4.1.45 to 4.1.48

(29) In all these instances the property was seized by the employment of certain words; and, on this account, it was held by most authorities that this proceeding was also a form of statute process. Others, however, were of the contrary opinion; first, because it took place out of court, that is to say, not in presence of the Prætor, and usually also during the absence of the adverse party; while, on the other hand, other actions could not be made use of by any one except in the presence of both the Prætor, and the adverse party, and besides property could not be distrained on an unlawful day, that is to say, on one when it was not permitted to act under the law. (30) All these forms of judicial procedure, however, gradually became unpopular on account of the extreme subtlety of the ancient legal authorities, so that the result was that anyone who committed the slightest error lost his case. Hence, by the Lex Æbutia and the two Leges Julia ,proceedings under this law were abolished, and another form was substituted for them; so that at present in litigation we make use of written instructions, that is to say, formulas, for that purpose. (31) In only two instances was permission granted to act under the ancient procedure, that is to say, those of threatened injury, and those before the Centumviral Tribunal. When application is made to the Centumviri ,proceedings are first instituted by the deposit of forfeits before the Urban or the Foreign Prætor; but in the case of threatened injury, no one wishes to employ the ancient procedure, but prefers to bind his adversary by a stipulation provided for in the Edict; by which means his rights are more conveniently and thoroughly protected. By the seizure of property as security for debt . . . . [1] it is apparent.