The actio Serviana here mentioned was apparently not the same as the actio Serviana whereby a lessor could recover the goods of a colonus which had been pledged as a security for the payment of rent.

§ 36. A Quintus Publicius is mentioned by Cicero, Pro Cluentio, 45, as praetor in B.C. 66 or shortly before. The actio Publiciana, 2 § 41, was used by the purchaser of a res mancipi who had taken by simple delivery what could only be conveyed by mancipation; or by a grantee from a grantor who was not proprietor. The abolition of the distinction of res mancipi and nec mancipi and of quiritarian and bonitarian property would render the action unnecessary in the first of these cases and probably in many cases of the second class. In the terms of the edict, Si quis id quod traditur ex justa causa non a domino et nondum usucaptum petet, judicium dabo, Dig. 6, 2, 1, the words 'non a domino,' which limit its application to the second class, were probably intercalated by Justinian. But the action would also be convenient to an actual proprietor who wished to be relieved of the necessity of proving his title.

The form of the actio Publiciana that we have considered proceeds on the supposition of the accomplishment of a non-accomplished usucapio. Some writers, misled by Dig. 44, 35, 7, pr., have imagined the existence of another form of Publiciana, which they call contraria Publicianae or Publiciana rescissoria, proceeding on the supposition that an accomplished usucapio had not been accomplished. But Savigny has shown, § 329, that this is erroneous: that when usucapion is rescinded in Integral Restitution on account of Absence, the action whereby the plaintiff recovers his property may be, according to circumstances, either an ordinary Publiciana or an ordinary Vindicatio, Inst. 4, 6, 5: that the rescission of usucapio, in other words, does not give birth, as supposed, to any new form of action.

§ 38. By a positive rule, of which we are unable to give the rationale [1 § 162, com.], the change of status produced by coemptio and adrogatio extinguished the debts of the wife or adrogatus, and the husband or adrogator acquired by manus and patria potestas their rights without their liabilities. To meet this the praetor gave the creditor an actio rescissoria: Ait praetor: qui quaeve, posteaquam quid cum his actum contractumve sit, capite deminuti deminutaeve esse dicentur, in eos easve quasi id factum non sit judicium dabo, Dig. 4, 5, 2. If the action was not defended by the husband or

adrogator, the praetor gave the creditor missio in possessionem and power of sale against all the property of the wife or adrogatus, Gaius, 3 § 84.

DE PARTIBUS FORMULARUM.

AGERIO DUMTAXAT X MILIA CON-
DEMNA. SI NON PARET ABSOLVITO.

item haec: IUDEX NUMERIUM NEGI-
DIUM AULO AGERIO [X MILIA] CON-
DEMNATO et reliqua, ut non adi-
ciatur....

§ 44. Non tamen istae omnes partes simul inveniuntur, sed quaedam inveniuntur, quaedam non inveniuntur. certe intentio aliquando sola invenitur, sicut in praeiudicialibus formulis, qualis est qua quaeritur aliquis libertus sit, vel quanta dos sit, et aliae complures. demonstratio autem et adiudicatio et condemnatio numquam solae inveniuntur, nihil enim omnino sine intentione vel condemnatione valet; item condemnatio sine [demonstratione_vel] intentione [vel adiudicatione] nullas vires habet, et ob id numquam solae inveniuntur.

condemn Numerius Negidius to pay to Aulus Agerius a sum not exceeding ten thousand sesterces; if it be not proved, pronounce his absolution;' or thus: Such a sum do thou, judex, condemn Numerius Negidius to pay to Aulus Agerius,' et cetera, without naming the sum or fixing a maxi

mum.

§ 44. These parts are not concurrent, but where some are present others are absent. Sometimes the Intentio is found alone, as in the prejudicial formula to decide whether a man is a freedman, or to ascertain the amount of a dower, or to settle other preliminary inquiries. But the Demonstratio, Adjudicatio, and Condemnatio are never found alone, for the Demonstratio is inoperative without an Intentio and Condemnatio, and the Condemnatio is inoperative without an Intentio (or Demonstratio?).

§ 39. Besides the four parts mentioned by Gaius the formula always contained a nomination of a judex, and sometimes an exceptio, praescriptio, or arbitrium, accessory parts which will be presently explained.

$40. The demonstratio seems not to have occurred in real actions nor in personal actions in factum, but in personal actions in jus, whether founded on contract or on tort, excepting perhaps the condictio certi.

