X.

DE HIS PER QUOS AGERE POSSUMUS.

Nunc admonendi sumus agere posse quemlibet aut suo nomine aut alieno. alieno veluti procuratorio tutorio curatorio, cum olim in usu fuisset alterius nomine agere non posse nisi pro populo, pro libertate, pro tutela. praeterea lege Hostilia permissum est furti agere eorum nomine, qui apud hostes essent aut rei publicae causa abessent quive in eorum cuius tutela essent. et quia hoc non minimam incommoditatem habebat, quod alieno nomine neque agere neque excipere actionem licebat, coeperunt homines per procuratores

per legis Aquiliae actionem iniuriarum consumi, quoniam desiit bonum et aequum esse condemnari eum, qui aestimationem praestitit, sed si ante iniuriarum actum esset, teneri eum ex lege Aquilia. Sed et haec sententia per praetorem inhibenda est, nisi in id, quod amplius ex lege Aquilia competit, agatur: rationabilius itaque est, eam admitti sententiam, ut liceat ei quam voluerit actionem prius exercere, quod autem amplius in altera est, etiam hoc exsequi' Dig. 44. 7. 34. pr., 'si furtim arbores caesae sint, et ex lege Aquilia et ex duodecim tabularum dandam actionem Labeo ait. Sed Trebatius, ita utramque dandam, ut iudex in posteriore deducat id, quod ex prima consecutus sit, et reliquo condemnet' Dig. 47. 7. 1, 'qui rem rapuit, et furti nec manifesti tenetur in duplum, et vi raptorum in quadruplum: sed si ante actum sit vi bonorum raptorum, deneganda est furti, si ante furti actum sit, non est illa deneganda, ut tamen id, quod amplius in ea sit, consequatur' Dig. 47. 2. 88. This conclusion seems at first sight to be contradicted by a dictum of Modestinus, 'plura delicta in una re plures admittunt actiones, sed non posse omnibus uti probatum est: nam si ex una obligatione plures actiones nascuntur, una tantummodo, non omnibus utendum est' Dig. 44. 7. 53. pr.; but this may be taken to mean that the several actions cannot all be brought with full effect; and the proposition would be true invariably if the injured person, where he had an alternative, was careful enough to select the remedy by which he could recover the heaviest penalty.

Tit. X. Of the exceptions to the old rule nemo alieno nomine agere potest (Dig. 50. 17. 123) pro populo' refers to the actiones populares, and 'pro libertate' includes manumission per vindictam, p. 107 supr. Nothing further is known of the lex Hostilia. What is meant by 'pro tutela' in the text is much disputed; Theophilus' explanation of it by supposing a suit between two or more persons claiming a tutela is generally rejected, and perhaps it may be right to understand it of actions brought generally by the tutor in relation to the ward's property.

litigare: nam et morbus et aetas et necessaria peregrinatio itemque aliae multae causae saepe impedimento sunt, quo

The Twelve Tables had also allowed the relations of a person who had suffered an aggravated outrage to sue for talio on his behalf, p. 522 supr. ; and the legis actio repetundarum could, under the statutes by which it was regulated (e. g. Calpurnia, Servilia), be brought by a Roman citizen on behalf of the persons really injured.

The introduction of the formulary procedure facilitated representation of defendants no less than of plaintiffs. From this time onward it was allowed by the praetor with but slight limitations; the desired end being attained by the principal's name appearing in the intentio of the formula, the agent's in the condemnatio; e. g. 'si paret Caium Seio (principal) sestertium decem milia dare oportere, iudex Caium Titio (agent) sestertium decem milia condemna: si non paret, absolve (Gaius iv. 86, 87). Of such agents there were two types. The older of these is the cognitor, who was appointed for a single action (in litem) in the presence of the other party, certis et sollennibus verbis, the formulae of which are preserved by Gaius iv. 83. There could thus be no question of the cognitor's authority, and consequently he was identified with his principal throughout; his processual acts affected the latter exactly as if they had been his own: 'domini loco habetur' Gaius iv. 97. The other is the procurator, who might be a general agent, acting even without commission; 'quin etiam sunt qui putant vel eum procuratorem videri, cui non sit mandatum, si modo bona fide accedat ad negotium, et caveat rem ratam dominum habiturum; igitur etsi non edat mandatum procurator, nihilominus agere posse, quia saepe mandatum initio litis in obscuro est, et postea apud iudicem ostenditur' Gaius iv. 84. The procurator thus stood upon an altogether different footing from the cognitor, for the alleged principal might turn out to be no principal at all, or at any rate not to have consented to the agent's bringing or defending the action for him: consequently, he was not identified with the latter, as the cognitor was, and was in fact the real party to the action himself. Hence, if he appeared as plaintiff, the principal's right of action was not consumed, so that he could subsequently sue upon it himself (Gaius iv. 98), and the agent alone could bring actio iudicati against the defendant, if condemned, fragm. Vat. 317; if he appeared as defendant, it was he, and not the principal, against whom the actio iudicati must be brought if the case went against him. The general consequence of this nonidentification of procurator with his dominus was that he was allowed to appear as plaintiff or defendant only upon the condition that the other party to the action was fully protected against the risk of the principal's disowning his proceedings by subsequently suing upon the same ground himself, or by refusing to satisfy an adverse judgment. This was effected by the system of security described in the next Title.

