next six months from the time when it was paid, he had not indemnified him;
likewise, the Lex Furia de Sponsu against one who had collected from his
sponsor more than his proportionate share; and finally, many other laws granted
proceedings of this kind in numerous instances.
(23) Other enactments provided that, on certain grounds, proceedings
could be instituted by the imposition of hands; but this was the simple act,
and not authorized in the case of debtors against whom judgment had been
rendered; for instance, the Lex Furia Testamentaria permitted this to be
done against a party who, as a legatee or the recipient of a donation mortis
causa, had received more than a thousand asses, when he was not excepted
under this law, and was entitled to receive more; also the Lex Marcia
against money-lenders, so that if they collected interest, they could be
compelled by this proceeding to refund it.
 Original manuscript illegible.
(24) By these laws and others similar to them, the defendant was
permitted to resist arrest, and take legal measures to defend himself, for the
plaintiff in this form of judicial procedure was not entitled to add the words,
"On account of a judgment rendered"; but after having stated his cause of
action, said: "For this reason I lay hands upon you"; just as he in whose favor
proceedings were instituted on account of a judgment, after having stated his
cause of action, said: "I arrest you on account of the judgment which has been
rendered against you." It has not escaped my notice that in proceedings under
the Lex Furia Testamentaria the words, "On account of the judgment
rendered against you," were inserted, although they do not appear in the law
itself; which seems to have been done without any reason.
(25) Afterwards, however, by the Lex Vallia all other defendants,
except judgment debtors and principals whose debts had been paid by their
sureties, were permitted to resist arrest, and avail themselves of the law for
their defence, when this proceeding was instituted against them. Therefore, the
party against whom judgment was rendered, and one whose debt had been paid by
his surety were, even after this law, required to appoint a defender; and if
they did not do so, were taken to the house of their creditor; and this rule
was observed as long as the ancient forms of procedure were employed. Hence, in
our times, anyone against whom proceedings have been brought in an action on
judgment or to recover the amount of the debt paid by a surety is compelled to
furnish security to satisfy the claim.
(26) Pignoris Capio was employed in some instances through
custom, and in others by virtue of law.
(27) It was introduced through custom into military affairs; for a
soldier was entitled to employ this proceeding against the paymaster for his
pay, if he did not give it, which compensation was designated æs
militare, and he could also distrain for money for the purpose of
purchasing a horse, which was called æs equestre, as well
as for money with which to purchase barley for his horse which was called
(28) The detention of property in this manner was also legally
authorized, for instance, by the Law of the Twelve Tables against a party who
bought a victim for sacrifice and did not pay for it; and likewise against one
who did not pay the hire of a beast of burden which he had leased for the
purpose of raising money to meet the expenses of a festival, that is to say, of
a sacrifice. In like manner, the right to distrain was granted by the law of
Censors to the farmers of the revenue of the Roman people, against persons who
owed taxes under any law.
(29) In all these instances the property was seized by the employment of
certain words; and, on this account, it was held by most authorities that this
proceeding was also a form of statute process.
Others, however, were of the contrary opinion; first, because it took
place out of court, that is to say, not in presence of the Prætor, and
usually also during the absence of the adverse party; while, on the other hand,
other actions could not be made use of by any one except in the presence of
both the Prætor, and the adverse party, and besides property could not be
distrained on an unlawful day, that is to say, on one when it was not permitted
to act under the law.
(30) All these forms of judicial procedure, however, gradually became
unpopular on account of the extreme subtlety of the ancient legal authorities,
so that the result was that anyone who committed the slightest error lost his
case. Hence, by the Lex Æbutia and the two Leges Julia,
proceedings under this law were abolished, and another form was substituted for
them; so that at present in litigation we make use of written instructions,
that is to say, formulas, for that purpose.
(31) In only two instances was permission granted to act under the
ancient procedure, that is to say, those of threatened injury, and those before
the Centumviral Tribunal. When application is made to the Centumviri,
proceedings are first instituted by the deposit of forfeits before the Urban or
the Foreign Prætor; but in the case of threatened injury, no one wishes
to employ the ancient procedure, but prefers to bind his adversary by a
stipulation provided for in the Edict; by which means his rights are more
conveniently and thoroughly protected. By the seizure of property as security
for debt . . . . it is apparent.
(32) On the other hand, in the formula provided for the farmer of the
revenue a fiction is inserted, ordering that the debtor be condemned to pay the
same amount of money which he would have been compelled to pay in order to
release his property, if it had been seized as security for the debt.
(33) No formula, however, is based on a fiction in a personal action for
recovery; for whether we bring suit for a sum of money, or for any certain
article of property as being due, we assert that the very thing itself should
be transferred to us, and we do not add any fiction for the purpose of
establishing the claim. Therefore, we understand these formulas to be those by
which we allege that a definite sum of money, or certain specified property,
should be transferred to us, and that the claim is valid by its own force and
power. Actions of loan for use, trust, business transacted, as well as
innumerable others are of the same nature.
(34) We make use of other fictions in certain formulas, for instance,
when a party who claims possession of the property of an estate brings an
action as a fictitious heir; for as he succeeds to the deceased by the
prætorian, and not by the Civil Law, he is not entitled to a direct
action, and cannot allege that what belongs to the deceased is his; nor can he
demand that what was due to the latter should be paid to him; and therefore,
under the fiction that he is the heir, he asserts his claim as follows: "Let
So-and-So be judge. If Aulus Agerius" (that is to say, the plaintiff, himself)
"should be the heir of Lucius Titius, and it is found that the land in question
ought to belong to him by quiritarian right;" or if, in the case of a debt, a
similar fiction having been employed by the party, as heir, there is added: "If
it should appear that Numerius Negidius should pay to Aulus Agerius ten
 Original manuscript illegible.
(35) Likewise, the purchaser of the property of a bankrupt estate may
proceed under the fiction that he is the heir, and sometimes he can do so in a
different way; for in his statement of the claim he may mention the person
whose property he purchased and himself in the condemnation; that is to say,
that his adversary may be condemned to pay him on this account what belonged to
the former or was due to him. This species of proceeding is called Rutilian,
because it was devised by the Prætor Publius Rutilius, who is said to
have also introduced the sale of bankrupt estates. The kind of action mentioned
above, by which the purchaser of the property of an insolvent estate pretends
to be the heir, is called Servian.
(36) Likewise, there is a pretended usucaption in the action which is
styled Publician. This action is granted to a party who claims property which
has been delivered to him for some legal reason, and of which he lost
possession before obtaining a title to it by usucaption; for because he cannot
claim it as his under quiritarian right, the fiction is employed that he has
acquired it by usucaption and hence, as it were, to have become its owner, by
quiritarian right; for instance, as follows: "Let So-and-So be judge. If the
slave whom Aulus Agerius purchased and who was delivered to him remained in his
possession for a year, the said slave would then have lawfully belonged to the
said Aulus Agerius by quiritarian right, etc."
(37) Likewise, Roman citizenship is feigned in the case of an alien, if
he either sues or is sued in an action established by our laws; provided it is
just that the said action may be extended to aliens. For example, if an alien
sues or is sued for theft, or for aiding and abetting theft, the following
formula should be employed, "Let So-and-So be judge. If it appears that a gold
cup was stolen from Lucius Titius by Dio the son of Hermæus, or with his
aid and advice for which he would have been compelled to make restitution for
theft if he had been a Roman citizen, then let the said Dio, the son of
Hermæus be convicted, etc."
Again, if an alien brings the action of theft, or if, under the Lex
Aquilia he sues or is sued for damage to property, he can avail himself of
the fiction of Roman citizenship, and judgment can be rendered either for or
(38) Moreover, sometimes we may feign that our adversary has not
suffered a loss of civil rights; for if a man or a woman has become liable to
us under a contract, and he or she has afterwards undergone forfeiture of civil
rights — as, for instance, the woman by coemption, and the man by
arrogation — he or she ceases to be indebted to us under the Civil Law,
and we cannot directly claim that either is bound to transfer anything to us.
In order, however, that the party may not have power to annul our rights, an
equitable action is granted against him or her by a fictitious rescission of
the loss of civil rights; that is to say, one in which it is feigned that the
party had not suffered a disability of this kind.
(39) The divisions of the Formula are the following, the
Demonstratio, the Intentio, the Adjudicatio, and the
(40) The Demonstratio is that part of the Formula which
designates the ground on which the case is brought, that is to say, the
following part of the same: "For the reason that Aulus Agerius sold a slave to
Numerius Negidius"; or "For the reason that Aulus Agerius left a slave in the
keeping of Numerius Negidius".
(41) The Intentio is that part of the Formula in which the
plaintiff states his claim; for instance, as follows: "If it appears that
Numerius Negidius should pay ten thousand sesterces to Aulus Agerius"; or,
"Whatever it appears that Numerius Negidius should pay to, or do for, Aulus
Agerius"; likewise, "If it appears that the slave in dispute is the property of
Aulus Agerius, by quiritarian right".
(42) Adjudicatio is that part of the Formula by which the judge
is permitted to assign the property in question to one of the litigants; as for
instance, where an action for the partition of an estate is brought between
co-heirs; one for the division of common property between partners; one for the
establishment of boundaries between neighbors. In cases of this kind, the
following form is employed, namely: "Judge, award to Titius the amount to which
he is entitled."
