discharged himself by so doing, alienated for ever his property in the slave. The person to whom the thing was abandoned became proprietor; but the Prætor compelled him to enfranchise the slave, if such slave obtained money and made compensation for the wrong (damnum resarcierit), i.e., by producing a sum equal to the condemnatio awarded for the same. The reason of which must be that, the damage being thus repaired, there was no ground upon which the master could retain a power acquired only by reason of such damage.

§ 5. The actio noxalis was granted against the person in possession of the slave at the time of the litis contestatio: for the actio noxalis follows the guilty caput (1). If, therefore, your slave has committed a wrong, the action is against you so long as he continues under your power (potestas), but the moment he comes under the power of another, that other is the person against whom the action should be brought. When the slave is a freedman, he is himself directly liable, and the action is no longer noxalis (extinguitur noxæ deditio). Vice versa, a direct action may become noxalis: for suppose a free man commits a wrong and then becomes a slave (B. 1, t. 3), his master will then be liable in an actio noralis, whereas before such change of status the action must have been directa.

§ 6. But the wrong committed by a slave against his master raises no action against such slave: for there can be no obligation (2) between the master and the slave subject to his power. Thus, even when the slave becomes free, or comes under the power of another, no suit can be brought, either directly against the slave or by actio noxalis against his new master. Therefore, if the slave of another man, after being guilty of a wrong to me, happens to come under my power, the action is extinguished (intercidit), because the circumstances are such as to negative the possibility of an action existing. In like manner, if a master do any wrong to his slave, such slave, even though enfranchised or alienated, can bring no action.

§ 7. Formerly a pater-familias was subject to an actio noxalis on account of wrongs committed by his son: but the pater-familias' right to abandon his son, and especially his daughter, to the person who had suffered damage, ceased with the progress of civilization, so that under the later law actiones noxales were used only in case of slaves. Permission, however, was given to sue directly the filius-familias who committed the wrong and when condemned, an action de peculio was allowed against the father for the condemnatio decreed against the son (B. 1, t. 9; B, 4, t. 6).

(1) Here is a personal action, quæ caput sequitur, a proof that the characteristic of real actions does not consist in the fact that they are granted against every pos

sessor.

(2) Nulla obligatio, ie., no civil obligation.

TITLE IX.-OF THE ACTION ARISING FROM DAMAGE OCCASIONED BY A

QUADRUPED.

Pr. When any four-footed animal, contrary to the natural habits of its species (1), causes damage without having been urged on by any person (2), the law of the Twelve Tables allows the actio noxalis de pauperie against the owner of the animal, by which he is bound to pay the amount of the damage or to deliver up the animal, in satisfaction of the damage (si noxæ dedantur).-Pauperies denotes the damage caused without any wrong on the part of that which occasioned it (sine injuria). Now there can be no wrong on the part of an animal which is devoid of intelligence.

§ 1. The Edict of the Ediles contains certain provisions intended to prevent damage by dangerous animals. Thus, that Edict forbids any person having on the public way a dog, a wild boar, a bear, or any other animal likely to do injury, whether from being left free, or from being so tied up as not to be incapable of causing damage. If that Edict was disobeyed, and a free man was killed, the proprietor was condemned to pay 200 solidi; but if such free man was only wounded, the amount of the condemnatio was settled by the judex; in all other cases of damage the penalty was double the injury. This penalty might be sued for independently of the action de pauperie; for, says Justinian, when several different actions, especially penal actions, may be brought on account of the same thing, the employment of one does not exclude the employment of another (alia aliam consumit) (3).

(1) E.g. (Pr.), when a restive horse kicks, or when an ox inflicts an injury with its horns. The law of the Twelve Tables allowed no action de pauperie when the animal inflicted the damage from the natural ferocity of its nature, e.g., when the damage was caused by a lion or a bear. Nevertheless there was an actio utilis, which was also granted in case any animal not being a quadruped occasioned the damage. Moreover, when damage was done by a fierce animal which had escaped from its master, there was another reason why he should not be held liable to an actio noxalis de pauperie, viz., because he was no longer proprietor of the animal.

(2) If the animal had been urged on by any one, the person who so urged it on would be liable to the actio Legis Aquilia.

(3) This proposition, limited though it be, is not accurate. We have seen, for instance, that one who is entitled to the action vi bonorum raptorum is also entitled to an actio furti, but he must elect between them. The ground upon which the right exists to bring both the action de pauperie and the ædilitian action is this, that they do not both arise out of one and the same fact; the first arises out of the damage, the second out of disobedience to the edict.

TITLE X.-OF THOSE BY WHOM A MAN MAY SUE.

Pr. An action may be carried on either by the person whose rights are injured, or by another in his name; e.g., a tutor, a curator, or a procurator.

Pr. But this power to sue in the name of another did not always exist. Formerly, that is, in the times of the legis actiones, a citizen was not allowed to sue in the name of another except in three cases: pro populo, when a popular action (one open to any of the people) was brought; pro libertate, when a person constituted himself assertor libertatis, and brought an action against one who claimed to keep as a slave another, alleged to be free (1); pro tutela (apparently), where from the pupillus being incapable of acting himself, even with the auctoritas of the tutor, the tutor was authorised to bring the action tutorio nomine. Moreover, the lex hostilia allowed an actio furti to be brought in the name of those who were prisoners in the hands of the enemy, or absent in the service of the Republic, as also in the name of those under tutela. Lastly, we find that a person admitted as vindex of a citizen summoned in jus (B. 3, t. 12), pleaded in such citizen's name.

Under the formula system, the right of being represented in jure became general, and besides tutors and curators, we find successively, cognitores, procuratores, and defensores, admitted as such representatives.

