BOOK IV.

Chapter 11.

a § 26.

▸ Paulus?

(3) The late classical Procurator praesentis' and 'apud acta factus' was in many respects on the same footing as the Cognitor.

In respect of the processual effect of representation, and the cautionary obligation connected with it, the following distinctions have to be made.

If representation occurs on the part of the defendant (defensio), there is always need of the 'cautio iudicatum solvi,' since the plaintiff loses his claim against the original opponent in consequence of consumption of the proceedings."

Pomp.: Solutione vel iudicium pro nobis accipiendo et inviti et ignorantes liberari possumus. -D. 46, 3, 23.'

Ulp.: adversus defensorem qui agit, litem in iudicium deducit.-D. 44, 2, II, 7.2

Gai. iv. § 101: Ab eius vero parte cum quo agitur, siquidem alieno nomine aliquis interveniat, omnimodo satisdari debet: quia nemo alienae rei sine satisdatione defensor idoneus intelligitur; sed siquidem cum cognitore agatur, dominus satisdare iubetur, si vero cum procuratore, ipse procurator; idem et de tutore et de curatore iuris est.3

Vat. fgm. 317: Quae satisdatio adeo neces

party, he must be compelled to conduct the defence of the absent party against all persons.

1 By payment, or the undertaking of an action on our behalf, we can be discharged even without our consent and without our knowledge.

2 -the plaintiff carries the suit before the iudex against the representative.

3 But in respect of a defendant, if a man intervenes in another's name, security must be given in all cases, because no one is considered a competent defendant in another man's cause without security; but if the proceedings are against a cognitor, the principal is ordered to give security; if, however, they are against a procurator, the procurator himself must give it. The same rule further holds in respect of a tutor or curator.

saria est, ut eam remitti non posse, etiamsi apud

BOOK IV.

acta procurator constituatur, D. Severus consti- Chapter 11. tuerit.1

In the case of representation upon the part of the plaintiff there arises

(1) as a rule, no obligation of cautio in respect of the Cognitor, since the defendant, by the nature of the representative's commission, is here already always naturally protected against a revival of the action by the party represented (dominus).

Gai. iv. § 97: Nec si per cognitorem quidem agatur ulla satisdatio vel ab ipso vel a domino desideratur cum enim certis et quasi solemnibus verbis in locum domini substituatur cognitor, merito domini loco habetur."

dominum habi

plius eo nomine

(2) Every other representative had, at first indeed invariably, to provide cautio de rato.a But a Ratam rem later on the giving of cautio was made dependent turum,'' amupon whether or not the right of action of the prin- neminem cipal is itself destroyed by the representative's pro- petiturum,' ceedings which was accepted in the case of actual authorisation (verus procurator)—and, in the case of its being so destroyed, for the security of the defendant established the obligation to give cautio only when the authority or legitimation for taking proceedings was doubtful. Thus as a rule was the finding of cautio dispensed with particularly in respect of the procurator praesentis, ad acta factus,' and of an official representative.

For the actio

indicati,' sec

Ibid. § 98: Procurator vero si agat, satisdare § 204 jubetur ratam rem dominum habiturum: periculum

1 And this security is so indispensable, that the late Emp. Severus enacted that it cannot be waived, even if the procurator be appointed in the course of the proceedings.

2 And if proceedings be taken by means of a cognitor, no security is required either from him or from his principal. For since the cognitor is substituted for his principal by certain and, as it were, solemn words, he is rightly regarded as occupying the position of the principal.

BOOK IV. Chapter 11.

a Cf. supra.

Ulpian?

enim est, ne iterum dominus de eadem re experiatur; quod periculum non intervenit, si per cognitorem actum fuerit, quia de qua re quisque per cognitorem egerit, de ea non magis amplius actionem habet quam si ipse egerit.'

Ibid. § 84-quamquam et ille, cui mandatum est, plerumque satisdare debet, quia saepe mandatum initio litis in obscuro est et postea apud iudicem ostenditur."