(43) Condemnatio is that part of the Formula by which authority
is granted to the judge to condemn or discharge the defendant; for instance, as
follows: "Judge, condemn Numerius Negidius to pay ten thousand sesterces to
Aulus Agerius, and if the claim should not be proved, discharge him." Likewise,
as follows: "Judge, condemn Numerius Negidius to pay to Aulus Agerius not more
than ten thousand sesterces, and if the claim should not be proved, let him be
discharged," or, as follows: "Judge, let Numerius Negidius be condemned to pay
to Aulus Agerius"; etc., without adding the clause, "Not more than ten thousand
(44) All these divisions are not found together but in every formula;
where some of them appear, others do not, and in fact, sometimes the
Intentio exists alone, as in prejudicial formulas, in which the question
is whether a man is a freedman, or what the amount of a dowry may be, and
numerous others. The Demonstratio. the Adjudicatio, and the
Condemnatio are never found alone; for the Demonstratio without
the Intentio and the Condemnatio, is of no effect; and, in like
manner, the Condemnatio or the Adjudicatio has no force without
the Intentio, and for this reason they are never found alone.
(45) We say that the formulas in which a question of right is involved,
are founded in law; as for instance, when we assert that any property belongs
to us by quiritarian right, or that the adverse party is obliged to pay us
something, or make good a loss to us as a thief, for these formulas and others
are those in which the claim is based on the Civil Law.
(46) We say that other formulas are based upon questions of fact, that
is, where a claim of this kind is not made with reference to them; but, where a
fact is stated in the beginning of a formula, words are added by which
authority is given to the judge to condemn or discharge the defendant. This
kind of a formula is employed by a patron against his freedman, when the latter
brings him into court contrary to the Edict of the Prætor; for then it is
in the following terms: "Let Soand-So be judges. If it is established that
such-and-such a patron was brought into court by such-and-such a freedman,
contrary to the edict of such-and-such a Prætor — judges, condemn
the said freedman to pay to the said patron the sum of ten thousand sesterces.
If the case should not be proved, discharge him."
The other formulas mentioned in the Edict with reference to the
summoning of parties into court, refer to matters of fact; as for instance,
against a person who, having been summoned into court, neither appeared nor
appointed anyone to defend him; and also against one who rescued by force a
party who was summoned to appear; and, in conclusion, innumerable other
formulas of this description are set forth in the Register of the
(47) In some instances, however, the Prætor permits formulas
having reference to either law or fact to be employed; for example, in actions
of deposit, and loan for use.
The following formula is one of law. "Let So-and-So be judge. Whereas
Aulus Agerius deposited a silver table with Numerius Negidius, for which this
action is brought, whatever Numerius Negidius is obliged to pay to, or do for,
Aulus Agerius, in good faith, on this account, do you, judge, condemn Numerius
Negidius to pay to, or do for Aulus Agerius, unless he makes restitution; and,
if the case should not be proved, let him be discharged." The following
formula: "Let Soand-So be judge. If it appears that Aulus Agerius deposited a
silver table with Numerius Negidius, and, through the fraud of the said
Numerius Negidius, the said table has not been restored to the said Aulus
Agerius, do you, judge, condemn Numerius Negidius to pay to Aulus Agerius a sum
of money equal to the value of the property, and if the case is not proved let
him be discharged"; is one of fact. Similar formulas are employed in an action
of loan for use.
(48) The condemnation clause of all formulas has reference to the
pecuniary value of the property. Therefore if we claim any corporeal property,
for instance, land, a slave, a garment, or gold or silver, the judge condemns
the party against whom the suit was brought not to deliver the very thing
itself, as was formerly the practice, but its estimated value in money.
(49) The judgment clause of the formula either mentions a certain, or an
uncertain sum of money.
(50) The mention of a certain sum of money, for example, appears in the
formula by which we demand the payment of a designated amount; for then the
last part of the formula is as follows: "Judge, condemn Numerius Negidius to
pay ten thousand sesterces to Aulus Agerius; and if the case is not proved,
(51) A judgment for an uncertain sum of money has a two-fold
signification. In the first instance, it is preceded by some restriction called
a limiting clause, as, for instance, where we bring an action for an uncertain
amount; for then in the last part of the formula the following words are
employed: "Judge, condemn Numerius Negidius to pay not more than ten thousand
sesterces to Aulus Agerius; and if the case should not be proved discharge
him." If, however, the amount is uncertain, and there is no limit; for
instance, where we bring suit for property belonging to us, which is in the
possession of another, that is to say, if we institute proceedings for the
production of property in court, the following words are used: "Judge, condemn
Numerius Negidius to pay to Aulus Agerius a sum of money equal to the value of
the property; and if the case is not proved let him be discharged."
(52) What then is the rule? If the judge decides against the defendant,
he must require him to pay a certain sum of money even though no specified
amount may have been mentioned in the judgment.
The judge should also be careful that, when a certain sum is stated in
the judgment, not to require the defendant to pay a larger or a smaller amount,
otherwise he makes the case his own. Again, if a limiting clause was inserted,
he must take care not to condemn the defendant in a larger amount than is
mentioned in said clause, otherwise, he will, in like manner, make the case his
own; he is, however, permitted to render a judgment against him for a smaller
sum; and even if there should be no limiting clause, he can condemn him in any
amount that he may wish.
(52a) For the reason that the party who accepts the formula should state
the amount which he claims, the judge is not required to render a decree for a
larger sum; but the plaintiff cannot make use of the same formula a second
time, and he should state in the condemnation the certain sum of money which he
claims, in order that he may not recover less than he desires.
(53) If anyone claims more than he is entitled to he will lose his case,
that is to say, he will lose his property, and he cannot obtain complete
restitution through the Prætor; except in certain instances in which the
Prætor does not permit all plaintiffs to suffer loss on account of their
own errors; for he always comes to the relief of minors under the age of
twenty-five years, as in other cases.
(53a) A plaintiff may demand more than he is entitled to in four ways;
in the amount of property, in time, in place, and in the statement of his cause
of action. He does so in the amount of property, if he demands twenty thousand
sesterces, instead of ten thousand which are due to him; or, if he demands as
his own, either the whole, or the greater part of the property, when he is only
a joint owner.
He demands more in point of time, if he asks for payment before the debt
He demands more in place, for instance, where payment is promised in a
certain place, and he demands that it be made somewhere else, which was not
mentioned in the contract; for example, if I stipulate with you as follows: "Do
you solemnly agree to pay me ten thousand sesterces at Ephesus?" and afterwards
bring suit at Rome under the formula, "If it appears by the stipulation that
you are obliged to pay me ten thousand sesterces," I am understood to claim
more than I am entitled to, for the reason that in this way I subject the
promisor to more inconvenience than he would suffer if he paid at Ephesus. I
can still absolutely demand payment at Ephesus, for this is not an additional
(53b) He demands too much in his statement of his cause of action, if he
deprives the debtor of a choice which he had by the terms of the contract, for
example, if anyone stipulates as follows: "Do you solemnly agree to either pay
ten thousand sesterces, or deliver the slave Stichus?" as then he can demand
either the one or the other. For although he may demand what is of lesser
value, he still is considered to claim too much, because his adversary may
sometimes more conveniently deliver what is not demanded.
Likewise, if anyone stipulates for a genus, and afterwards claims a
species; for instance, if he stipulates for purple, in general terms, and
afterwards expressly demands Tyrian purple, even though he may demand that of
the least value the same rule will apply, for the reason which we have just
The same rule also applies where anyone stipulates for a slave in
general terms, and afterwards demands a particular slave, for example, Stichus;
although he may be almost worthless. Therefore, the phraseology of the formula
designating the claim must exactly coincide with what was set forth in the
(54) It is perfectly evident that too large an amount cannot be claimed
by an uncertain formula, because as a definite amount is not demanded, but it
is merely stated that the adversary shall give, or do only what he is required,
no one can claim more. The same principle applies where a real action is
granted to recover an uncertain share of property; as for example, when a
plaintiff demands that there shall be transferred to him the share of the land
in question to which he is entitled, which kind of action is granted in very
(55) It is also evident that if anyone claims one thing instead of
another, he will run no risk, as he can bring another suit, because he is not
considered to have previously done anything which was legal; for instance,
where a party who had a right to claim the slave Stichus, demands Eros; or
where anyone states that he is entitled to property under a will, when in fact
he is entitled to it under the terms of a stipulation; or where an agent or
attorney claims that property should be transferred to him, instead of to his
(56) To claim more than one is entitled to, as we have stated above,
involves risk; but anyone is permitted to claim less. He is not permitted,
however, to bring suit to recover the remainder in the jurisdiction of the same
Prætor, for anyone who does so, is barred by the exception styled the
exception against division of actions.
(57) If more is claimed in the condemnation than is proper, the
plaintiff runs no risk; but as the defendant has made use of a formula which
was unjust, he may obtain complete restitution, in order that the amount of the
judgment may be reduced. If, however, less be set out in the condemnation than
the plaintiff has a right to, he only obtains the amount which he sued for, as
the entire claim was brought into court, and he will be limited by the amount
stated in the condemnation which the judge cannot exceed. In a case of this
kind the Prætor does not grant complete restitution, for he more readily
comes to the relief of defendants than plaintiffs. We, however, except minors
under the age of twenty-five years, for the Prætor always comes to the
relief of such persons, where loss of property has been sustained by them.
