The Ancient Library

Scanned text contains errors.



might afterwards give him permission to. avail him­self of it; whether he could do the same in the case of a dilatory was a doubtful question. (Gaius, iv. 125.)

The plaintiff might reply to the defendant's eoc-ceptio, for the defendant by putting in his plea be­came an actor. [actor.] The defendant's plea might be good, and a complete answer to the plain­tiff's demand, and yet the plaintiff might allege something that would be an answer to the plea. Thus, in the example given by Gaius (iv. 126), if an argentarius claimed the price of a thing sold by auction, the defendant might put in a plea, which, when inserted in the formula, would be of this shape:-— Ut ita demum emptor damnetur, si ei res guam emerit, tradita sit; and this would be in form a good plea. But if the conditions of sale were that the article should not be handed to the purchaser before the money was paid, the argentarius might put in a replicatio in this shape : — Nisi praedictum est ne aliter emptori res traderetur quam si pretium emptor solver it. If the defendant answered the replicatio^ his answer was called duplicatio ; and the parties might go on to the triplicatio and quadrupli-catio, and even further, if the matters in question were such that they could not otherwise be brought to an issue.

Thepraescriptio, which, was so called from being written at the head or beginning of the formula, was adapted for the protection of the plaintiff in certain cases. (Gaius, iv. 130, &c.; Cic. De Orat. i. 37.) For instance, if the defendant was bound to make to the plaintiff a certain fixed payment yearly or monthly, the plaintiff had a good cause of action for all the sums of money already due; but in order to avoid making his demand for the future payments not yet due, it was necessary to use a praescription of the following form: — Ea res agatur cujus rei diesfuit.

A person might maintain or defend an action by his cognitor or procurator, or, as we should say, by his attorney. The plaintiff and defendant used a certain form of words in appointing a cognitor, and it would appear that the appointment was made in the presence of both parties. The cognitor needed not to be present, and his appointment was com­plete when by his acts he had signified his assent. (Cic. Pro Q. Roscio, c. 2 ; Hor. Serin, i. 5. 35.) No form of words was necessary for appointing a procurator, and he might be appointed without the knowledge of the opposite party.

In many cases both plaintiff and defendant might be required to give security (satisdare} ; for instance, in the case of an actio in rein, the de­fendant who was in possession was required to give security, in order that if he lost his cause and did not restore the thing, nor pay its estimated value, the plaintiff might have an action against him or his sureties. When the actio in rein was prosecuted by the formula petitoria, that stipidatio was made which was called judicatum solvi. As to its prosecution by the sponsio, see sponsio and centumviri. If the plaintiff sued in his own name, he gave no security ; nor was a,ny security required, if a cognitor sued for him, either from the cognitor or the plaintiff himself, for the cog­nitor was personally liable. But if a procurator acted for him, he was obliged to give security that the plaintiff would adopt his acts ; for the plaintiff was not prevented from bringing another action when a procurator .acted for him. Tutors and


curators generally gave security like procurators. In the case of an actio in personam, the same rules applied to the plaintiff as in the actio in rem. If the defendant appeared by a cognitor, the defendant had to give security; if by a procurator, the pro­curator had to give security.

When the cause was brought to an issue, a judex or judices might be demanded of the praetor who named or appointed a judex and delivered to him the formula which contained his instructions. The judices were said dari or addict. So far the proceedings were said to be in jure • the prosecu­tion of the actio before the judex requires a separate discussion. [JuDiciUM.]

The following is an example of a formula taken from Gaius (iv. 47) : — Judex esto. Si paret Aulum Agerium apud Numerium Negidium mensam anjenteam deposuisse eamque dolo malo Numerii Ndyidii Aulo Agerio redditam non essc quanti ea> res erit tantam pecuniamjudeoc Numerium Negidium Aido Agerio condemnato : si non paret, absolvito.

The nature of the formula, however, will be better understood from the following analysis of it by Gains : — It consisted of four parts, the demon-siratio, intentio, adjudicatio, condemnatio. The demonstratio is that part of the formula which explains what the subject-matter of the action is. For instance, if the subject-matter be a slave sold, the demonstratio would run thus: — Quod Aldus Agerius Ntimerio Negidio liominem vendidit. The intentio contains the claim or demand of the plaintiff: —Si paret hominem ex jure QniritiumAuli Agerii esse. The adjudicatio is that part of the formula which gives the judex authority to adju­dicate the thing which is the subject of dispute to one or other of the litigant parties. If the action be among partners for dividing that which belongs to them all, the adjudication would run thus: — Quantum adjudicari oportet judex Titio adjudicato. The condemnatio is that part of the formula which gives the judex authority to condemn the de­fendant in a sum of money, or to acquit him: for example, Judex Numerium Negidium Aulo Agerio sestertium milia condemna: si non paret, absolve. Sometimes the intentio alone was requisite, as in the formulae called praejudiciales (which some modern writers make a class of actions), in which the matter for inquiry was, whether a certain person was a freedmari, what was the amount of ados, and other similar questions, when a fact solely was the thing to be ascertained.

Whenever the formula contained the condem-natio, it was framed with the view to pecuniary damages; and accordingl}7", even when the plaintiff claimed a particular thing, the judex did not adjudge the defendant to give the thing, as was the ancient practice at Rome, but condemned him in a sum of money equivalent to the value of the thing. The formula might either name a fixed sum, or leave the estimation of the value of the thing to the judex, who in all cases, however, was bound to name a definite sum in the condemnation.

The formula then contained the pleadings, cr the statements and counter-statements, of the plaintiff and the defendant; for the intentio, as we have seen, was the plaintiff's declaration; and if this was met by a plea, it was necessary that this also should be inserted in the formula. The formula also contained the directions for the judex, and gave him the power to act. The English and Roman procedure are severally stated in Mr.

About | First | English Index | Classified Index | Latin Index | Greek Index



page #  
Search this site
All non-public domain material, including introductions, markup, and OCR © 2005 Tim Spalding.
Ancient Library was developed and hosted by Tim Spalding of