In eum qui, cum tutor non esset, dolo malo auctor factus esse dicetur, judicium dabo; ut quanti ea res erit, in tantam pecuniam condemnetur1.

D. 27. 6. 7. pr.

U. 12.

(G. 4. P. 12.)

(g) Quaeve alienatio judicii mutandi causa facta erit dolo malo, in integrum restituam3.

D. 4. 7. 8. I. P. 12. (G. 4.

XIII. DE RECEPTIS.

U. 12, 13.)

Qui arbitrium, poena compromissa, receperit, sententiam eum dicere cogam3.

D. 4. 8. 3. 2: 4. 8. 15. pr.

tutor.

"Scienti non subvenit Praetor: merito, quoniam ipse se decepit." Ulp. in D. 27. 6. 1. 6.

1 Quanti ea res erit id quod interest.

"Magis puto non poenam, sed veritatem his verbis contineri." Ulp. in D. 27. 6. 7. 2.

=

2 Judicii mutandi causa in order to introduce a fresh plaintiff or defendant into a suit, with the intention of injuring his adversary. See the excerpts from Gaius in D. 4. 7. 1 and 4. 7. 3. The instances specially selected by the Jurist are: "si alterius provinciae hominem, aut potentiorem opposuerit adversarium :" and he gives the reason: quia etiamsi cum eo qui alterius provinciae est experiar, in illius provincia experiri debeo; et potentiori pares non esse possumus.”

66

So also the edict applies if our opponent manumit a slave to whom we lay claim.

3 "When a man has undertaken the office of umpire, and the parties have agreed upon the penalty, I shall compel that man to make an award."

The Praetor encouraged the amicable settlement of disputes, and therefore allowed a reference to arbitration at any time before the litis contestatio: but it was necessary to the validity of the reference that the article in dispute should be deposited with the umpire; or, when that was impossible or inconvenient, the parties must enter into a stipulation and restipulation for a penalty to be paid by that one who should refuse to abide by the award or hinder the award being made. D. 4. 8. II. 1 and 2. Hence "poena compromissa" in the excerpt. If the parties simply promised "sententiae sisti," still a penalty was presumed and could be recovered by a condictio incerti. D. 4. 8. 27. 7.

Nautae, caupones, stabularii, quod cujusque salvum fore receperint, nisi restituent, in eos judicium dabo'.

Rudorff prefers the reading "pecunia compromissa" instead of "poena compromissa," but the perpetual recurrence of the word poena in the title "De Receptis," D. 4. 8, renders it almost impossible that pecunia can have been corrupted into poena in the citation of the edict. Beck reads poena.

1 Just as arbiters ought to complete the adjudication which they have undertaken (receptum), so also ought certain classes of traders to restore what they have taken into their charge (receptum). The mention of receptum in one sense leads to an introduction in immediate sequence of the rules as to receptum in the other sense. See remarks on this method of digressing in the notes on editiones and pacta, §§ II. III. Partis Primae.

2 In many cases sureties had to be furnished at the time when the formula was issued: as for instance, by the defendant in a real action for the safe custody of the article in dispute; or by either party when he was acting alieno nomine, i.e. as an agent. No edict on this topic is extant, but references to the practice are abundant. See Gai. Comm. IV. 91, 101, 102: Paul. Sent. I. II. 1: Fragm. Vat. §§ 92, 317, 336: U. 14 in D. 2. 8. 7. I, and 5. 3. 5. pr.: P. 14 in D. 2. 8. 8. 5 and 6.

PARS SECUNDA.

DE JUDICIIS'.

(i. A.)9

I. DE INOFFICIOSO TESTAMENTO.

Si quis testamentum inofficiosum dicere velit, eo quod injuste

1 The second part of the Edict deals with the proceedings "in judicio," or the hearing of the evidence before the judex appointed in the formula; who on the conclusion of this hearing pronounced sentence according to the instructions given to him in the condemnatio.

