BOOK IV. Chapter II. a Sc. adipiscendae possessionis. Comp. Brown, s. 'Fictions.' c lust. fiunt, sed in bonis efficiuntur; ex iure Quiritium autem ita demum adquiruntur, si usuceperunt.' Id. iv. § 145 Bonorum emptori proponitur interdictum quod quidam 'possessorium' vocant.* Ibid. § 35 Bonorum emptor ficto se herede agit, sed interdum et alio modo agere solet: nam ex persona eius cuius bona emerit, sumpta intentione, convertit condemnationem in suam personam, id est ut quod illius esset vel illi dari oporteret, eo nomine adversarius huic condemnetur; quae species actionis appellatur Rutiliana, quia a praetore P. Rutilio, qui et bonorum venditionem introduxisse dicitur, comparata est; superior autem species actionis, qua ficto se herede bonorum emptor agit, Serviana vocatur.3 3 Pap. Imperatores Antoninus et Verus rescripserunt eos, qui bona sua negant iure venisse, praeiudicio experiri debere.-D. 42, 5, 30. Mod. Si debitoris bona venierint, postulantibus creditoribus permittitur rursum eiusdem 3 1 Now neither bon. possessores nor the purchasers of a bankrupt's estate become owners by a fully legal, but it is an equitable title that they acquire, and it is only by their completion of usus that it becomes theirs by Quiritarian Law. 2 An interdict (i.e., to obtain possession) is set forth in the Praetor's Edict in favour of the purchaser of an insolvent's goods, which some call 'possessory.' 3 The purchaser of a bankrupt's estate sues under the fiction that he is heir. But sometimes he sues in another way. For, making out the intentio in the name of the person whose property he has purchased, he turns the condemnatio into his own name; that is to say, that his opponent is to be condemned to make payment to him in respect of what belonged to, or what ought to have been given to, the bankrupt. This form of action is called 'Rutilian,' because it was provided by the Praetor Rutilius, who is also said to have introduced the bonorum venditio. The form of action first mentioned, in which the purchaser of the bankrupt's effects sues under the fiction of heirship, is called 'Servian.' 4 The Empp. Antonine and Verus by rescript directed that persons who dispute the legality of the sale of their property must proceed by a pre-judicial action. bona distrahi, donec suum consequantur.-D. 42, 3, 7. According to later Law, however, the bona debitoris are sold in parcels by a curator bonorum,' and the creditors are satisfied out of the purchase-money, according to the ratio of their claims; but there is also a set of privileged claims which have precedence over all others. Gai. Curator ex senatusconsulto constituitur, cum clara persona (veluti senatoris vel uxoris eius) in ea causa sit, ut eius bona venire debeant : nam ut honestius ex bonis eius quantum potest creditoribus solveretur, curator constituitur distrahendorum bonorum gratia vel a praetore vel in provinciis a praeside.-D. 27, 10, 5.2 BOOK IV. Chapter II. Pap. Imperatores Antoninus et Verus re- a Iust. Inst. iii. 12 pr. Erant. olim et aliae per universitatem successiones; qualis fuerat bonorum emptio, quae de bonis debitoris vendendis per multas ambages fuerat introducta: . . . sed. . . bonorum venditiones exspiraverunt et tantummodo creditoribus datur officio iudicis bona possidere et, prout eis utile visum fuerit, ea disponere.* 1 If a debtor's goods have been sold, upon the application of the creditors, further sales are allowed of the same person's goods, until they realise their own claims. 2 By virtue of a Sctum, a curator is appointed if a notable person (a senator, for example, or his wife) be in such a position that his property has to be sold; for in order that so much as can should be paid to the creditors from the property in a more honourable way, a curator is appointed to sell the property, either by the Praetor or in the provinces by the President. The Empp. Antonine and Verus by rescript directed that after a sale by the curator in accordance with the Sctum, no action upon what has before been done is available to a fraudu. lent debtor. · There were formerly also other kinds of succession to the BOOK IV. Chapter 11. Cf. Blackst. ii. 472-3 (Steph. ii. 147, note); Bell, Dict. s. vv.; Paterson, 8. 1186. b§ 139. e Cf. § 192. a In pursuance of a lex Iulia, the debtor by voluntary surrender of property (cessio bonorum) escapes the infamy that otherwise befalls him—as well as execution against the person-and acquires the 'beneficium competentiae b in respect of after-acquired property. Imp. Alex. Debitores qui bonis cesserint, licet ex ea causa bona eorum venierint, infames non fiunt.-C. 2, 11 (12), 11. Id. Qui bonis cesserint, nisi solidum creditor receperit, non sunt liberati: in eo enim tantum hoc beneficium eis prodest, ne iudicati detrahantur in carcerem.- -C. 7, 71, 1.2 Ulp.: Is qui bonis cessit, si quid postea adquisierit, in quantum facere potest convenitur.