(58) Where more or less than is due is set forth in the
Demonstratio, no case is brought into court, and hence the matter
remains unaltered; and this is what is meant when it is said that a right is
not extinguished by a false statement of the cause of action.
(59) Still, there are some authorities, who hold that less than is due
may be properly included in the Demonstratio; so that a party who has
purchased both Stichus and Eros, is considered to have properly stated his
cause of action as follows: "Whereas I purchased the slave Eros from you"; and,
if he desires to do so, he may bring an action for the recovery of Stichus by
means of another formula; because it is true that anyone who purchased both
slaves also purchased each of them; and this was especially the opinion of
Labeo. If, however, he who purchased one of them, should bring an action to
recover both, he makes a full statement of his cause of action. The same rule
is applicable to other actions, for instance, to those of Loan for Use, and
(60) We have found it stated in certain writers that, in the action of
Deposit — and indeed in all others in which, the condemned party is
branded with infamy — anyone who demands more than he is entitled to in
the statement of his cause of action, will lose his case; for instance, where
he who had deposited one article, alleges in his statement that he had
deposited two; or where he who was struck on the cheek with the fist, states in
an action for injury sustained that he was also struck in some other part of
the body. Let us carefully examine whether we should hold this opinion to be
It is true that there are two formulas employed in the Action of
Deposit, one based upon the law and the other upon fact, as we mentioned above.
The one based on the law, in the first place, designates the cause of action in
the manner in which this is usually done, and then sets out the claim as being
based upon the law in the following terms: "Whatever the defendant should, on
this account, give or perform." But in the formula based upon fact, the cause
of action is set forth in the beginning without any previous statement, as
follows, "If it appears that So-and-So deposited such-and-such property with
Soand-So"; we should entertain no doubt that if anyone in a formula based on
fact alleges that he has deposited more articles than was actually the case he
will lose his suit, because he is considered to have included in his claim more
than he was entitled to. . . .
(61) Set-offs frequently take place in such a way that each party
receives less than he would otherwise be entitled to. For, as in bona
fide actions, the judge is considered to have full power to estimate how
much should justly and properly be paid to the plaintiff; on the other
 Original manuscript illegible.
hand, he also has authority to determine how much the plaintiff should
pay in the same case, and to render judgment against the defendant for the
(62) Bona fide actions are such as the following: purchase and
sale; leasing and hiring; the transaction of the business of others without
authority; deposit; trust; partnership; guardianship; dotal property.
(63) The judge also has a right not to consider any set-off, at all, as
he is not expressly directed to do so by the terms of the formula; but, for the
reason that this seems to be proper in a bona fide action, it is
therefore held to be part of his duty.
(64) The case of an action brought by a banker is different, for he is
compelled to take account of a set-off, and to mention it in his statement; and
to such an extent is this true, that he must make allowance for it in the first
place, and only demand that the remainder shall be paid to him. For example, if
he owes ten thousand sesterces to Titius, and Titius owes him twenty thousand,
he should state his claim as follows: "If it appears that Titius owes him ten
thousand sesterces more than he owes Titius."
(65) Again, the purchaser of the estate of a bankrupt is directed to
make a deduction when he brings his action, so that his adversary will only
have judgment rendered against him for the balance which remains after having
deducted what the purchaser of the estate owes the defendant on account of the
(66) Between the set-off which is made against the claim of the banker,
and the deduction to be taken from the claim of the purchaser of a bankrupt
estate, there is this difference, namely: that property of the same kind and
nature is only included in the set-off; as for instance, money is set-off
against money; wheat against wheat; wine against wine; and it is even held by
some authorities that wine cannot be set off against wine, or wheat against
wheat, unless it is of the same nature and quality. In making the deduction,
however, property is included which is not of the same kind. Hence, if the
purchaser of the estate of a bankrupt brings an action for money due the
latter, and he himself owes a certain quantity of grain or wine, after it has
been deducted, suit shall be brought only for the remainder, whatever it may
(67) Deduction is also made of what will be due hereafter at a certain
time, but set-off only takes place where the debt is already due.
(68) Moreover, the amount of the set-off is inserted in the statement of
the claim, the result of which is that if the banker demands in the set-off a
single sesterce more than he is entitled to, he will lose his case, and
therefore his property as well. The deduction, however, is inserted in the
judgment, in which place the claimant does not run any risk, for demanding too
much; especially when the purchaser of a bankrupt estate brings a suit in
which, although he makes a claim for a certain amount of money, he,
nevertheless, sets out an uncertain amount in the condemnation.
(69) For the reason that we have previously mentioned the action brought
against the peculium of sons under parental control and slaves, it is
necessary for us to more clearly explain this, as well as the other actions,
which are ordinarily brought against parents and masters, on account of their
sons and slaves.
(70) In the first place, if a transaction was entered into with a son or
a slave, by order of his father or his master, the Prætor will grant an
action for the entire amount against the father or the master; and this is
proper, because anyone who enters into a transaction of this kind takes into
consideration their responsibility rather than that of the son, or the
(71) For the same reason the Prætor grants two other actions, the
Actio Exercitoria, and the Actio Institoria. The first will lie
where the father or the master places his son or his slave in charge of a ship,
and any business on this account is transacted by the party in charge. For
whenever a debt has been contracted with the consent of the father or master,
it appears to be perfectly just that an action for the entire amount should be
granted against him. And even though a person appoints as the master of a ship
either a slave belonging to another, or a freeman, the prætorian action
will, nevertheless, be granted against him. This action is called
"Exercitoria," for the reason that the party who obtains the daily
returns from the ship is called "Exercitor."
The Institorial Formula is employed when anyone places his son or slave,
or the slave of another or a freeman, in charge of his shop, or of any kind of
business whatsoever; and where the party placed in charge of the same contracts
any debt which has reference to the said business. It is called
"Institoria," for the reason that the party placed in charge of a shop
is called "Institor"; and this formula is made use of for the collection
of the entire amount which is due.
(72) In addition to these, the Actio Tributoria has been
established against a father or a master, when his son or slave transacts some
business with his peculium, with the knowledge of his father or his
master. For if any contract having reference to said property should be made
with either of them, the Prætor directs that whatever was invested in the
said business, or any profits derived from the same, shall be distributed
between the father or master, if anything is due to them, and among any other
creditors, in proportion to their respective claims; and for the reason that he
permits the distribution to be made to the father, or the master, if any
creditor should complain of having received less than he was entitled to, he
enables him to bring this action which is called "Tributoria."
(73) Moreover, the action De Peculio was introduced where any
advantage accrued to the father, or the master; and although the business may
have been transacted without the consent of either of them, still, whatever was
expended for the benefit of their property should be paid in full; or if it was
not expended for that purpose, payment should be made to the amount of the
value of the peculium. It is supposed to have been expended for the
benefit of the master's property
if the slave should have disbursed anything necessarily for the
advantage of his master; for instance, if he should pay borrowed money to his
creditors; or should prop up buildings which are about to fall; or should
purchase grain for his household; or should buy a tract of land, or any other
property which it was necessary to acquire. Therefore, for example, if out of
ten sesterces which your slave borrowed from Titius, he should pay five to your
creditor, and should expend the remaining five in any way whatsoever, you ought
to have judgment rendered against you for five, and for the other five to the
amount of the peculium.
From this it is apparent that if all of the ten sesterces were employed
for the benefit of your property, Titius can recover the entire ten; for,
although there is but one action having reference to the peculium to
recover what was used for the benefit of the property of the father, or the
master, still, he has the right to two judgments; and, therefore, the judge
before whom the action is brought, should investigate in the first place,
whether the expenditure was made for the benefit of the property of the father,
or master; and should not pass to the estimation of amount of the
peculium, unless either nothing was understood to have been expended for
the benefit of the property of the father, or master, or that not all of it was
so employed; as, when the estimate is made of the amount of the
peculium, that should previously be deducted which is due to the father
or the master, by the son, or the slave who is under his control; and the
remainder shall only be considered as peculium. Sometimes, however, the
amount due by the son, or the slave, as aforesaid, is not deducted from the
peculium; for instance, if he who owes it himself forms a part of the
(74) But there is no doubt that either the Actio Exercitoria, or
the Actio Institoria will lie in favor of anyone who has entered into a
contract with a son or a slave, by the order of his father or master; and that
he can bring the action of peculium, or that based on the employment of
property for the benefit of another. No one, however, when he could undoubtedly
obtain the whole amount of the debt by means of either of the above mentioned
actions, would be so foolish as to take the trouble to prove that the party
with whom he contracted had a peculium, and that his claim could be
satisfied out of it; or that the money which he demanded had been employed for
the benefit of the father, or master.
