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On this page: Restitutoria Actio – Retfculum – Retiarii – Retis


assent of a Tutor or Curator was required, and therefore if he did such act by himself, no Resti-tutio was necessary. If the Tutor had given his Auctoritas, or the Curator his assent, the trans­action was legally binding, but yet the Minor could claim Restitutio if he had sustained injury by the transaction. Gains (iv. 57) gives an ex­ample, when he says that if too large an amount was inserted in the Condemnatio of the Formula, the matter is set right by the Praetor, or in other words " reus in integrum restituitur," but if too little was inserted in the formula, the Praetor would not make any alteration ; " for," he adds, " the Praetor more readily relieves a defendant than a plainthT; but we except the case of Minores xxv annorum, for the Praetor relieves persons of this class in all cases wherein they have committed error (in omnibus rebus lapsis)."

There were however cases in which Minores could obtain no Restitutio ; for instance, when a Minor with fraudulent design gave himself out to be Major ; when he confirmed the transaction after coming of age ; and in other cases. The benefit of this Restitutio belonged to the heredes of the Mi­nor, and generally also to sureties. The demand could only be made, as a general rule, against the person with whom the Minor had the transaction and his heredes. The Minor had four years after attaining his majority, in which he could sue. The older law allowed only one year. If the time had not elapsed when he died, his heres had the benefit of the remaining time, which was reckoned from the time adeundi hereditatem ; and if the heres was a Minor, from the time of his attaining his majority. [curator.]

: The case of Absentia: which comprehends not merely absence in the ordinary sense of the word, but absence owing to madness or imprisonment, and the like causes. (Dig. 4. tit. 6. s. 28.) If a man had sustained injury by his own absentia, he was generally intitled to restitutio, if the absentia was unavoidable: if it was not unavoidable, he was intitled to Restitutio, either if he could have no redress from his Procurator, or was not blamable for not having appointed one. If a man found that he might sustain damage on account of the absence of his adversary, he might avoid that by entering a protestation in due form.

The case of Error, Mistake, comprehends such error as cannot be imputed as blame ; and in such case, a man could always have restitutio when another was enriched by his loss. The erroris eausae probatio somewhat resembles this case. (Gaius, i. 67—75.)

The case of Capitis diminutio through adrogatio or in manum conventio, which was legally followed by the extinction of all the obligationes of the per­son adrogated or in manu. The Praetor restored to the creditors of such persons their former rights. (Gains, iii. 83, iv. 38.)

The case of alienatio judicii nratandi causa facta is hardly a case of restitutio, though sometimes considered such. It occurs when a man alienates a thing for the purpose of injuring a claimant by substituting for himself another against whom the claimant cannot so easily prosecute his right. In the case of a thing which the Possessor had thus alienated, the Praetor gave an actio in factum against the alienor to the full value of the thing. If a man assigned a claim or right with the view of injuring his adversary by giving him a harder


claimant to deal with, the adversary could meet the assignee, when he sued, with an exceptio judicii mutandi causa.

The case of alienatio in fraudem creditorum facta. (Dig. 42. tit. 8.) When a man was insol­vent (non solvendo), and alienated his propertjr for the purpose of injuring his creditors, the Praetor's Edict gave the creditors a remedv. If for instance

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a debt was paid post bona possessa, it was abso lutely void, for the effect of the Bonorum Possessio in the case of insolvency was to put all the credi­tors on the same footing. If any alienation was made before the Bonorum Possessio, it was valid in some cases. A debtor might reject any thing which was for his advantage, for the Praetor's edict related only to the diminution of his property, and not to its increase. If the act was such as to diminish his property (fraudationis causa) the cre­ditors, as a general rule, were intitled to have the act undone. A creditor who exacted his just debt, was intitled to retain it. The actio by which the creditors destroyed the effect of an illegal aliena­tion was called Pauliana, which was brought by the Curator bonorum in the name of the creditors, for the restoration of the thing which had been im­properly aliened, and all its fruits. The creditors were also intitled to an Interdictum fraudatorium in order to get possession of the thing that had been improperly aliened. (Dig. 36. tit. 1. s. 67.) • In the Imperial times, Restitutio was also ap­plied to the remission of a punishment (Tac. Ann. xiv. 12 ;- Plin. Ep. x. 64, 65 ; Dig. 48. tit. 1.9. s. 2.7) which could only be done by the Imperial grace.

(Dig. 4. tit. 1—7 ; 44. tit. 4 ; Paulus, S. R. i. tit. 7—9 ; Cod. 2. tit. 20—55 ; Cod. Theod. 2. tit. 15, 16; Muhlenbruch, Doct. Pandect. ; Mac- keldey, LehrbucJi, &c. 12th ed.; Rein, DasRomische Privatrec/it ; Rudorff, Zeitschrift fur GescMcht. Rechtsiv. xii. 131, Ueber die Octavianisclie Formel ; Puchta, Inst. ii. § 209.) [G. L.]

RESTITUTORIA ACTIO. [!ntercessio.]

RETIARII. [gladiatores, p. 575, b.]

RETFCULUM, a head-dress. [CoMA, p; 329, a.]

RETIS and RETE ; dim. RETI'CULUM /cruoi/), a net. Nets were made most commonly of flax from Egypt, Colchis, the vicinity of the Cinyps in North Africa, and some other places. Occasionally they were of hemp. (Varro, de Re Rust. iii. 5.) They are sometimes called Una (Xivct) on account of the material of which they consisted. (Horn. II. v. 487 ; Brunck, Anal. ii. 494, 495.) The meshes (maculae, Ovid. Epist.v. 19 ; Varro, de ReRust.iii. 11 ; Nemesiani, Cyneg. 302 ; /3pox<», dim. jSpoxiSes, Heliodor. vi. p. 231, ed. Commelin.) were great or small according to the purposes intended ; and these purposes were very various. But by far the most important ap­plication of net-work was to the three kindred arts of fowling, hunting, and fishing : and besides the general terms used alike in reference to all these employments, there are special terms to be explained under each of these heads.

I. In fowling the use of nets was comparatively limited (Aristoph. Av. 528) ; nevertheless thrushes were caught in them (Hor. Epod. ii. 33, 34) ; and doves or pigeons with their limbs tied up or fastened to the ground, or with their eyes covered or put out, were confined in a net, in order that their cries might allure others into the snare. (Aristoph. A v, 1083.) The ancient Egyptians, as

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