The evidence to be received would, of course, depend upon the nature of the action; and therefore in this portion of the Edict actions are classified and arranged, a short exposition of the facts necessary to found each being first set forth (which is the edict proper on the topic), and the appropriate formula subjoined. These formulae are in most cases lost, because Tribonian, in whose time another style of procedure was employed, had no reason for retaining them; but although the change of process from “ordinary" to "extraordinary" (see Abdy and Walker's Justinian, App. Q) caused the formulae themselves to be obsolete, yet the rules of law on which they had been founded still subsisted, and therefore are in some cases quoted verbatim in the Digest, and at other times are so clearly implied as to make a restoration of their text possible. To gather together what is thus preserved of the edicts, and to indicate the nature of the missing fragments, is our present task. The formulae we shall only attempt to reproduce in a few instances where Gaius or Cicero furnish us with materials. 2 See Introduction, p. 24.

• The 5th book of the Digest opens with a title on judicia in

se exheredatum aut praeteritum esse queratur, neque ei quarta pars debitae portionis ab intestato relicta fuerit, de inofficioso testamento intra quinquennium judicium dabo.

D. 5. 2. 3: 5.2. 5. 1: 5. 2. 8. 8 and 9 and 17: 5. 2. 9.

D. 5. 3.

II.

III.

DE HEREDITATIS PETITIONE'.

(G. 6. J. 6. P. 16, 20. U. 14, 15.)

SI PARS HEREDITATIS PETATUR.

U. 14.

general and the proper forum judicii, i. e. venue or place of trial. We may therefore fairly conclude that the Edict also laid down rules on these subjects: but we abstain from purely hypothetical restitutions. Heineccius and Ranchinus have attempted the task, but their labours lead to utterly dissimilar results.

We have, however, adopted the restitution of the Edict "de inofficioso testamento" suggested by Pothier and approved by Westenberg; because it is so very strongly supported by the passages from the Digest cited just below it.

Of the five titles under (i. A), judicia de dominio universitatis rerum, the three first quoted refer to praetorian formulae for carrying into effect the Civil Law, formulae in jus conceptae; the fourth to the process for effectuating an edict of the Praetor Urbanus; the fifth to one for carrying out rules of the Praetor Fideicommissarius; the two latter therefore being formulae in factum conceptae. See Abdy and Walker's Gaius, App. Q.

On the subject of Testamentum Inofficiosum see Abdy and Walker's Justinian, App. E.

1 Vindicatio= a real action for a single corporeal thing or for a predial servitude: petitio=a real action for a personal servitude or for an universitas rerum.

2 "Hereditas pro ea parte peti debet, pro qua ad nos pertinet: alioquin plus petendi periculum incurrimus et causam perdimus.” Paul. Sent. in Vet. Icti Consult. v. 5. The intentio of the formula in this suit is quoted in Gai. Comm. IV. 54.

3 Just. Inst. III. 9.

3. An actio in rem, Gaius tells us in Comm. IV. 91, can always be prosecuted in two different ways; it must therefore be understood that the sponsio, formulae and stipulationes which we have set down are equally applicable, mutatis mutandis, to any of the five preceding or four succeeding actions.

The genuine real action was that by "petitory formula,” and the actual formula can be made out most clearly from the quotation of it by Cicero and Gaius. The stipulatio judicatum solvi was tacked on to enforce specific restitution, if that were possible: for in formulae arbitrariae, (of which kind were all the formulae in petitory suits,) the award was only optional in form; and it was really intended that the defendant should restore the thing, unless it had ceased to exist; and only pay the alternative assessment, if the restoration was impossible, not if he was simply unwilling to restore. Hence in cases of fraud or resistance, force, militaris manus, would be called in to enforce recovery of the thing itself.

The other form of prosecuting a real action was per sponsionem : which practically was a conversion of the actio in rem into an actio in personam. The plaintiff compelled his adversary to enter into a wager as to the ownership, and then sued him for the amount of his wager: but whether this had been lost or not could only be determined by the Court pronouncing its opinion on the question of ownership. The wager, therefore, being merely praejudicial, payment was never exacted (Gai. Comm. IV. 94); but at the time when the formula in claim of the wager was issued, the Praetor compelled the defendant to enter into a stipulation pro praede litis et vindiciarum, whereby he bound himself to permit the thing and its fruits to follow the judgment as to the wager.

Thus the sponsional procedure bore a strong resemblance to the English action of Ejectment, where the decision of a case of imaginary trespass committed by a supposed lessee of A upon a sup