(74a) Again, he who is entitled to bring the Actio Tributoria,
can also bring the Actio de Peculio, as well as the one for the
recovery of money employed for the benefit of another: and it will generally be
more advantageous for him to make use of this action than of the Actio
Tributoria, for in the latter only the account of the peculium is
considered which the son, or the slave made use of in the business in which he
was engaged, and the profits of the same; in the Actio de Peculio,
however, the entire peculium is involved; and anyone may transact
business with a third or a fourth of it, or even with a smaller portion, and
have the greater part of his peculium otherwise invested. This is even
more true, and he should certainly have recourse to this action if it can be
proved that what the party who contracted with the son or the slave gave was
used for the benefit of the father or the master; for, as we stated above, the
same formula is employed both in the action having reference to the
peculium, and in the one to recover property used for the benefit of
(75) Noxal actions are granted on account of offences committed by sons
under paternal control, or by slaves; as, for instance, where they commit theft
or injury; so that the father or master is permitted either to pay the damages
assessed, or to surrender the culprit by way of reparation; for it would be
unjust for the misconduct of a son or a slave to cause any loss to his parent,
or his master, except by the forfeiture of the body of the son or the
(76) Moreover, noxal actions were established either by law or by the
Edict of the Prætor; by law, for instance, in the action of theft under
the provision of the Twelve Tables; the action for wrongful damage by the
Lex Aquilia; the action for injury, and that for property taken with
violence by the Edict of the Prætor.
(77) All noxal actions follow the person of the culprit. Hence, if your
son, or your slave commits a wrongful act while he is under your control, an
action will lie against you; if he conies under the power of another, an action
can be brought against the latter; if he becomes his own master, a direct
action can be brought against him, and his surrender by way of reparation is
On the other hand, a direct action may become a noxal one; for if the
head of a household commits a wrongful act and he gives himself in arrogation
to you, or becomes your slave; what we stated in the First Commentary might
happen in certain cases takes place; that is to say, a noxal action can be
brought against you, when, formerly, a direct action would lie against the
(78) If, however, a son commits a wrongful act against his father, or a
slave against his master, no right of action will arise; for no obligation can,
under any circumstances, be created between me and one who is under my control.
Hence, although he may pass under the control of another, or becomes his own
master, an action will lie neither against himself, nor against the party under
whose control he now is. Therefore, the question arises where the son or the
slave of another commits a wrongful act against me, and subsequently is
subjected to my authority; whether, on this account the action is extinguished,
or remains in suspense. Our preceptors hold that it is extinguished, because
conditions have become such that it cannot be brought; and, therefore, if the
party should be freed from my control, I cannot bring suit.
The authorities of the other school are of the opinion that as long as
he is in my power, the action remains in suspense, for the reason that I cannot
sue myself; but that when he is no longer subject to my authority the action is
(79) Moreover, when a son under paternal control is transferred by
mancipation, on account of some wrongful act which he has committed, the
authorities of the other school think that he should be sold three times,
because it is provided by the Law of the Twelve Tables that a son cannot be
released from the authority of his father unless he has been three times sold.
Sabinus, Cassius, and the other authorities of our school, however, hold that
one sale is sufficient, and that the three mentioned by the Law of the Twelve
Tables only refer to voluntary sales.
(80) So much with reference to those persons who are under the control
of their fathers and masters whether the controversy relates to their
contracts, or their crimes. But with reference to such persons as are in hand,
or are liable to mancipation, the law is said to be that when an action founded
on contract is brought against them, unless they are defended against the
entire amount by the party to whose authority they are subject, any property
which would be theirs, if they had not been under control, shall be sold. When,
however, their forfeiture of civil rights having been rescinded, an action
based on the judicial power of the magistrate is brought against them and is
not defended, the woman herself can be sued, while she is in the hand of her
husband, because, in this instance the authority of the guardian is not
necessary. . . .
(81) What course then should be pursued? Although we stated that it was
not permitted to surrender dead persons by way of reparation for the commission
of a wrongful act; still, if anyone should surrender the body of such a person
who had died, he will (be) legally released from liability.
(82) In the next place we should note that we can either sue in our own
names, or in that of another, as for instance, our agent, attorney, guardian,
or curator, while formerly, when the legis actionis were employed, a man
could not bring an action in the name of another, except in certain cases.
(83) Moreover, the attorney in an action is appointed by prescribed
forms of words in the presence of the adverse party. The plaintiff appoints an
attorney as follows: "Whereas, I am bringing an action against you (for
example) to recover a certain tract of land; I appoint Lucius Titius my
attorney against you in this matter." The adverse party makes his appointment
as follows: "Whereas, you have brought an action against me to recover a tract
of land, I appoint Publius Mævius my attorney against you in this
matter." The plaintiff may make use of the following words: "Whereas, I desire
to bring an action against you, I appoint Lucius Titius my attorney in this
matter." The defendant says: "Whereas, you desire to bring an action against
me, I appoint Publius Mævius my attorney in this matter."
It makes no difference whether the attorney appointed is present, or
absent; but if an absent person is appointed, he will only become the attorney
if he accepts and undertakes the duties of the office.
(84) An agent, however, is substituted in the case without the use of
any special forms of words, merely by mandate alone, and his appointment can be
made during the absence, and without the knowledge of the adverse party.
Moreover, there are some authorities who hold that one can become an agent,
without having been directed to do so,
 Original manuscript illegible.
provided he attends to the business in good faith, and gives security
that his principal will ratify his acts; although he to whom the mandate was
given is generally required to furnish security, because the mandate is
frequently concealed in the beginning of the proceedings and is afterwards
disclosed in court.
(85) We have stated in the First Commentary in what manner guardians and
curators are appointed.
(86) He who brings an action in the name of another makes the claim in
the name of his principal, and mentions his own name in the condemnation. If,
for instance, Lucius Titius brings suit for Publius Mævius, the formula
is in the following words: "If it appears that Numerius Negidius should pay to
Publius Mævius ten thousand sesterces, Judge, condemn Numerius Negidius
to pay ten thousand sesterces to Lucius Titius, and if his indebtedness should
not be established discharge him from liability." Again, in a real action, the
claim is made that the property belongs to Publius Mævius by quiritarian
right, and the representative is mentioned in the condemnation.
(87) When anyone intervenes in behalf of the party against whom the
action is brought, and the claim is made that "the principal should make
payment," the condemnation is stated in the name of the representative of the
party sued. In the case of a real action, however, the name of the party
defendant is not mentioned in the claim, either when he appears in person, or
by a representative; for the claim merely states that the property in question
belongs to the plaintiff.
(88) Let us now consider under what circumstances either the defendant
or the plaintiff may be compelled to give security.
(89) Hence, for example, if I bring a real action against you, you
should furnish me security, for it appears to be but just as you are permitted
to retain possession of the property, and it is doubtful whether it belongs to
you, or not, that you should give security that if you are defeated, and do not
restore the property itself, or refuse to pay its value, I may have the power
to proceed against you, or your sponsors.
(90) There is all the more reason that you should furnish me security,
if you are acting as the representative of another in the case.
(91) Moreover, a real action is of a twofold nature; for it is either
brought by a formula stating the claim, or by one based on a solemn engagement;
and, if it is made in the manner first mentioned, the stipulation called
"security for the payment of a judgment" will apply; but if it is based on a
solemn engagement, that form of stipulation styled "security for the property
in dispute and the profits derived from the same," is the one made use of.
(92) The formula which states the claim contains the allegation of the
plaintiff that the property belongs to him.
(93) In the proceeding based upon a solemn engagement, we proceed as
follows, and we make this demand upon the adverse party:'"If the slave in
dispute is mine by quiritarian right, do you promise to pay me twenty-five
sesterces?" And then we state the formula by which we claim that the sum
mentioned in the promise should be paid to us; but we can only gain our case by
means of this formula if we prove that the property is ours.
(94) The sum mentioned in the promise is not exacted, for it is not
penal, but merely prejudicial, and is used only for the purpose of deciding the
right to the property; therefore even the party against whom the action is
brought does not make another stipulation with the plaintiff. Moreover, this
kind of a stipulation instead of security for the property in dispute and for
the profits of the same, was so called because it took the place of personal
sureties who formerly, when proceedings were instituted under the legis
actiones, were given by the party in possession to the plaintiff, for the
restoration of the property itself and the mesne profits of the same.
(95) When, however, the suit is brought before the Centumviri, we
do not demand the sum mentioned in the solemn engagement, by the formula, but
under the ancient form of procedure; for then we challenge the defendant by the
deposit, and the promise of a hundred and twenty-five sesterces is made by
virtue of the Lex . . . .
(96) If a party brings a real action in his own name, he does not
(97) And even if an action is brought by an agent, no security is
required from him, or his principal, for he has been substituted for his
principal by a prescribed and, as it were, solemn form of words; and he is very
properly considered to occupy the place of his principal.
(98) If, however, an agent brings the action, he is ordered to give
security that his principal will ratify his acts; for there is danger that,
otherwise, the principal might bring a second action with reference to the same
property, which danger does not exist where the suit was brought by an agent;
for the reason that anyone who sues by an agent has no greater right of action
than if he brought the suit himself.
(99) The terms of the Edict compel guardians and curators to furnish
security in the same way as agents; sometimes, however, they are not required
to do so.