Between Gaius and Justinian the cognitor disappeared, and when there was no doubt that a procurator really was what he held himself

minus rem suam ipsi exsequi possint. Procurator neque certis 1 verbis neque praesente adversario, immo plerumque ignorante eo constituitur: cuicumque enim permiseris rem tuam agere aut defendere, is procurator intellegitur. Tutores et curatores 2 quemadmodum constituuntur, primo libro expositum est.

XI.

DE SATISDATIONIBUS.

Satisdationum modus alius antiquitati placuit, alium novitas per usum amplexa est.

Olim enim si in rem agebatur, satisdare possessor compellebatur, ut, si victus nec rem ipsam restitueret nec litis aestimationem, potestas esset petitori aut cum eo agendi aut cum fideiussoribus eius. quae satisdatio appellatur iudicatum solvi: unde autem sic appellatur, facile est intel

out to be, this form of representation was released from the inconveniences which previously had attended it, Tit. 11. 3 inf. Hence arose more formal, though of course still optional, modes of appointing such agents, the observance of which would place their authority beyond all doubt; e. g. nomination in court, Tit. 11. 4 inf.; registration in the acta, ib. 3, or a written notification addressed to the one party by the other, coupled with an undertaking to ratify the agent's proceedings, Dig. 3. 3. 65; and it became a recognised rule that where the principal's authority was delegated in any of these modes his right of action was consumed, Dig. 44. 2. 11. 7, and he could himself bring, or be sued by, the actio iudicati, fragm. Vat. 331, 332. The latter action could still be brought against a procurator who was condemned (unless he was appointed in court, Tit. 11. 4 inf.), but apparently he could defend himself by the exceptio doli.

The word 'quemlibet' in the first line of the Title is not literally true; women and soldiers could be procurators only in rem suam, Tit. 13. 11 inf.; and persons branded with infamia could neither be represented by agents themselves, frag. Vat. 322, nor as a rule act as agents, except 'pro libertate' ib. 324.

§ 2. Under the older law tutors and curators had been treated like procurators, and required to give security both 'ratam rem dominum habiturum' and 'iudicatum solvi;' though Gaius tells us, iv. 99 (cf. Tit. II. pr. inf.), that they were sometimes excused. Under Justinian they stood on the same footing with procurators whose appointment had been formal, Dig. 26. 7. 2. pr.

Tit. XI. Satisdatio is properly a species of recognisance entered into.

legere namque stipulatur quis, ut solveretur sibi quod fuerit iudicatum. multo magis is, qui in rem actione conveniebatur, satisdare cogebatur, si alieno nomine iudicium accipiebat. ipse autem qui in rem agebat, si suo nomine petebat, satisdare non cogebatur. procurator vero si in rem agebat, satisdare iubebatur ratam rem dominum habiturum : periculum enim erat, ne iterum dominus de eadem re experiatur. tutores et curatores eodem modo quo et procuratores satisdare debere verba edicti faciebant. sed aliquando his 1 agentibus satisdatio remittebatur. Haec ita erant, si in rem agebatur. sin vero in personam, ab actoris quidem parte eadem optinebant, quae diximus in actione qua in rem agitur. ab eius vero parte cum quo agitur si quidem alieno nomine aliquis intervenerit, omnimodo satisdaret, quia nemo defensor in aliena re sine satisdatione idoneus esse creditur. quod si proprio nomine aliquis iudicium accipiebat in personam, iudicatum solvi satisdare non cogebatur.

by stipulation not only by the principal party, but also by sureties on his behalf, their liability and his being correal: 'satisdare dicimur adversario nostro cum pro eo quod a nobis petiit ita cavemus, ut eum hoc nomine securum faciamus datis fideiussoribus' Dig. 2. 8. 1. In this specific sense it is contrasted in § 2 inf. with nuda promissio and promissio cum iureiurando, and in Dig. 5. 1. 2. 6; 40. 5. 8. 1 with pignoribus datis

cavere.

