JUDEX (Lat.). In Old English Law. A juror. Spelman, Gloss. A judge, in modern sense, especially—as opposed to justiciarius, is e. a common-law judge—to denote an ec clesiastical judge. Bracton, fol. 401, 402.
In Roman Law. One who, either in his own right or by appointment of the magis trate for the special case, judged causes.
' Thus, the praetor was formerly called judex. But, 'generally, prntors and magistrates Who judge Of their own right were distinguished from judices, who were private persons, appointed by the praetor, on application of the plaintiff, to try the cause, as soon as issue was joined, and furnished by him with instructions as to the legal principles involved. They were variously called judices delegati, or pedattei, or epeciales. It Lai said that they resembled in many respects jurors: thus, both are private.imrsons,.brought in at a certain stage of the proceedings, viz., issue joined, to try the cause, under instructions from the judge as to the law of the case. But civilians are net' clear whether the judices had to decide the fact alone, or the law and fact. The judex resembles in many respects the arbitrator, or arbiter, the chief differences being, fir et, that the latter is appointed in cases of trust and confidence, the former in cases where the rela tions of the parties are governed by strict law (in pactionibue strictis); second, the latter has the Whole control of cases, and decides according to equity and good conscience, the former by strict formula); third, that the latter may be a magis trate, the former must be a private person ; fourth, that the 'award of the arbiter derives its force from. the agreement of submission, while the decree of the judex has Its sanction in the command of the praetor to try the cause; Calvinue, Lex. ; 1 Spence, Eq. Jur. 210, note ; Mackeldey, Civ. Law, Kauf mann ed. § 193, note.
It has been said that there was generally one judex, sometimes three, in which case the decision of two, in the absence of the third, had no effect; Calvinus, Lex. But' another careful writer says that "although there could never be more than one judex, there were sometimes several arbitri, but the arbiter was chosen from the same class as the judex." Sand. Inet. Just.' Introd.
Down to the time of handing over the cause to Nam, that is, till issue joined, the proceeding were before the' praetor, and were said to be in jure; after that before the judex, and were said to te in judicio. • In all this we see the germ of the Anglo-Saxon ayst,em of judicature; 1 Spence, Eq. Jur. 67. _ A judge who conducted the trial from beginning to end; magistratue. The prac tice of calling in judices was disused before Justinian's time: therefore, in the Code, Institutes, and Novels, judex means judge in its modern sense. Heineccius, Elem. Jur. Civ..§ 1327. .
The term judex Is used with very different sig nifications at different periods of Roman Jew. The distinctive features of the position of the Judas belong to the earlier history of the Roman law. A recent writer defines very clearly the functions of the judex at that period as distinguished from those of the magistrate: "In the earlier history of civil procedure in Rome, we find two sharply de fined divisions,—the proceedings which were said to be in jure, and those which were in judieio. The former took 'place before the magistrate, who rep resented officially the judicial power of the State. This magistrate in this capacity decided, in tha first instance, whether the claim of the complaining party was cognizable at all,—whether there was any form of procedure by which it could be enforced. If it was controverted, and there seemed to be any action that would fit the case, the litie contestatio was formed,, by a solemn appeal addressed by each party to his witnesses, and the controversy was then referred to the judex, or •n some cases to a body or college of judices. The judices were not magis trates, and did not represent the power of the State. They were, it would seem, more in theory like referees. , They took up the issue which had been stated by the magistrate; heard the testimony, and pronounced the sententia, and this finding was afterwards enforced by the magistrate." Howe, Studies in Civ. L. 246.