ipulation, when employed for the recovery of a dowry. The former
action being thus by a judicious reform abolished, that on stipulation,
by which it has been replaced, has deservedly been invested with all
the characteristics of an equitable action, so far as and whenever it is
brought for the recovery of a dowry. We have also given persons entitled
to sue for such recovery a tacit hypothec over the husband's property,
but this right is not to give any priority over other hypothecary
creditors except where it is the wife herself who sues to recover
her dowry; it being in her interest only that we have made this new
provision.

30 In equitable actions the judge has full power to assess on good and
fair grounds the amount due to the plaintiff, and in so doing to take
into account counterclaims of the defendant, condemning the latter only
in the balance. Even in actions of strict law counterclaims have been
permitted since a rescript of the Emperor Marcus, the defendant meeting
the plaintiff's claim by a plea of fraud. By our constitution, however,
a wider field has been given to the principle of setoff, when the
counterclaim is clearly established, the amount claimed in the
plaintiff's action, whether real or personal, or whatever its nature,
being reduced by operation of law to the extent of the defendant's
counterclaim. The only exception to this rule is the action on deposit,
against which we have deemed it no less than dishonest to allow any
counterclaim to be set up; for if this were permitted persons might
be fraudulently prevented from recovering property deposited under the
pretence of a setoff.

31 There are some actions again which we call arbitrary, because their
issue depends on an 'arbitrium' or order of the judge. Here, unless on
such order the defendant satisfies the plaintiff's claim by restoring or
producing the property, or by performing his obligation, or in a noxal
action by surrendering the guilty slave, he ought to be condemned. Some
of such actions are real, others personal. The former are exemplified
by the Publician action, the Servian action for the recovery of a tenant
farmer's stock, and the quasi-Servian or socalled hypothecary action;
the latter by the actions on intimidation and on fraud, by that for the
recovery of a thing promised at a particular place, and by the action
claiming production of property. In all these actions, and others of a
similar nature, the judge has full power to dete