BOOK he must prove what and how much he was entitled to1. IV. Petitio utilis. testamenti. In the case of bonorum possessores the Prætor granted the petitio utilis against such as wrongfully detained the property. The same remedy was also available in the case of the emptor hereditatis. Querela 6. Querela inofficiosi testamenti. We have inoficiosi already seen3 that this action arose from the equitable coercion of the latitude given to testators by the 12 Tables: uti legassit ita jus esto. The validity of a will, as to its execution jure civili, was not allowed to prevail against the equity of the Prætor's court; and wherever children were disinherited without any just cause assigned, the will was said to be inofficiosum*; and this action was competent to them for the purpose of obtaining their pars legitima, or Falcidian portion. The testament in question must be in every respect legally executed, otherwise it might be treated as a nullity. The action lay reciprocally for the paaction lay. rent against the child, as well as for the child against the parents. This was an action strictly confined to relations, but it did not extend beyond brothers and sisters. Adopted and posthumous children could avail themselves of it; but the action would lie in no case where there was a remedy at law. The action was against the heir or heirs instituted in the testament. Against whom the Actio Serviana. 7. Actio Serviana is a remedy given to landlords for the recovery of rent in arrear. The stock and crop of the colonus were considered as tacit pledges for the rent; and this action gave the landlord the right of distraint for rent in arrear1. This action was necessary, because the owner not having the dominium plenum after he had let his estate, could not bring the actio vindicationis. 1 D. v. 4. I. I. 3 Book II. chap. 6. * D. v. 2. I. 2 D. v. 5. 1. and 2. 7 I. IV. 6. 7. 6 I. II. 18. I. V. 8. Quasi Serviana, called hypothecaria, gave CHAP. to creditors in general the right of selling a pignus, or of seizing and disposing of a hypotheca in satis- Quasi Serfaction of their debts1. viana. 9. Actiones præjudiciales are actiones in rem; Actio præper quas quæritur an aliquis liber an libertus sit, judicialis. vel servus; vel de partu agnoscendo. The title præjudiciales is given them because they contain Why so a præjudicium, a precedent question which has called. been raised, and which must be disposed of before the main action can be proceeded with, e.g. the existence of the patria potestas might be denied in an action, and it would therefore become necessary to settle this preliminary issue before proceeding with the main action. This action is analogous to the demurrer of the English law. The first of these actions was ex liberali causa. In one case, Ex libehe who was treated as a slave asserted his liberty; in the other, he who was suing or defending himself was challenged as a slave. Here the main action must halt till the preliminary objection had been disposed of3. This action also lay where a man, being ingenuus, claim was laid to him by some one as being his libertus. rali causa. do. Secondly, de partu agnoscendo. This action had De partu a twofold object, first, compelling the father to agnoscenprovide for (agnoscere) his legitimate child; and, secondly, the prevention of the imposition of a spurious heir. Here the questions were raised, I. whether the child were begotten by the husband who had divorced the mother; and, 2. whether the woman was pregnant at all. 4 By the sctum Plancianum a woman who has been divorced, if in a state of pregnancy, must announce the fact to her late husband or his family within thirty days, when they may send persons ad inspiciendum ventrem, and custodes, to take De ventre charge of the child. In case of the death of the endo. inspici IV. BOOK husband, should the widow claim possession of his estate, ventris nomine, on behalf of an alleged forthcoming child as heir to its deceased father, two questions arise: pregnancy or no pregnancy, legitimacy or illegitimacy. The Prætor's edict is very precise on these points; she is bound to take up her residence in domo honestissimæ fœminæ quam ego constituam; and she is to be duly inspected twice a month by mulieres libera duntaxat quinque, who must all make inspection at the same time; and full directions are given for the accouchement, and for the subsequent care of the child'. 1 D. XXV. 4. I. 10. WE now come to the consideration of condic tiones, or personal actions, which Ulpian defines thus: In personam actio est qua cum eo agimus Condictio. qui obligatus est nobis ad faciendum aliquid vel Definition. dandum1. With few exceptions these are bonæ 1 D. XLIV. 7. 25. The reader is requested to refer to the contracts whence these actions arise, Book III. ch. 5. IV. BOOK fidei, or arbitrariæ; the difference between which and actions stricti juris has been briefly noticed at Bonae fidei the beginning of the last chapter. It may be and Arbi here remarked, that their origin and establishment trariæ. Ex mutuo. Commodati. is to be referred to the departure from the strictum jus of the early period, and the gradual growth of equity under the Prætor; for as he in assigning actions to the suitors exercised equity in its largest sense, it became necessary for carrying out this principle that he should also delegate it to those who were to try the causes, who were in fact his representatives, and therefore the formula in each case always exhibited the discretionary power and latitude vested in the judex. Justinian mentions the actiones bonæ fidei1; but these are not to be considered as comprehending all which come under that head. It will be convenient to consider actions in the same order as we have done the contracts out of which they arise; and we will therefore begin with those founded on nominate contracts, the first of which are real contracts. To avoid repetition, the reader is requested to observe that these actions lie for and against the heredes, or representatives, of the contracting parties, unless the contrary be mentioned. 1. Condictio, certi ex mutuo. On the receipt of a mutuum2 the property of the res mutuata immediately vests in the borrower, and he becomes liable at all events for the restoration of the property, or its value, not excepting accidents. This action is in personam, and stricti juris. 2. Commodati, directa et contraria. This is an action civilis and bona fidei. It is competent to the owner of the property for the recovery of the thing lent, together with damages occasioned by negligence, against the borrower. The action also lies against the lender to recover any expenses |