4.1.67 to 4.1.72

(47) In some instances, however, the Prætor permits formulas having reference to either law or fact to be employed; for example, in actions of deposit, and loan for use. The following formula is one of law. "Let So-and-So be judge. Whereas Aulus Agerius deposited a silver table with Numerius Negidius, for which this action is brought, whatever Numerius Negidius is obliged to pay to, or do for, Aulus Agerius, in good faith, on this account, do you, judge, condemn Numerius Negidius to pay to, or do for Aulus Agerius, unless he makes restitution; and, if the case should not be proved, let him be discharged." The following formula: "Let Soand-So be judge. If it appears that Aulus Agerius deposited a silver table with Numerius Negidius, and, through the fraud of the said Numerius Negidius, the said table has not been restored to the said Aulus Agerius, do you, judge, condemn Numerius Negidius to pay to Aulus Agerius a sum of money equal to the value of the property, and if the case is not proved let him be discharged"; is one of fact. Similar formulas are employed in an action of loan for use. (48) The condemnation clause of all formulas has reference to the pecuniary value of the property. Therefore if we claim any corporeal property, for instance, land, a slave, a garment, or gold or silver, the judge condemns the party against whom the suit was brought not to deliver the very thing itself, as was formerly the practice, but its estimated value in money. (49) The judgment clause of the formula either mentions a certain, or an uncertain sum of money. (50) The mention of a certain sum of money, for example, appears in the formula by which we demand the payment of a designated amount; for then the last part of the formula is as follows: "Judge, condemn Numerius Negidius to pay ten thousand sesterces to Aulus Agerius; and if the case is not proved, discharge him." (51) A judgment for an uncertain sum of money has a two-fold signification. In the first instance, it is preceded by some restriction called a limiting clause, as, for instance, where we bring an action for an uncertain amount; for then in the last part of the formula the following words are employed: "Judge, condemn Numerius Negidius to pay not more than ten thousand sesterces to Aulus Agerius; and if the case should not be proved discharge him." If, however, the amount is uncertain, and there is no limit; for instance, where we bring suit for property belonging to us, which is in the possession of another, that is to say, if we institute proceedings for the production of property in court, the following words are used: "Judge, condemn Numerius Negidius to pay to Aulus Agerius a sum of money equal to the value of the property; and if the case is not proved let him be discharged."