If the contract had a technical name (e.g. depositum, venditio) the demonstratio contained the name (deposuit, vendidit); if the contract was nameless, it was described in the demonstratio by a circumlocution, and the action was called actio praescriptis verbis. That a demonstratio was found in actions ex maleficio appears from Gaius, below, § 60, and from Paulus, Collatio, 2, 6. Sicut formula posita est. Quod Auli Agerii pugno mala percussa est: Illud non cogitur dicere, dextra an sinistra, nec qua manu percussa sit. Ita si dicat infamatum se esse, debet adjicere quemadmodum infamatus sit. Sic enim et formula concepta est: Quod Numerius Negidius libellum (or sibilum) immisit Aulo Agerio infamandi causa.

'As

the formula is worded: Whereas Aulus Agerius was struck on the cheek by the fist: the plaintiff is not compelled to declare whether he was struck on the right or left cheek, or whether with the right or left hand. And if he sue for defamation, he must allege the means, for so the formula is framed: Whereas Numerius Negidius (hissed or) published a libel against Aulus Agerius with the purpose of defamation.'

The absence of a demonstratio in the formula of condictio certi may be inferred from the example given by Gaius, § 86, and from the assertion of Cicero, Pro Roscio Comoedo, 4, that it did not appear whether Fannius, who sued Roscius by condictio certi, founded his claim on mutui datio, expensilatio, or stipulatio. He could hardly have asserted this, if the title on which Fannius sued had been expressed in a demonstratio. On the other hand, we have a demonstratio in the condictio incerti, § 136, § 137. It is obvious that if a man sues for an indeterminate sum of money he ought to give the defendant some further information of the cause of action; but if he sues for a determinate sum or a definite thing, the defendant can scarcely be ignorant of the cause of action on which the plaintiff relies.

§ 42. The adjudicatio was only found in the three actions familiae erciscundae, communi dividundo, and finium regundorum. It was not a declaration of existing property, but a transfer of property to one of the litigants from the other. Adjudicatione dominia nanciscimur... nam si judex uni ex heredibus aut sociis aut vicinis rem aliquam adjudicaverit, statim illi adquiritur sive mancipi sive nec mancipi sit, Ulpian, 19, 16. Adjudication is a transfer of dominion, for the successor, partner, landowner, to whom a thing is adjudicated by the judex, forthwith acquires property therein, whether it is mancipable or not mancipable.' In quibus tribus judiciis permittitur judici, rem alicui ex litigatoribus ex aequo et bono adjudicare, et, si unius pars praegravare videbitur, eum invicem certa pecunia alteri condemnare, Inst. 4, 6, 20. In these three actions the judge has the power to assign a thing on reasonable grounds to one of the litigants, and, if he thus obtain more than his share, to condemn him to make pecuniary compensation.'

§ 43. Taxatio [signified by the word 'dumtaxat'] was a limitation to the condemnatio. Besides the kind noticed by Gaius, there were several others. If a paterfamilias was sued for the debt of a

person in his power whom he had authorized to trade, the condemnation was limited to the amount of the peculium (quatenus in peculio est); if the slave or son had traded without authority, it was limited to the amount of profit the father or master had thereby received (quatenus in rem ejus versum est); if the heir of a wrong-doer or fraudulent debtor was sued, it was limited to the amount that he gained from the wrong or fraud by his succession (dumtaxat in id quod ad eum pervenit).

Again some debtors enjoyed a privilege that is called Beneficium competentiae: the privilege of not being condemned to pay the whole amount of their debt but only such an amount as will leave them the means of subsistence (condemnatio in id quod debitor facere potest). A soldier sued by any creditors; a bankrupt who has made cessio bonorum, sued by his original creditors in respect of after-acquired property; a paterfamilias sued by a creditor for a debt incurred when he was a filiusfamilias; an ascendant sued by a descendant; a husband sued by a wife or a wife by a husband before or after divorce for a debt incurred during marriage; a father-in-law sued by a son-in-law for a promised dower; a donor sued by a donee; a partner sued by a partner; were only liable to be condemned in such a sum as would leave them the necessaries of life. The privilege was enforced by Exceptio [?], Dig. 44, 1, 22. It was forfeited by dolus and did not apply to liabilities arising from delict. If a privileged debtor was condemned in the whole amount of his fortune he could claim to have a deduction for his means of subsistence made in the levy of execution.

The obligation of the privileged debtor, however, was not extinguished until his creditor had received full satisfaction, and any after-acquired property of the debtor was liable to the claims of the creditor. Accordingly, at the period when Res judicata operated either ipso jure or per exceptionem to extinguish a right of action, 3 § 180, it was necessary, in order to preserve the creditor's right of subsequent action for the residue, that the judge, as a condition of allowing the Beneficium competentiae, should compel the debtor to enter into a stipulation on which a subsequent suit could be grounded. At a later period, when Res judicata had lost its power of necessary Novation, it was no longer requisite to exact this cautio from the debtor before he was allowed to enjoy the Beneficium competentiae. Vangerow, § 174.