(100) So much with reference to real actions. In the case of personal
actions, when inquiry is made now and when security should be furnished by the
plaintiff, we repeat what we have already said with reference to real
(101) But with respect to the party against whom the action is brought,
where anyone intervenes in his behalf, he must, by all means, furnish security,
for the reason that no one is understood to be a proper defender of another's
affairs without security. If the action is brought against an attorney, his
principal is required to furnish security, but if brought against an agent, the
latter must furnish it himself. The same rule applies to guardians and
(102) If, however, a party undertakes his own defence in a personal
action he usually gives security to pay the judgment, in certain
 Original manuscript illegible.
cases which are indicated by the Prætor. In these cases there are
two reasons why security is exacted; for this is either done on account of the
nature of the action, or because the character of the defendant is suspicious.
It is required on account of the nature of the action, for instance, where it
is one to compel the payment of a judgment, or to collect money expended for a
principal; or where the morals of a wife are involved. It is required on
account of the suspicious character of the defendant, where he has squandered
his property; or his creditors have obtained possession of it, or advertised it
for sale; or when proceedings have been instituted against an heir whom the
Prætor considers liable to suspicion.
(103) Actions are either founded upon law, or are derived from the
authority of a magistrate.
(104) Actions founded upon law are those which are brought in the City
of Rome, or within the first mile-stone from that city, between Roman citizens
before a single judge. Those brought under the Lex Julia Judiciaria
expire after the lapse of a year and six months, unless they have been
previously decided; and this is the reason why it is commonly stated that under
the Lex Julia a case dies after a year and six months have elapsed.
(105) Actions derived from the authority of a magistrate are those
brought before several judges, or before a single judge, if either the latter
or one of the litigants is an alien. These actions belong to the same class as
those which are brought beyond the first mile-stone from the City of Rome;
whether the parties litigant are Roman citizens or aliens. Cases of this kind
are said to be derived from the authority of the magistrate, for the reason
that the proceedings are only valid as long as he who directed them to be
instituted retains his office.
(106) Where an action is brought under the authority of a magistrate,
whether it is real or personal, or whether it was based upon a formula of fact,
or a statement of law, it is not by operation of law a bar to subsequent
proceedings having reference to the same matter, and therefore it is necessary
to plead an exception on the ground that a decision has already been rendered,
or that issue has been joined in the case.
(107) If, however, a personal action based on a legal statement has been
brought by the formula relating to claims under the Civil Law, an action cannot
subsequently be maintained with reference to the same matter by operation of
law, and for this reason an exception will be superfluous. If, however, a real
action, or an equitable personal action based upon fact, should be brought,
proceedings may nevertheless subsequently be instituted, by operation of law;
and on this account an exception on the ground that the question has already
been decided, or that issue has been joined, will be necessary.
(108) The rule was formerly different when the ancient method to
procedure was employed, for when proceedings concerning a matter had once been
instituted, no legal action could be taken with reference to it, nor was the
employment of exceptions in those times customary, as it is now.
(109) Moreover, an action may be founded upon law, and yet not be legal;
and, on the other hand, it may not be founded upon law, but still be legal. For
example, proceedings based upon the Lex Aquilia, Publilia, or
Furia, when instituted in the provinces, are derived from the authority
of the magistrate, and the rule is the same if we bring an action before
several judges, or before a single judge if one of the parties is an alien;
and, on the other hand, if an action in which all the parties are Roman
citizens is brought at Rome before a single judge, for the same cause for which
a right of action is granted to us by the Prætor, it will be legal.
(110) In this place we should note that those actions which are based
upon a statute or a decree of the Senate are usually granted by the
Prætor in perpetuity; but that those which are dependent upon the
jurisdiction of the Prætor himself are only granted within a year from
the time when the cause of action arose.
(111) Sometimes, however, he also grants such actions in perpetuity, as,
for instance, those in which the Civil Law is imitated; such as the actions
which he grants to the prætorian possessors of estates, and to other
persons who occupy the place of an heir. The action of manifest theft, although
it is derived from the jurisdiction of the Prætor himself, is granted
without limitation of time, and this is reasonable, as a pecuniary penalty has
been established instead of a capital one.
(112) All actions which lie against anyone, either by operation of law,
or because they are granted by the Prætor, do not also lie against his
heir, nor are usually granted by the Prætor; for this rule is so positive
that penal actions arising from criminal offences do not lie, and are not
usually granted against an heir; as, for instance, the action of theft, of the
robbery of property by violence, or of injury, or of unlawful damage.
Actions of this kind will, however, lie in favor of heirs, and will not
be refused them by the Prætor, with the exception of the action for
injury, and any other of the same description if it can be found.
(113) Sometimes, however, even an action based upon a contract will not
lie for or against an heir; since the heir of a joint stipulator has no right
of action, and the heir of a sponsor or guarantor is not liable.
(114) It remains for us to consider whether, if the party against whom
the action was brought before judgment had been rendered but after issue had
been joined, should satisfy the plaintiff, what course the judge should pursue;
whether he has authority to discharge him from liability, or whether he should
rather decide against him for the reason that at the time of the joinder of
issue he was in such a position that he should have been condemned. Our
preceptors think that he should be discharged, and that it makes no difference
what kind of a judgment is rendered; and this is the reason why it is commonly
said that it was the opinion of Sabinus and Cassius that a discharge from
liability could be granted in all actions.
The authorities of the other school agree in this point with reference
to bona fide actions; because in cases of this kind no restraint is
placed upon the judge; and their opinion is the same with reference to real
actions, for the reason that there is an express provision of this kind stated
in the terms of the formula, so that if the defendant should restore the
property he shall be discharged from liability. This, of course, applies where
the action was brought under the formula making the claim, in which the party
is sued in such a way that the property is dispute is demanded, and the words
above referred to are repeated in the beginning of the condemnation; for
sometimes . . . . personal actions of this kind are brought in
which it is not permitted ... .
(115) In the next place let us examine exceptions.
(116) Exceptions have been introduced for the purpose of defending those
against whom actions have been brought; for it often happens that a party is
liable by the Civil Law, when it would be unjust for a judgment to be rendered
For example, if I stipulate for a sum of money from you on account of my
having advanced it to you, when I never did so; as it is certain that I can
bring an action against you for the money and you would be obliged to pay it as
you are liable under the stipulation, but because it would be unjust for
judgment to be rendered against you on this account, it is settled that you can
defend yourself by the exception on the ground of fraud.
Likewise, if I make an informal agreement with you not to bring suit for
a debt which you owe me; I can nevertheless, bring an action against you for
the amount, and you will be obliged to pay me because the obligation is not
extinguished by a mere agreement, but if I should sue you, it is established
that you can bar me by an exception on the ground of an agreement entered
(117) Again, exceptions can be pleaded in actions which are not
personal; for example, if you compel me through fear, or induce me through
fraud, to sell any property to you, and then you sue me for the said property,
an exception will be granted me by which you will be barred, if I can prove
that you have been guilty of intimidation or fraud.
Likewise, if knowing that a case involving the title to a tract of land
was pending in court, and you buy the land from a party who is not in
possession, and claim it from one who is in possession, an exception can be
pleaded against you by which you will be absolutely barred.
 Original copy illegible.
 The exceptio, or exception, was the answer of the
defendant, and while by means of it he could traverse the plaintiff's
allegations, this was not usually done; but the practice was to set forth
circumstances, which, if they did not directly contravene the statements of the
plaintiff — and they even sometimes admitted them — rendered these of
no effect, by alleging bad faith, fraud, or flagrant injustice. Hence the
exceptio almost exactly coincided with the English plea of confession
and avoidance. — ed.
(118) The Prætor mentions other exceptions in his Edict, and he
grants still others after having taken cognizance of the case. All of them are
either based upon law or what is equivalent to it, or they are derived from the
jurisdiction of the Prætor.
(119) Moreover, all exceptions are drawn up in language which is the
opposite of what the party against whom the action is brought alleges. For if
the defendant states that the plaintiff is guilty of fraud, for the reason that
he brings suit for money which he never advanced, the exception is stated in
the following words: "If in this matter no fraud was, or is committed by Aulus
Likewise, if he states that the action was brought in opposition to an
agreement not to demand the money, it is set forth as follows: "If it was not
agreed between Aulus Agerius and Numerius Negidius that the said money should
not be demanded"; and similar terms are ordinarily employed in other cases.
Hence, because every exception is an objection made by the defendant but is
inserted in the formula in such a way as to render the condemnation
conditional, that is, the judge must not condemn the defendant unless no fraud
was committed by the plaintiff with reference to the matter in question, the
judge shall not render a decree against him if no informal
agreement was entered into not to bring suit to recover the
(120) Exceptions are said to be either peremptory or dilatory.
(121) Peremptory exceptions are those which are always valid, and cannot
be avoided; for instance, the exception on the ground of intimidation or fraud,
or of a violation of the law; or of a decree of the Senate; or because the case
has already been decided; or that issue has been joined; or that an informal
agreement was entered into "that suit should not, under any circumstances, be
brought to recover the money.
(122) Dilatory exceptions are such as are only valid for a time; for
instance, the exception based on an informal agreement that suit shall not be
brought within five years, and after that time has expired the exception cannot
be pleaded. The exception of a divided claim, or that of a residual claim, is
similar to this; for if anyone brings an action for a part of a debt, and
should then bring another for the remainder in the same prætorship, he
will be barred by the exception which is called that of a divided claim. In
like manner, if one who has several claims against the same person brings suit
on some of them, and defers doing so with reference to the remainder in order
that they may be brought before other judges, and he then brings an action
within the same prætorship, to recover those which he postponed, he will
be barred by the exception styled that of a residual claim.