In real actions under the formulary system the satisdatio given by a defendant had varied with the form of the action itself. If this was formula petitoria the name of the security was iudicatum solvi (for which see on § 4 inf.); if it was per sponsionem, it was called pro praede litis et vindiciarum, Gaius iv. 91. 94 a. If the defendant was a procurator, he had to give satisdatio iudicatum solvi himself; if a cognitor, this was done by the principal, Gaius iv. 101. A cognitor who was plaintiff had not, like a procurator in the same position, to engage 'ratam rem dominum habiturum,' because he was domini loco, Gaius iv. 97.

§ 1. To Justinian's statement that under the older system a defendant in a personal action who appeared himself had not to give security iudicatum solvi there are some exceptions. He had to do so 'propter genus actionis' in the actiones iudicati and depensi; when he was sued for retaining a portion of the divorced wife's dos and pleaded her immorality (cum de moribus mulieris agetur); and probably in the iudicium fructuarium in a double interdict, Gaius iv. 169. In other cases the defendant's own character or position justified the suspension of the ordinary rule, i.e. where he had been, was, or was suspected of being insolvent, Gaius iv. 102.

Sed haec hodie aliter observantur. sive enim quis in rem 2 actione convenitur sive personali suo nomine, nullam satisdationem propter litis aestimationem dare compellitur, sed pro sua tantum persona, quod iudicio permaneat usque ad terminum litis, vel committitur suae promissioni cum iureiurando, quam iuratoriam cautionem vocant, vel nudam promissionem vel satisdationem pro qualitate personae suae dare compellitur. Sin autem per procuratorem lis vel infertur vel 3 suscipitur, in actoris quidem persona, si non mandatum actis insinuatum est vel praesens dominus litis in iudicio procuratoris sui personam confirmaverit, ratam rem dominum habiturum satisdationem procurator dare compellitur: eodem observando et si tutor vel curator vel aliae tales personae, quae alienarum rerum gubernationem receperunt, litem quibusdam per alium inferunt. Sin vero aliquis convenitur, si quidem 4

§ 2. Thus the engagement entered into in Justinian's time by a defendant who appeared in person covered the ground of both (1) the old vadimonium or cautio iudicio sisti, Gaius iv. 185, which secured the appearance of the defendant in iure in cases of adjournment, and (2) the clause de re defendenda of the security iudicatum solvi; it bound him to appear in court on the day of trial and defend the action: but he was no longer required to guarantee satisfaction of the judgment. The ordinary mode of entering into this engagement was satisdatio; but even before the time of Gaius the praetor had drawn distinctions in vadimonia, being satisfied in some cases with a merely personal undertaking without sureties (vadimonium purum), and in others with such undertaking fortified by the oath or by a summary process for the recovery of the recognisance ('recuperatoribus suppositis' Gaius iv. 185). Under Justinian landowners (Dig. 2. 8. 15) and personae illustres (Cod. 12. 1. 17) could be compelled to bind themselves in iudicio permanere usque ad terminum litis only by a written cautio iuratoria; it is not clear who were privileged to give a bare promise to this effect, though the edict seems to have contained careful regulations on the subject, Gaius loc. cit. : 'pro tenore generalium edictorum' Cod. 12. 22. 8.

§ 3. The general principle as to when a procurator who appears as plaintiff must give security ratam rem dominum habiturum is found in Cod. 2. 13. 1 'cautio ratihabitionis tunc exigitur a procuratore, quotiens incertum est an ei negotium mandatum est,' cf. Dig. 3. 4. 6. 3 'si de decreto dubitetur, puto interponendam et de rato cautionem.' The agent was also exempted where his appointment was notified by letter to the other party, note on Tit. 10. pr. supr., or was evidenced by a libellus addressed to the emperor, Dig. 46. 8. 21.

§ 4. A procurator appointed in court (praesens) was thus in the same