Every  wrong  ended  in  that  form  of  compensation  and  was


470


redressed  by  no  other. But  the  cases  were  numerous  in
which  money  did  not  right  the  wrong,  and  its  award  fell
dismally  short  of  justice  to  the  party  injured. Sohra  de-
scribed ten  such  cases. One  or  two  may  be  recalled,  the
better  to  appreciate  the  character  of  the  difficulty,  and
we  choose  for  one  of  them  a  case  in  which  the  sacie  defect
is  perpetuated  in  our  own  actions  at  law. The  owner  of  a
vase  which  has  some  special  value  for  him  because  it  has
been  handed  down  in  the  family  for  generations,  or  of  an
ancestral  portrait  of  which  there  is  no  copy,  is  dispoS"
sessed  by  a  trespasser. The  Roman  plaintiff  sues,  estab-
lishes fully  his  ownership  and  the  wrongful  taking. He
gets  judgment  which  gives  him  not  the  thing  he  has  lost,
but  its  estimated  value  in  a  sum  of  money:  and  when  the
trespasser  pays  that  sum  of  money  he  has  become  by  the
Praetorian  law  owner  of  the  vase  and  portrait,  and  the
true  owner  has  been  deprived  of  his  property,  with  no  way
provided  by.vAiich  he  can  reclaim  it. Just  that  result
follows  the  action  of  replevin  in  our  procedure. The  same
thing  happened  ing!(  many  cases  of  bailment. The  deppsitor
could  not  get  back  his  deposit,  or  the  pledgor  the  article
he  pledged,  but  only  a  sum  of  money  instead  which  might  fall
very  far  short  of  the  value  to  the  owner. The  Praetor  studied
this  defect  for  a  while  and  then  worked  out  asolution  very


471


interesting  for  what  came   of  it   in  the  far  future. By  a
modification  of  the   condemnatio  he   originated  what  was
calle.d  the  actio^  sirbitraria,  which  we  laay  properly  call  the
Eigitable   action,   for  it   underlies   our  whole  modern  system
of  Equitable  procedure. He  acconiplished  this  by  preceding
the   condemnation  with  what  was  called  an  arbitrium,  being  in
substance  an  order   in  the  alternative  for  specific  perforni-
ance. The  Praetor's  formula  began  to  run  thus:     unless  the
thing  wrongfully  taken  is  restored,   condemn. Thus  the
money  judgment  was  made  to  wait  the   outcome  of  the   order
for  restoration. 