(123) It should be observed, however, that the party against whom a
dilatory exception may be pleaded ought to defer his action, other-
Pactum conventum. An agreement of this kind was
not absolutely binding unless authorized by the Prætor who, however,
rarely refused his sanction. When this was obtained, no difference existed
between this kind of obligation and the contractus, or formal
convention, so far as their legal requirements were concerned. — ed.
wise, if he proceeds and the exception be pleaded against him, he will
lose his claim; as if issue had been joined, and his case has been lost by this
exception, he has no longer any power to sue after the time during which, if
matters had remained unchanged, he could have avoided the effect of the
(124) Exceptions are understood to be dilatory not only with reference
to time, but also with regard to persons; and to this class belong those which
are connected with the position of attorney; for instance, where a party who,
under the terms of the Edict, has no right to appoint an attorney acts through
one; or, if he has a right to appoint an attorney, but appoints one who is not
legally qualified to undertake the duties of the office. If the
exception to an attorney is pleaded, and the party himself is such a person
that he cannot appoint an attorney, he himself can bring the action; if,
however, the attorney is not permitted to assume the duties of the office, his
principal has the power to bring the suit, either by another attorney, or in
his own proper person, and he can, in either one of these ways, avoid the
exception; but if he should pay no attention to this disability, and conduct
the case by the attorney he will lose it.
(125) If the defendant, through mistake, should not avail himself of a
peremptory exception, he can obtain complete restitution, by adding the
exception to the pleadings; but if he should not make use of a dilatory
exception, it is a question whether he will be entitled to complete
(126) It sometimes happens that an exception which, at first sight,
appears to be just, will cause injury to the plaintiff, and when this is the
case an addition is required to the pleadings for the purpose of affording
protection to the plaintiff, which addition is called a Replicatio,
because by means of it the force of the exception is weakened and destroyed.
If, for example, I made an informal agreement with you not to sue you for money
which you owe me, and afterwards we entered into a contrary agreement, that is
to say, that I might be permitted to sue you, and then if I do sue you, you
plead the exception against me that judgment should only be rendered against
you where no agreement had been made that I should not bring suit for the
money, this exception on the ground of an informal agreement prejudices my
claim, as the first agreement still retains its force, even though we made a
contrary one subsequently; but because it is unjust for me to be barred by an
exception, a replication based on the subsequent agreement is granted me as
follows: "If no agreement was entered into afterwards that I might be permitted
to bring an action to recover the money."
(126a) Likewise, if a banker brings suit for the price of property sold
at auction, the exception may be pleaded against him that judgment is only to
be rendered against the purchaser where the property which he bought had been
delivered; and this is apparently a just exception. If, however, the condition
was imposed at the auction that the property should not be delivered to the
purchaser until he had paid the price of the same, the broker can make use of
the following rep-
lication: "Or if it was previously stated at the sale that the property
would not be delivered to the purchaser before he paid the purchase money."
(127) Sometimes, however, it happens that a replication which, at first
sight, appears to be equitable, unjustly inflicts an injury on the defendant;
and when this takes place, an addition to the pleadings is required for the
purpose of protecting the defendant, which is styled Duplicatio.
(128) Again, if this, though it appears at first sight to be just, for
some reason or other injures the plaintiff, another addition to the pleadings
is required by which the plaintiff may be protected, and this is called a
(129) Sometimes the multiplicity of affairs requires the use of
additional exceptions to those which we have already
(130) Let us now consider Prescriptions, which have been
adopted for the benefit of the plaintiff.
(131) For it is frequently the case that, under the same obligation a
party is required to do something for us at present, and something more at a
future time. For instance, where we have stipulated for the payment of a
certain sum of money every year, or every month, and, at the end of the year or
month, a sum of money is required to be paid to us for this time; and with
reference to years to come, although an obligation is understood to have been
contracted, the time of payment has not yet arrived. Therefore, if we desire to
bring an action to recover what is now due, and to proceed to joinder of issue
and leave the future discharge of the obligation unimpaired, it is necessary,
when we bring suit, to make use of the following prescription: "Let the
proceedings have reference only to what is at present due." Otherwise, if we
bring suit without making use of this prescription, under the formula by which
we sue for an uncertain amount, the statement of the claim is expressed as
follows: "Whatever it appears that Numerius Negidius should transfer to, or do
for Aulus Agerius," brings the entire obligation, that is to say, also what is
due in the future, into court; and no matter what may be due hereafter it
cannot be collected, nor can an action subsequently be brought to recover the
(131a) Likewise, where for example, we bring an action on purchase, in
order that land may be conveyed to us by sale, we must state the prescription
as follows: "Let the proceedings only have reference to the sale of the land";
and, afterwards, if we desire vacant posses-
 These terms and the order of their employment are
strongly suggestive of the ancient forms of Common Law pleading, the Reply,
Rejoinder, Surrejoinder, Rebutter and Surrebutter. Under both the Roman and
English systems, the pleadings could be indefinitely multiplied, until joinder
of issue was attained, but it was not customary to extend them beyond the
Triplicatio, or Surrejoinder. — ed.
Præscriptio. This was equivalent to an
exception, or a demurrer, which took the place of the Demonstratio, and
was inserted in the beginning of the Formula. It was subsequently known as the
Actio Præscriptis Verbis, and operated as a limitation of the
right of action. To have legal effect, it was essential that it should be
specially pleaded. — ed.
sion be delivered to us, we will be entitled to an action under the
stipulation, or to one under the contract of purchase to compel its delivery.
If we neglect to make use of this prescription, the obligation of our entire
right embraced in the uncertain claim: "Whatever on this account Numerius
Negidius. should give to, or do for Aulus Agerius," is disposed of by the
statement of the claim in the former suit; so that afterwards we will not be
entitled to any action to any action to compel the delivery of vacant
possession, if we should desire to bring one.
(132) Prescriptions are so called for the reason that they precede the
formulas, which fact is perfectly obvious.
(133) At the present time, however, as we mentioned above, all
prescriptions proceed from the plaintiff, while formerly some of them were
pleaded in behalf of the defendant, as for instance, the following
prescription: "Let this point be determined, if it does not prejudice the
estate"; which is now changed into a species of exception, and is used when the
claimant of the estate prejudices the right to the same by bringing another
kind of action, for example, if he brings suit for certain articles belonging
to the estate; for it would be unjust to render the result of an action
involving the entire estate dependent upon a decision having reference to only
a portion of the same . . . .
(134) If suit is brought under a stipulation entered into by a slave,
and the Intentio states to whom the amount is to be paid, that is to
say, that what the slave stipulated for should be paid to his master; the
allegations in the prescription should be true in accordance with their natural
(135) Moreover, what we have said with reference to slaves we understand
to be applicable to all other persons subject to our authority.
(136) Again, we should observe that when we bring an action against a
party who promised something which was uncertain, the formula should be drawn
up so as to include a prescription, instead of a statement of the cause of
action, as follows: "Let So-and-So be judge. For the reason that Aulus Agerius
stipulated for something uncertain from Numerius Negidius, payment of which is
now due, whatever on this account Numerius Negidius should transfer to, or do
for, Aulus Agerius, etc."
(137) When an action is brought against a sponsor or surety, it is the
practice, in the case of the sponsor, to employ the following form of
prescription: "Let the action be tried on the ground that Aulus Agerius
stipulated for something of uncertain amount from Lucius Titius, for which
Numerius Negidius is sponsor for the amount which is now due." In the case of a
surety, the following form is employed: "Let the case be tried on the ground
that Numerius Negidius became surety for Lucius Titius for an uncertain amount,
which is now due"; and then the formula is added.
 Original manuscript illegible.
 The Formulary System of the Romans contributed much of
value and importance to both the principles and forms of the Common Law. The
(138) It remains for us to examine interdicts.
(139) The Prætor, or the Proconsul, interposes his authority
directly in certain cases for the purpose of putting an end to controversies.
This he especially does when there is a dispute between the parties with
reference to possession or quasi possession; and, in short, he either orders
something to be done, or forbids it to be done. Moreover, the formulas and the
clauses made use of in this proceeding are styled interdicts and decrees.
(140) They are called decrees when he commands something to be done, for
instance when he directs that something be produced in court, or restored; they
are called interdicts when he forbids something to be done; for instance when
he directs that no violence be employed against the party who is in possession
without any defect; or that nothing be done on consecrated ground. Hence, all
interdicts have reference to restitution, production, or prohibition.
(141) Still, when he orders that something shall be done, or prohibits
some act from being performed, the affair is not immediately concluded, but
recourse is had to one or more judges, and the formulas having been issued, an
inquiry is held as to whether anything has been done, or some act which he
ordered has not been performed, in opposition to the Edict of the Prætor.
In a proceeding of this kind sometimes a penalty is involved, and sometimes it
is not; it is penal, for instance, where a formal promise is concerned, and it
is not where an arbiter is demanded. It is the practice to proceed under
prohibitory interdicts always by way of solemn promise, and, in the case of
orders for restitution or production, this is either done by way of formal
promise or by means of the formula styled "arbitrary".