— D. 42, 3, 4 pr.3 Paul. Quem poenitet bonis cessisse, potest defendendo se consequi, ne bona eius veneant.1. 5 eod.* Special execution, in opposition to the old Roman spirit, by means of distraint and public sale of single portions of property by subordinates of the magistrate (apparitores), first acquired recognition and development in imperial times, whilst natural execution in actions for restitution, inconsistent with the charac aggregate. Such was the bonorum emptio, which was introduced for selling by a roundabout way the property of debtors; ... but . . . bon. vend. have disappeared, and creditors are only allowed to take possession of the goods under the authority of a iudex, and dispose of them as seems to them expedient. 1 Debtors who have made a surrender of their property do not fall under infamy, although in consequence thereof a sale have taken place of their property. 2 Persons that have made a surrender of their goods are not released unless the creditor has received full satisfaction; for they enjoy this unique benefit, that insolvents are not to be cast into prison. He that has made a surrender of his goods, if he shall afterwards acquire anything, is sued for as much as he can render. He that regrets having made a surrender of his goods, can by showing cause succeed in stopping a sale thereof. BOOK IV. Chapter 11. ter of ordinary proceedings," only indeed belongs to Ulp. :-primo quidem res mobiles et animales pignori capi iubent, mox distrahi; quarum pretium si non suffecerit, etiam soli pignora capi iubent et distrahi: quodsi nulla moventia sint, a pignoribus soli initium faciunt; quodsi nec quae soli sunt sufficiant vel nulla sint soli pignora, tunc pervenietur ad iura: exsequuntur itaque rem iudicatam praesides isto modo. § Si pignora quae capta sunt emptorem non inveniant, rescriptum est ab imperatore nostro et divo patre eius, ut addicantur ipsi, cui quis condemnatus est,... utique ea quantitate quae debetur.1. 15, §§ 2, 3 eod.' 1 The late Emp. Pius issued a rescript in the following terms: Those who shall confess their indebtedness, or shall have to make restitution by virtue of a legal judgment, shall be allowed time for payment; . . . let pledges be taken from those who shall not pay within the term, and, in default of payment within two months, let such things be sold; if there be any surplus from the purchase-moneys, let it be delivered up to him whose pledges were sold.' in the first place they order movables and live stock to be taken in pledge, and then sold; and if the proceeds of the sale of such shall not suffice, they order distraint and sale of lands: but if there are no movables, they begin with a pledge of the land; but if those of the immovable estate do not suffice or none exist, then they will resort to rights; and the presidents, therefore, in that manner execute a judgment. § If the pledges that have been taken do not find a purchaser, by a rescript of our Emp. and his deceased father, the debtors themselves shall be adjudicated to the person in whose favour the condemna Boos IV. Chapter 11. a? Inst. Ulp. Qui restituere iussus iudici non paret contendens non posse restituere, si quidem habeat rem, manu militari officio iudicis ab eo possessio transfertur.-D. 6, 1, 68.1 $205. LEGAL REMEDIES. An appeal (appellatio, provocatio), with regulated series of instances and of reformatory character, first obtained in the sphere of the 'ius extraordinarium,' It is question- in imperial times. It went-except as to special able whether with restric tion to extraordinariae cognitiones. jurisdictions-from the iudex to the magistrate with jurisdiction, to the judge delegated by the Emperor, and, so far as an appeal lay from such judge (as the praefectus praetorio), to the Emperor himself. Ulp. Appellandi usus quam sit frequens quamque necessarius, nemo est qui nesciat, quippe cum iniquitatem iudicantium vel imperitiam recorrigat: licet, nonnumquam bene latas sententias in peius reformet.-D. 49, I, I pr.2 The putting in of an appeal (1) must take place at once verbally, or within a short interval (dies fatales) in a written form (libelli appellatorii); it has a suspensive effect as regards the judgment pronounced, and is attended by a penalty for vexatious litigation. Ulp. Biduum vel triduum appellationis ex die sententiae latae computandum erit.—In propria causa biduum accipitur.-Quare procura tion was, 1 When a person does not comply with the order of the iudex to make restitution, and maintains that he cannot make resti. tution, if he in fact have the thing, the possession is by armed force transferred from him by the authority of the iudex. Every one is aware how common and how needful is the custom of appeal, from the fact that it repairs the unfairness or unskilfulness of judges, although sometimes it alters for the worse judgments well pronounced. |