The Ancient Library

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upwards ; and in cases of smaller value it was fifty asses. This was a provision of the XII. Tables ; but if a man's freedom (libertas) was in issue, the poena was only fifty asses.

If the property claimed was a piece of land, the claimants appeared In jure and challenged each other to go on the land in the presence of witnesses (superstites, Festus, s. v.; Cic. pro Murena, 12), where each made his claim. In the time of the Twelve Tables says Gellius (xx. 10) the Magis-tratus who presided in the court accompanied the parties to the land in order to perfect the process in jure ; but this mode of procedure, which might do in very early times and within a small territory, must have become inconvenient. Accordingly it became the practice for one of the claimants to go through the form of ejecting the other from the land, which was called the Vis Civilis. (Com­pare Gellius, xx* 10 ; Cic. pro Caecina, 1, 7, 32, pro Tullio, 20.) In course of time it became the practice to bring into court a clod of earth, or a bit of a column, as a sign of the thing ; and even in the case of moveable objects, a part was often brought into court to represent the whole j and the Vindicatio was made as if the whole thing was there. It seems that the process might also be begun by the parties performing the ceremony of the Deductio on the ground before they came In jus, where however they performed the fiction of going to the premises and returning. The change in the form of procedure, which change was accom­plished "contra DuodecimTabulas, tacitoconsensu," led to the phrase ^ ex jure mannm conserere'' (Gell. xx. 10), which is explained thus: one party called the other out of court (ex jure) "ad con-serendam manum in rem de qua agebatur:" the parties, he says, then went together to the land in dispute, and brought a clod of earth from it, " in jus in urbem ad Praetorem ;" and the clod of earth was viewed as the whole " ager."

When the Legis Actiones fell into disuse^ the process of the Vindicatio was altered and became that of the Sponsio. The term Sponsio is best ex­plained by giving the substance of a passage in Gains (iv. 91, &c.). In the case of anactio in rem, a man might proceed either Per formulam petito-riam, in which the Intentio of the plaintiff was, that a certain thing was his property ; or he might proceed Per sponsionem which did not contain such an Intentio. The defendant was challenged to a Sponsio in such terms as these: " Si homo quo de agitur ex jure Quiritiurri mens est sestertios xxv. Nuinmos dare spondes?" The Intentio in the formula was that if the slave belonged to the plaintiff, the sum of money contained in the Spon­sio ought to be paid to the plaintiff (sponsionis summam actori dart debere). The Sponsio evi­dently took its name from the verb Spondeo. If the plaintiff proved the slave to be his property, he was in titled to a judgment. Yet the sum of mo­ney was not paid, though it was the object of the Intentio, for^ says Gaius, "it is not poenalis, but praejudicialis., and the sponsio is introduced merely us a means of trying the right to the property, and this explains why the defendant has no restipula-tio.'* The sponsio was said to be "pro praede litis et vindiciarum," because it took the place of the praediuni, which when the Legis actiones were in use^ was given "pro lite et vindiciis," that is, "• pro re et fructibus" by the possessor to the plain­tiff. [PiiAEJUDictuM ;



This Sponsio Praejudicialis was merely a tech--nical mode of converting an actio in rem into an actio in personam, and we must suppose that there was some good reason for the practice. It might be conjectured that it was introduced in order to obviate the trouble and difficulties attendant on the old process of the Vindicatio.

From the expression of Gaius, it appears that there was also a Sponsio Poenalis^ that is both the defendant made a sponsio and the plaintiff made a restipulatio. Thus in the case of " certa pecunia credita,,'* the defendant's sponsio was made at the risk of losing the sum, if he could not sustain his denial of the plaintiff's claim ; and the plaintiff's restipulatio was made at the like risk if he could not support his claim. The poena of the Sponsio and restipulatio belonged to the successful party. (Gaius, iv. 13.) There was also a Poenalis sponsio in the case of Interdicts (Gaius, iv. 141, 165, &c.), and Pecunia Constituta. In the case of Certa Pecunia the sponsio was to the amount of one-third of the sum demanded, which was called legitima pars. (Cic. pro Rose. Com. 4, 5.) In the case of Constituta Pecunia the sponsio was to the amount of one-half. (Gaius, iv. 171.) These stipulationes were fixed by law j in other cases they were fixed by the Edict.

These sponsiones were introduced probably partly with a view to check litigation, and partly with a view to give compensation to the party who ulti­mately obtained a verdict; for otherwise there do not appear in the Roman law to be any direct pro­visions as to the costs of suits. Thus Gaius (iv. 174) enumerates four modes in which the Actoris calumnia is checked ; the Calumniae judicium, Contrarium judicium, Jusjurandum, and the Resti­pulatio. The Restipulatio, he says, "is allowed in certain cases ; and as in the Contrarium judicium the plaintiff has in all cases judgment against him, if he cannot sustain his case, and it matters not whether or not he knows that his claim was not good, so in all cases the plaintiff (that is if he can­not sustain his case) is condemned in the penalty of the restipulatio."

As to the form of the Sponsio the passage of Gaius already referred to is an example ; and there is another in the oration of Cicero, pro P. Quin-tio (8. 27). The use of the word Si or Ni in the Sponsio would depend on the fact which was af­firmed or rather on the mode of affirmation and the party affirming. Cicero (pro Caecin^ 23) al­ludes to the Use of these words (sive^ nine], Bris-sonius (de Formulis, &c. v. 7. p. 348) has collected instances of them.

The other mode of procedure in the ease of Vin­dicatio, that was in use after the Legis Actiones fell into disuse was, Per Formulam Petitoriam, in which the plaintiff (actor) claimed the thing as his property (intendit rem suam esse). In this form of proceeding there was the Stipnlatio called Judiea-tum solvi, by which the defendant engaged to obey the decree of the Judex. (Gaius, iv. 91.) This formula was adapted also to the cases of Praetorian ownership and the Actio Publiciana. (Gaius, iv* 34, 36.) In cases which were brought before the Centumviri, it was the practice* at least in the Imperial period, to come first before the Praetor Urbanus or Peregrinus in order that the matter might be put in the old form of the Saeramentum. (Gaius, iv. 31, 95 ; Gell. xx. 10.)

An hereditas was sued for like any other thing

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