The execution of judgement

By contrast with the position adopted under the formulary system, in the cognitio extra ordinem the judge could order the defendant to return the property claimed to the party who won the case, and the latter could rely on the coercive power of the court to ensure that this was done {manu militari)*¹ Where the judgement was for money, the execution could be carried out against the debtor's person or property.

If the execution was carried out against the debtor's person, the latter was usually confined in a public prison - confinement in a private prison, as was the case in earlier ages, was now clearly forbidden.^[1219] [1220] [1221] This method of execution was, however, relatively rare as, in most cases, the execution was carried out against the debtor's property. In the latter case property belonging to the debtor was seized by court officials {excecutores) to be kept as a pledge {pignus in iudicati causa captum) and, if the debtor did not comply with the court's decision within two months, it was sold off for the benefit of the creditor.^[1222] Movables were sold first, then immovable property; if these were not sufficient to cover the debt, then any credits which the debtor may have had were taken in execution and sold.^[1223] Each piece of property was sold separately and what was left after the payment of the debt was returned to the debtor. Where there were several creditors the entire property of the insolvent debtor was sold, item by item (distractio bonoruni), at an auction organised by the person appointed as administrator of the debtor's estate (curator bonoruni). To avoid the infamy which the compulsory sale of his property entailed, the insolvent debtor could seek the permission of the court to surrender his property to the creditors (cessio bonoruni)?²