The Ancient Library

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the laws of the Twelve Tables, was in effect a dragging of the defendant before the praetor if he refused to go quietly. This rude proceeding was modified in later times, and in many cases there could be no in jus vocatio at all, and in other cases it was necessary to obtain the praetor's per­mission under pain of a penalty. It was also established that a man could not be dragged from his own house ; but if a man kept his house to avoid, as we should say, being served with a writ, he ran the risk of a kind of sequestration (actor in bona mittebatur). The object of these rules was to make the defendant appear before the competent jurisdiction ; the device of entering an appearance for the defendant does not seem to have suggested itself to the Roman lawyers. (Dig. 2. tit. 4.) Jf the defendant would not go quietly, the plaintiff called on any bystander to witness (antestari) that he had been duly summoned, touched the ear of the witness, and dragged the defendant into court. (Hor. Serm. i. 9. 75—78 ; Plautus, Curcul. v. 2.) The parties might settle their dispute on their way to the court, or the de­fendant might be bailed by a vindex. (Cic. Top. 2 ; Gaius, iv. 46; Gellius, xvi. 10.) The vindex must not be confounded with the vades. This settlement of disputes on the way was called trans-actio in via., and serves to explain a passage in St. Matthew (v. 25).*

When before the praetor, the parties were said jure agere. The plaintiff then prayed for an ac­tion, and if the praetor allowed it (dabat actionein), he then declared what action he intended to bring against the defendant, which was called edere actionem. This might be done in writing, or orally, or by the plaintiff taking the defendant to the album, and showing him which action he in­tended to rely on. (Dig. 2. tit. 13.) As the formulae comprehended, or were supposed to com­prehend, every possible form of action that could be required by a plaintiff, it was presumed that he could find among all the formulae some one which was adapted to his case, and he was accordingly supposed to be without excuse if he did not take pains to select the proper formula. (Cic. Pro Ros. Com. c. 8.) If he took the wrong one, or if he claimed more than his due, he lost his cause (causa cadebat, Cic.DeOrat. i. 36) ; but the praetor some­times gave him leave to amend his claim or intentio. (Gaius, iv. 53, &c.) If, for example, the contract between the parties was for something in genere, and the plaintiff claimed something in specie, he lost his action: thus the contract might be, that the defendant undertook to sell the plaintiff a quantity of dye-stuff or a slave; if the plaintiff claimed Tyrian purple, or a particular slave, his action was bad; therefore, says Gaius, according to the terms of the contract so ought the claim of the intentio to be. As the formulae were so numer­ous and comprehensive, the plaintiff had only to select the formula which he supposed to be suitable to his case, and it would require no further varia­tion than the insertion of the names of the parties and of the thing claimed, or the subject-matter of the suit, with the amount of damages, &c., as the case might be. When the praetor had granted an action, the plaintiff required the defendant to give

* It is not easy to state correctly the changes in procedure which took place after the abolition of the legitimae actiones. Compare Gains iv. 25, 46.



security for his appearance before the praetor (in jure) on a day named, commonly the day but one after the in. jus vocatio, unless the matter in dispute was settled at once. The defendant, on finding a surety, was said vades dare (Hor. Serm. I. i. 11), vadimonium promittere, or facere; the surety, vas, was said spondere; the plaintiff when satisfied with the surety was said, vadari reum, to let him go on his sureties, or to have sureties from him. When the defendant promised to appear injure on the day named, without giving any surety, this was called vadimonium purum. In some cases recu-peratores were named, who, in case of the de­fendant making default, condemned him in the sum of money named in the vadimonium.

If the defendant appeared on the day appointed, he was said vadimonium sistere ; if he did not ap­pear, he was said vadimonium deseruisse, and the praetor gave to the plaintiff the bonorum possessio. (Hor. Serm. i. 9. 36—41; Cic. Pro P. Quintio, c. 6.) Both parties, on the day appointed, were summoned by a crier (praeco), when the plaintiff made his claim or demand, which was very briefly expressed, and may be considered as corresponding to our declaration at law.

The defendant might either deny the plaintiff's claim, or he might reply to it by a plea, exceptio. If he simply denied the plaintiff's claim, the cause was at issue, and a judex might be demanded. The forms of the exceptio also were contained in the praetor's edict, or upon hearing the facts the praetor adapted the plea to the case. The exceptio was the defendant's defence, and was often merely an equitable answer or plea to the plaintiff's legal demand. The plaintiff might claim a thing upon his contract with the defendant, and the defendant might not deny the contract, but might put in a plea of fraud (dolus malus), or that he had been constrained to come to such agreement. The exceptio was in effect something which negatived the plaintiff's demand, and it was expressed by a negative clause: thus, if the defendant asserted that the plaintiff fraudulently claimed a sum of money which he had not given to the defendant, the ex­ceptio would run thus : 8i in ea re niltil dolo malo Auli Agerii factum sit neque fiat. Though the exceptio proceeded from the defendant, it was ex­pressed in this form, in order to be adapted for insertion in the formula, and to render the con-demnatio subject to the condition.

Exceptions were peremptoriae or dilatoriae. Peremptory exceptions were a complete and per­petual answer to the plaintiff's demand, such as an exceptio of dolus malus, or of res judicata. Dilatory exceptions were, as the name imports, merely calculated to delay the plaintiff's demand ; as, for instance, by showing that the debt or duty claimed was not yet due. Gaius considers the ex­ceptio litis dividuae and rei residuae (iv. 122) as belonging to this class. If a plaintiff prosecuted his action after a dilatory exception, he lost alto­gether his right of action. There might be dilatory exceptions also to the person of the plaintiff, of which class is the exceptio cognitoria, by which the defendant objects either that the plaintiff is not mtitled to sue by a cognitor, or that the cognitor whom he had named was not qualified to act as a cognitor. If the exception was allowed, the plaintiff could either sue himself, or name a proper cognitor, as the case might be. If a defendant neglected to take advantage of a peremptory exceptio, the praetor

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