The Ancient Library

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That body of law which was founded on, and flowed from the edicts of the praetors, and curule aediles, was called jus honorarium., as opposed to the jus civile., in its narrower sense, which comprehended the leges, plebiscites, senatus consulta, &c. The jus honorarium introduced new rights and modified existing rights ; it also provided remedies suitable to such new rights and modifications of old rights, and this was effected by the actions which the praetors and aediles allowed. On this jurisdiction of the praetors and aediles is founded the distinc­tion of actions into civiles and Itonorariae, or, as they are sometimes called, praetoriae, from the greater importance of the praetor's jurisdiction.

There were several other divisions of actions, all of which had reference to the forms of procedure.

A division of actions was sometimes made with reference to the object which the plaintiff had in view. If the object was to obtain a thing, the action was called persecutoria. If the object was to obtain damages (poena) for an injury, as in the case of a thing stolen, the action was poenalis ; for the thing itself could be claimed both by the vin-dicatio and the condictio. If the object was to obtain both the thing and damages, it was probably sometimes called actio mixta9 a term which had however another signification also, as already ob­served. The division of actiones into direcfae and utiles must be traced historically to the actiones fictitiae or fictions by which the rights of action were enlarged and extended. The origin of this division was in the power assumed by the praetor to grant an action in special cases where no action could legally be brought, and in which an action, if brought, would have been inanis or inutilis. After the decline of the praetor's power, the actiones utiles were still extended by the contrivances of the Juris prudentes and the rescripts of the emperors. Whenever an actio utilis was granted, it was framed on some analogy to a legally recognised right of action. Thus, in the examples given by Gaius (iv. 34), he who obtained the bonorum pos-sessio by the praetor's edict, succeeded to the de­ceased by the praetorian and not the civil law: he had, therefore, no direct action (directa actio) in respect of the rights of the deceased, and could only bring his action on the fiction of his being what he was not, namely, Jieres.

Actions were also divided into ordinariae and extraordinariae. The ordinariae were those which were prosecuted in the usual way, first before the praetor, in jure, and then before the judex, in fudicio. When the whole matter was settled be­fore or by the praetor in a summary way, the name extraordinaria was applicable to such action. [interdict.]

The term condictiones only applies to personal ac­tions ; but not to all personal actions. It does not com­prehend actions ex delicto, nor bonae fidei actiones. As opposed to bonae fidei actiones, condictiones were sometimes called actiones stricti juris. In the ac­tiones stricti juris it appears that the formula of the praetor expressed in precise and strict terms the matter submitted to the judex, whose authority was thus confined within limits. In the actiones lonae fidei, or ex fide bona (Cic. Top. 17), more latitude was given, either by the formula of the praetor, or was implied in the kind of action, such as the action ex empto, vendito, locato, &c., and the special circumstances of the case were to be taken into consideration by the judex. The actiones


arbitrariae were so called from the judex in such case being called an arbiter, probably, as Festus says, because the whole matter in dispute was submitted to his judgment; and he could decide according to the justice and equity of the case, without being fettered by the praetor's formula. It should be observed also, that the judex properly could only condemn in a sum of money; but the arbiter might declare that any particular act should be done by either of the parties, which was called his arbitrium, and was followed by the condemnatio if it was not obeyed.

The division of actions into perpetuae and tem-porales had reference to the time within which an action might be brought, after the right of action had accrued. Originally those actions which were given by a lex, senatus consutium, or an imperial constitution, might be brought without any limi­tation as to time ; but those which were granted by the praetor's authority were generally limited to the year of his office. A time of limitation was, however, fixed for all actions by the late imperial constitutions.

The division of actions into actiones in jus and in factum is properly no division of actions, but has merely reference to the nature of the formula. In the formula in factum concepta, the praetor might direct the judex barely to inquire as to the fact which was the only matter in issue ; and on finding the fact, to make the proper condemnatio : as in the case of a freedman bringing an action against his patronus. (Gains, iv, 46.) In the formula in jus the fact was not in issue, but the legal consequences of the fact were submitted to the discretion of the judex. The.formula in factum commenced with the technical expression, Si paret, &c., " If it should appear," &c.; the formula in jus commenced, Quod A. A., &c., " Whereas A. A. did so and so." (Gaius, iv. 47.)

The actions which had for their object the punishment of crimes, were considered public ; as opposed to those actions by which some particular person claimed a right or compensation, and which were therefore called privatae. The former were properly called judicia publica ; and the latter, as contrasted with them, were called judicia privata*


The actions called noxales arose when a films familias (a son in the power of his father), or a slave, committed a theft, or did any injury to another. In either case the father or owner might give up the wrong-doer to the person injured, or else he must pay competent damages. These ac­tions, it appears, take their name either from the injury committed, or because the wrong-doer was liable to be given up to punishment (noxae) to the person injured. Some of these actions were of legal origin, as that of theft, which was given by the Twelve Tables; that of damnum injuriae, which was given by the Aquilia Lex ; and that of injuriarum et vi bonorum raptorum, which was given by the e,dict, and therefore was of praetorian origin. This instance will serve to show that the Roman division and classification of actions varied according as the Roman writers contemplated the sources of rights of action, or the remedies and the modes of ob­taining them.

An action was commenced by the plaintiff sum­moning the defendant to appear before the praetor or other magistrate who had jurisdictio : this pro­cess was called in jus vocatio ; and, according to

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