The cognitor was a representative appointed by formal words pronounced before the magistrate (in jure), in presence of the opposite party. This representative was identified with the demandant or the defendant (dominus litis) (2), so that the sententia (judgment) given for or against the cognitor had the same effect as if given for or against the person who appointed him. Hence the demandant represented by a cognitor could not again bring the same action, or if he did, it was repelled by the exception rei judicatæ (t. 13). Lastly, the cognitor was bound to account to the person who had appointed him, to whom in this respect he was as a mandatarius to a mandator.

The appointment of a cognitor, however, was troublesome; for it was necessary that both plaintiff and defendant should appear before the magistrate. This led to the introduction of procuratores ad litem. The

(1) It was not thought decorous for a slave to have a dispute with his master; an assertor was therefore authorised to make the claim for him. This interference of the assertor continued till the time of Justinian.

(2) The cognitor did not appear in the intentio, but in the condemnatio of the

formula. If, for example, Titius sued as cognitor of Mævius, the intentio would have the name Mævius, si paret Negidium Mavio sestertium X millia dare oportere, but the cognitor would appear in the condemnatio, judex Negidium Titio sestertium X millia condemna (Gaius, 4, § 86).

procurator did not require to be named either in jure or by formal words: indeed he might be appointed by an absent person. He was, in fact, a mere mandatarius commissioned to carry on a suit for the mandator. Now, by the strict principles of the Civil Law, the mandatarius was not identified with the mandator; and when he acted in the execution of a mandatum, he bound himself, saving such recourse as he might have against the mandator. Accordingly, the procurator ad litem was himself the person condemned or acquitted, and the judgment (sententia) had no direct effect against the party whom he represented (1), so that such party might, in strictness, have brought a fresh action, without its being possible for the Prætor to refuse to grant such action, or for a defendant to set up successfully the exceptio rei judicata. Hence the procurator was required, if he represented the demandant, to give the cautio rem ratam dominum habiturum: if he represented the defendant, the cautio judicatum solvi. But this formal strictness was gradually relaxed. First of all, tutors and curators were admitted to sue in respect of the rights of their pupils, and in such case the judicatum was a direct advantage or the contrary to the minor. Afterwards a procurator presented to the magistrate (without formal words) by the party appointing him (procurator præsentis), and a procurator nominated by a public act, apud acta, were both assimilated to the cognitor.

The defensor was one who appeared to plead instead of another, without having received any mandatum. He was, in fact, negotiorum gestor. Generally the defensor could represent none but the defendant (2). The sententia (judgment) given directly, affected the defensor alone he was bound to give the cautio judicatum solvi; and when, out of the usual course, he represented the demandant, the cautio rem ratam dominum habiturum.

In the latest period of the law, after the old forms were disused, there were no cognitores (3). The procurator præsentis was not bound to give cautio (security), nor was the procurator absentis, if he received his mandatum by a public act; the defensor alone was bound to give the cautio de rato or judicatum solvi. A judgment passed for or against the procurator præsentis had the same effect as if it had been passed for or against the person represented by him: the same occurred when the procurator absentis was appointed apud acta, or when the dominus (principal) confirmed the interference either of a procurator or even of a mere defensor.

(1) The formula, when a procurator pleaded, was the same as in case of a cognitor, i.e., the intentio was framed in the name of the dominus of the procurator, and the condemnatio in the name of the procurator.

(2) He undertook the defence of a party attacked, hence the name.

(3) In the Pandects, interpolations were made in the old jurists, by substituting throughout procuratores for cognitores.

TITLE XI.—OF CAUTIONES (SECURITIES).

Pr. Certain securities were required of the litigant parties; but they were different under the new law (novitas) from those under the old law (antiquitati), i.e., under the formula system.

Pr. The cautiones (securities) furnished under the old law by the litigant parties in a real action were as follows:-The defendant who continued in possession during the suit, was required to give the cautio judicatum solvi. This cautio had a threefold purpose: the surety (fidejussor) guaranteed, 1. That the amount of the condemnatio should be paid, in case the defendant should be condemned and should not restore the thing (de re judicata, pro litis æstimatione); 2. That the defendant should appear before the judex, and should continue before the court until the conclusion of the suit (de re defendenda, pro sua persona); 3. That the defendant should use no fraud (de dolo malo, D. 46, 7 6) (1). -If the defendant did not furnish the cautio judicatum solvi, the demandant was put into possession of the subject-matter of the suit, provided that he agreed himself to furnish such cautio.-If the defendant acted in the name of another, à fortiori, the cautio judicatum solvi was required of him; for it was a general principle that a man could never have his defence conducted by another, without a cautio being given.

The demandant was not bound to give any cautio, at least when suing in his own name or as cognitor (2); but if he was suing as procurator, he was required to give a cautio de rato, because, inasmuch as the judgment (sententia) against the procurator did not directly bind the dominus litis, the cautio ratam rem dominum habiturum became indispensable as a guarantee for the defendant, since it gave him the means of indemnifying himself, in case the dominus litis, instead of confirming the acts of his mandatarius, bagan a fresh action (B. 4, t. 10).

§ 1. Formerly in a personal action the same course was followed as to the demandant, as we have described in case of a real action; that is, he was not required to give any cautio when he sued in his own name, or as cognitor, but he was required to give the cautio de rato when he sued as procurator.-As to the defendant, he was not required to give any cautio when he appeared in his own name: but the cautio judicatum solvi was required when he appeared in the name of another:

(1) By this third clause in the security, the surety was responsible, if, for instance, the defendant, on being condemned, restored the chattel in a condition deteriorated by any act of his.

(2) We have already seen that a cognitor

was identified with the person he represented in court, so that the action carried on by him was considered as the action of the dominus litis (his principal). It was therefore useless to subject him to the cautio de rato.