(142) Hence, the original division of interdicts is into prohibitory, or
for restriction, or for production.
(143) The next division is into those instituted for the purpose of
obtaining, retaining, or recovering possession.
(144) An interdict issued to the prætorian possessor of an estate
for the purpose of obtaining possession begins: "Whatever portion of the
property"; and its force and effect is that the possession of property held by
anyone, as heir, or possessor, or who has fraudulently relinquished possession,
shall be restored to the party to whom possession is granted by the interdict.
He is considered to possess the prop-
the great lawyers of that age are still quoted authoritatively in our
courts. The ancient writs of English legal procedure were directly derived from
the Formula. As equity jurisprudence traces its origin to the broad and
indulgent interpretation permitted the Prætorian Tribunal, so the modern
bill in equity bears many striking resemblances to the instruments by means of
which parties litigant were enabled to maintain their rights and protect their
persons before the most powerful and distinguished of the Roman
The formulæ were almost infinite in number and variety, and
the party to a suit who failed to elect the one applicable to his case paid the
penalty of his ignorance or negligence with the loss of his right of action.
The abuses which grew out of the inflexible adherence to certain rules and
forms which, encouraging chicanery and oppression, were often productive of
gross injustice, eventually caused the abolition of the system. — ed.
erty as heir, not only when he is the actual heir, but also when he
thinks that he is the heir. He holds the property as the mere possessor who has
anything belonging to an estate, or the entire estate, without any title to the
same, knowing that he is in possession of something that does not belong to
The interdict for the purpose of obtaining possession is so called
because it is only advantageous to him who now, for the first time, attempts to
acquire possession of the property; therefore, if anyone having obtained
possession should lose it, the interdict ceases to be of any benefit to
(145) Again, an interdict is granted to the purchaser of a bankrupt
estate, which some authorities call a possessory interdict.
(146) In like manner, an interdict of the same kind is granted to one
who purchases confiscated property at a public sale, which is called
Sectorium for the reason that those who purchase such property at public
sale, are designated Sectores.
(147) The interdict called Salvianum was also one devised for the
purpose of obtaining possession; and the owner of land can make use of it
against the property of the tenant which the latter has pledged to him as
security for the future payment of rent.
(148) It is the practice for interdicts for the purpose of retaining
possession to be granted when a controversy arises between two parties with
reference to the ownership of property; and it must be previously ascertained
which one of the litigants should have possession, and which one should have a
right to demand it; and it is for this purpose that the interdicts Uti
Possidetis and Utribi has been established.
(149) The interdict Uti Possidetis is granted with reference to
the possession of land or buildings; the interdict Utrubi with reference
to the possession of movable property.
(150) If the interdict has reference to land or houses, the Prætor
orders that party to have the preference who, at the time when the interdict
was issued, obtained possession from his adversary, neither by force nor
clandestinely, nor with his acquiescence.
When, however, it has reference to movable property, he orders that
party to have the preference who, for the greater part of that year, has held
possession against his adversary neither by force, nor clandestinely, or with
his acquiescence; and this is sufficiently apparent from the terms of the
(151) But, in the interdict Utrubi, not only is the possession of
every one a benefit to him, but that of another party which may be properly
treated as accessory to it; for instance, that of a deceased person whose heir
he is, and that of anyone from whom he has purchased property, or acquired it
by means of a donation or a dowry. Hence, if the lawful possession of another
party is added to our own, and it exceeds the possession of our adversary, we
will be successful in the proceeding under that interdict.
The accession of time is not granted, and cannot be granted to one who
has no possession of his own, for whatever does not exist can
have nothing added to it. If, however, a party should have defective
possession, that is to say, if it had been acquired from his adversary either
by violence, or clandestinely, or by mere acquiescence, no accession is
granted, for his own possession is of no advantage to him.
(152) Moreover, the year is reckoned backward, and hence, for example,
if you had possession eight months before I did, and I had it during the seven
following months, I will be entitled to the preference, because your possession
for the first three months would be of no advantage to you under this
interdict, as the possession was in another year,
(153) We consider a party to be in possession not only where we
ourselves possess, but also where anyone is in possession in our name, although
he may not be subject to our authority; as, for instance, a tenant or a lessee.
We are also considered to have possession by means of those with whom we have
deposited property, or lent it for use, or to whom we have granted gratuitous
lodging, or the usufruct or use; and this is what is commonly called the power
of retaining possession of property by anyone who possesses it in our name.
Again, many authorities hold that possession can be retained merely by
intention; that is to say, that though we ourselves may not be in possession,
nor anyone else in our name, still, if there be no intention of relinquishing
possession, and we leave the property, intending afterwards to return, we are
deemed to have retained possession of it. We stated in the Second Commentary by
what persons we could obtain possession, nor is there any doubt that we cannot
obtain it by mere intention.
(154) The interdict for the purpose of recovering possession is usually
granted where anyone has been ejected by violence, for the interdict which is
issued begins as follows: "In the place from which you have been forcibly
ejected"; and by means of it the party who ejected the other is compelled to
restore possession of the property to him, provided the latter did not himself
obtain possession either by violence, or clandestinely, or by permission from
the former; hence, I can eject with impunity anyone who has obtained possession
from me either by violence, or clandestinely, or by permission.
(155) Sometimes, however, even though I should forcibly eject the party
who obtained possession from me either by violence, or clandestinely, or by
permission, I can be compelled to restore possession to him; for instance, if I
should eject him by force of arms, for, on account of the atrocity of the
crime, I am liable to have proceedings instituted against me by which I shall
be absolutely obliged to reinstate him in possession. We understand by the
expression, "force of arms," not only the use of shields, swords, and helmets,
but also that of sticks and stone.
(156) The third division of interdicts is into simple and double.
(157) Simple interdicts are, for instance, those in which one party is
plaintiff and the other defendant, and of this description are all those
established for the restitution or the production of property; for he is the
plaintiff who demands that the property be either produced or restored, and he
is the defendant from whom it is demanded that he produce or restore it.
(158) Of prohibitory interdicts some are double, and others simple.
(159) Simple interdicts are, for instance, those by which the
Prætor forbids a defendant to perform any illegal act on consecrated
ground, or in a public stream, or on its bank; for the plaintiff is he who
demands that the act shall not be committed, and the defendant is he who
attempts to commit it.
(160) Double interdicts are such, for instance, as Uti Possidetis
and Utrubi. They are called double because the position of both
litigants in them is the same, and neither is exclusively understood to be
defendant or plaintiff, but both of them sustain the parts of defendant and
plaintiff. In fact the Prætor addresses both in the same language, for
the form of these interdicts is as follows: "I forbid force to be employed to
prevent you from having possession of the property which you now possess." The
terms of the other are as follows: "I forbid violence to be employed to prevent
the party from removing the slave in dispute, and who has been in his
possession for the greater part of the year."
(161) The different kinds of interdicts having been" explained, let us
next consider their order and effects, and we shall begin with those which are
(162) Therefore, if an interdict for the restitution or the production
of property is issued; for instance, for the restitution of possession to one
who has been forcibly ejected, or for the production of a freedman whose
services his patron desires to claim, the proceedings are sometimes brought to
a conclusion without the risk of incurring the penalty, and sometimes with that
(163) For, if he against whom the case is brought should demand an
arbiter, he receives the formula which is called "arbitrary," and if, by the
award of the judge, he is required to restore or produce any property, he
either produces or restores it without any penalty, and thus is discharged from
liability; or if he does not restore or produce it, he is compelled to
indemnify the plaintiff for the loss sustained through his disobedience. The
plaintiff, however, can, without incurring a penalty, bring an action against
one who is not required to produce or restore any property, unless an action
for vexatious litigation is brought against him to recover the tenth part of
the property in question; although it is said to have been held by Proculus
that an action for vexatious litigation should be refused to him who demands
arbitration, because he is considered to have, as it were, admitted that he
ought to restore or produce the property. We, however, make use of another
rule, and very properly; for anyone who demands an arbiter rather shows his
intention to litigate in a more moderate manner, than for the reason that he
admits the validity of the claim of his adversary.
(164) It should be observed that he who desires to demand an arbiter
must do so before leaving court, that is before he departs from
the tribunal of the Prætor, for if such a demand is made later it
will not be granted.
(165) Hence, if he does not demand an arbiter, but leaves the tribunal
without doing so, the affair is brought to a conclusion at the risk of the
parties; for the plaintiff challenges his adversary to deposit the forfeit
which shall be paid if, in disobedience to the Edict of the Prætor, he
does not produce or restore the property; and the defendant restipulates in
opposition to the demand for a forfeit by his opponent. The plaintiff then
delivers to his adversary the formula of the forfeit to be deposited, and the
latter in his turn delivers that of the restipulation.
The plaintiff, however, adds to the formula of the promise of a forfeit
another action for the restipulation or the production of the property in
question, so that if he should be successful, and the property is not either
reduced or restored to him . . . . 
(166) When a double interdict has been granted, the mesne profits are
sold at auction and the highest bidder is placed in possession of the property,
provided he furnishes his adversary security under the stipulation for the
enjoyment of the profits; the force and effect of which is that if judgment
should be rendered against him with reference to possession, he shall pay his
adversary the sum provided for in the stipulation.
This bidding between the parties is designated the bidding for the
profits, because they contend with one another for the profits of the property
during the preliminary proceedings. After this, each one of them challenges the
other to deposit the forfeit to be -paid by the promisor, if he has by violence
interfered with the possession of his adversary, and hence has violated the
Edict of the Prætor; and each of them mutually bind themselves, or the
two stipulations being united so that one promise is made between them, and
also one restipulation is entered into by one party against the other, which is
the more convenient way of proceeding, and therefore the one most generally in
(166a) Then, after the necessary formulas of all the promises and
restipulations have been filed by both parties, the judge before whom the case
is tried must examine the point introduced by the Prætor in the
interdict; that is to say, which of the parties was in possession of the land
or the house at the time when the interdict was issued, and that he did not
obtain possession of it by violence, or clandestinely, or with the permission
of the adverse party. When the judge has investigated this, and has, perhaps,
decided in my favor, he condemns my adversary to pay the penal sums called for
by the promise and the restipulation which I made with him, and in consequence
discharges me from liability for the promise and restipulation which were made
with me. Further, if my adversary had possession of the property for the reason
that he made the highest bid for the profits of the same, and he does not
restore possession to me, he can have judgment rendered against him in the
action styled Cascellian or Secutorian.
Original manuscript illegible.
(167) Therefore, if he who is the highest bidder does not prove that he
is entitled to possession, he is ordered to pay the sums mentioned in the
promise and restipulation, as well as the amount he offered in his bid for the
mesne profits at auction, by way of penalty, and to restore possession of the
property; and, in addition to this, he must return the profits which, in the
meantime he has collected; for the sum of money mentioned in the bid for the
profits is not the price of the same, but is paid as a penalty because the
party attempted to retain possession belonging to another, for this time, and
also to enjoy the profits derived from the property.
(168) Moreover, if he who made a lower bid for the profits at the
auction does not prove that he is entitled to possession, he should only be
required to pay the amount of the promise and restipulation by way of
(169) We should observe, however, that the unsuccessful bidder, without
availing himself of the stipulation for the enjoyment of the profits, has a
right to bring an action on the sale at auction, just as by the Cascellian or
Secutorian action he can sue for the recovery of possession. A special action
has been introduced for this purpose, which is called "fructuary," by means of
which the plaintiff receives satisfaction for his judgment. This action is also
called Secutorian, because it follows the advantage of the promise, but it is
not also called Cascellian.
(170) But, for the reason that, after an interdict has been issued, some
of the parties are unwilling to institute other proceedings under it, and on
this account matters cannot be expedited, the Prætor made provision for a
case of this kind, and introduced interdicts which we call "secondary"; because
they are issued in the second place, under such circumstances. The force and
effect of these is that he who does not institute further proceedings under the
interdict, for example, one who does not forcibly eject the other party; or
does not make a bid for the mesne profits of the property; or does not furnish
security for the same; or does not participate in the promise, or defend the
case; shall, if he is in possession of the property, restore it to his
adversary; for if he is not in possession, he shall not use violence against
the other party who is. Hence, although, otherwise, he might have been able to
succeed under the interdict Uti Possidetis, if he could have complied
with the other requirements imposed by it, and did not do so, he will still
lose his case by means of a secondary interdict . . . . 
(171) For the purpose of avoiding vexatious litigation, the parties are
sometimes deterred by pecuniary penalties, and sometimes by an oath which is
imposed by the Prætor. In certain cases an action for double damages is
brought against a defendant; for instance, in the collection of a judgment
debt, or for money expended for a principal, or for unlawful damage to
property, or where proceedings are instituted to collect legacies left by
condemnation. In some instances, the deposit of a forfeit is permitted to be
made, for example, in an action
Original manuscript indistinct.
for a certain sum of money which has been lent, or to collect a debt
formerly incurred. Where suit is brought to collect a loan, the amount is
one-third of the sum in question; and in the case of the acknowledgment of a
balance due, it is one-half.
(172) If no deposit was made as a forfeit, and the penalty of double
damages was not imposed upon the party against whom the action was brought, and
under it, from the beginning, no more than simple damages can be collected; the
Prætor permits the plaintiff to require the defendant to swear that he
has not made a denial for the purpose of annoyance. Hence, although the heirs
and those who are considered to occupy the position of heirs, are not subject
to a penalty, and women and wards are exempted from the penalty of a forfeit,
the Prætor, nevertheless, orders them to be sworn.
(173) Moreover, in some cases from the beginning an action for more than
simple damages will lie; as in an action of manifest theft a fourfold penalty,
in non-manifest theft a double penalty, and when stolen property has been
delivered to another a threefold penalty can be collected; for in these and
some other instances, the suit is for more than simple damages, whether the
party denies, or admits the claim.
(174) Vexatious litigation by the plaintiff is also restrained sometimes
by the action for this purpose, sometimes by the contrary action, sometimes by
oath, and sometimes by a counter stipulation.
(175) The action of vexatious litigation is applicable as against all
other actions, and is for the tenth part of the claim, but for the third part
when brought against a joint stipulator.
(176) The party sued, however, has the right to choose whether he will
bring the action of vexatious litigation, or exact an oath from his adversary
that he has not brought suit for the purpose of causing annoyance.
(177) The counter action, however, is only applicable in certain cases;
for instance, where suit is brought for injury, and where one is brought
against a woman on the ground that having been placed in possession on account
of her unborn child, she transferred it fraudulently to some other party; or
where anyone brings an action alleging that he has been placed in possession by
the Prætor and is refused admission by another. In the case of an action
of injury it is granted for the tenth part of the amount in dispute; in the two
others for the fifth.
(178) But, the most severe restraint is that produced by the counter
action. For no one is condemned in the action of vexatious litigation to pay
the tenth part of the amount in dispute, unless he knew that he had no right to
bring suit, and did so only for the purpose of annoying his adversary and
relies for success rather upon the error or injustice of the judge, than on
account of the merits of his cause; for vexatious litigation, like the crime of
theft, depends upon intention. In the contrary action, however, the plaintiff
will, under all circumstances, be condemned if he should not prevail in the
former action, although he had good reason to believe that he had a right to
(179) Still, in all those cases in which the contrary action can be
brought, the action for vexatious litigation will also lie; but it is only
permitted to have recourse to one or the other of these proceedings. For
which reason if an oath should be exacted that the action has not been brought
for the purpose of annoyance, just as the action for vexatious litigation will
not lie, so the contrary action should not be granted.
(180) The penalty of the counter engagement is usually required in
certain cases, and, as in the contrary action the plaintiff is condemned under
all circumstances if he should not gain his case, nor is it necessary for him
to know that he had no good cause of action; so the penalty of the counter
engagement must, under all circumstances, be paid by the plaintiff if he was
unable to gain his case.
(181) Moreover, when anyone undergoes the penalty of the counter
engagement neither the action for vexatious litigation can be brought against
him, nor can the oath be administered, for it is clear that in cases of this
kind the contrary action will not lie.
(182) In certain actions persons who are condemned become infamous, as
in those of theft, robbery with violence, and injury, also in cases of
partnership, trust, guardianship, mandate, and deposit. In actions of theft,
robbery with violence, and injury, not only are the persons convicted branded
with infamy, but also where a compromise is made, as is stated in the Edict of
the Prætor; and this is proper, for it makes a great deal of
difference whether anyone becomes a debtor on account of the commission of a
crime, or under a contract. But while it is not expressly stated in any part of
the Edict that a party is to become infamous, still he is said to be infamous
who is forbidden to represent another in court, or to appoint, give, or have an
agent or attorney, or to intervene as agent or attorney in a case.
(183) In conclusion, it should be noted that a person who desires to
bring an action against another must summon him to appear in court, and if the
party summoned does not appear, he will be liable to a penalty under the Edict
of the Prætor. It is, however, not permitted to summon certain persons
without the permission of the Prætor; for instance, parents, patrons,
patronesses, and the children or parents of a patron or patroness; and anyone
who violates this provision is liable to a penalty.
(184) However, when the adversary who has been summoned appears in
court, and the business cannot be finished on the same day, the defendant must
furnish security; that is to say he must promise to appear on some other
(185) Security in certain instances is simple, that is, given without
sureties; and in others it is given with sureties; in still other instances, it
is given by oath; and in some cases a reference is made to judges, that is to
say, if the party does not appear, he may be immediately condemned to pay the
amount of the security by the judges; and all these things are explained at
length in the Edict of the Prætor.
(186) If proceedings have been instituted for the collection of a
judgment, or for money expended for a principal, the amount of the security is
equal to the value of the property in dispute. But in other cases the amount is
that which the plaintiff swears that he has not brought suit for with the
intention of causing annoyance; provided that the security is not more than
half the sum in question, or more than a hundred thousand sesterces. Hence, if
the property in dispute is valued at a hundred thousand sesterces, and the
action is not for the collection of a judgment, or money expended for a
principal, the amount of the security cannot be more than fifty thousand
(187) Those persons whom we cannot summon to appear in court without the
permission of the Prætor, we cannot compel to furnish security for their
future appearance; unless the Prætor, after having been applied to,
END OF THE INSTITUTES OF GAIUS.