Vat. fgm. 333 (Pap.): Absentis procuratorem satisdare debere de rato habendo, recte responsum est multis enim casibus ignorantibus nobis mandatum solvi potest, vel morte vel revocato mandato. Cum autem certum est mandatum perseverare, i.e. cum praesens est dominus, satisdationis. necessitas cessat.3

Ibid. 317: [Apud acta facto] procuratori haec satisdatio remitti solet: nam cum apud acta nonnisi a praesente domino constituatur, cognitoris loco intelligendus est."

But if a procurator is suing, he is ordered to give security for his principal's ratification of his acts; for there is a danger of the principal proceeding afresh in respect of the same matter: this danger does not arise if proceedings have been taken through a cognitor; for a man who is sued through a cognitor has no further action in respect of the same matter than if he sued in person.

2

-although even he who holds a commission must generally give security, because often a commission is not disclosed at the beginning of a suit, and is afterwards brought forward before the iudex.

3 An opinion was correctly given that the procurator of an absent party ought to give security for confirmation of his acts by his principal; for in many cases without our knowledge a commission can be determined, either by death or by the revocation thereof. But when it is certain that the commission continues, i.e., when the principal is present, the need for security is over.

The procurator [appointed at the hearing] is commonly excused this security; for since he is appointed at the proceedings only by the principal when present, he is to be regarded as in the position of a cognitor.

Imp. Ant. Pius: Cautio ratihabitionis tunc exigitur a procuratore, quotiens incertum est, an ei mandatum est.-C. 2, 12, 1.'

Ulp. ex parte actoris in iudicium deducunt

procurator cui mandatum est, tutor, curator furiosi vel pupilli, actor municipum.-D. 44, 2, 11, 7.2

Gai. iv. § 99: Tutores et curatores eo modo quo et pro curatores satisdare debere, verba edicti faciunt; sed aliquando illis satisdatio remittitur.3 Ulp. Vulgo observatur, ne tutor caveat ratam rem pupillum habiturum, quia rem in iudicium deducit.-D. 26, 7, 23.*

Id. Licet verum procuratorem in iudicio rem deducere verissimum est, tamen et si quis, cum procurator non esset, litem sit contestatus, deinde ratum dominus habuerit, videtur retro res in iudicium recte deducta.-D. 5, 1, 56.5

a

BOOK IV.

Chapter 11.

Moreover, the defendant could by a plea (exceptio cognitoria, procuratoria) rebut the representative that was not qualified," or was not authorised (falsus pro- §§ 57, 194curator)—as in fact not having 'legitimatio ad causam' --without in the latter case prejudice being done to the claim of the party entitled to the action (dominus) by the absolution of the defendant."

1 Security for ratification is required from a procurator whenever it is doubtful whether he has a commission.

On the part of the plaintiff, the matter is carried before the iudex by a procurator with a commission, a tutor, a curator of a madman or ward, the representative of a municipality.

3 The words of the Edict require that tutors and curators should give security in the same manner as procuratores, but sometimes security is waived in their case.

4 It is commonly ruled that a guardian need not give security for the ward's ratification of his acts because of his taking proceedings.

5 Although it is perfectly true that one who is really a procurator can carry a suit before the iudex, yet if any one, not a procurator, has raised the issue, and the principal has subsequently given his ratification, it is considered retrospectively that the matter was rightly carried before the iudex.

Cf. Gai. iv. § 123.

BOOK IV. Chapter II.

a Cf. § 200.

Gai. iv. 124: Non solum autem ex tempore, sed etiam ex persona dilatoriae exceptiones intelliguntur, quales sunt cognitoriae veluti si is qui per edictum cognitorem dare non potest, per cognitorem agat, vel dandi quidem cognitoris ius habeat, sed cum det cui non licet cognituram suscipere: nam si obiiciatur exceptio cognitoria, si ipse talis erit, ut ei non liceat cognitorem dare, ipse agere potest; si vero cognitori non liceat cognituram suscipere, per alium cognitorem aut per semet ipsum habet agendi potestatem, et tam hoc vel illo modo evitare potest exceptionem; quodsi dissimulaverit eam et per cognitorem egerit, rem perdit.'

THE PARTES FORMULAE.

§ 197. THE ORDINARY CONSTITUENTS.

Every normal formula necessarily consisted of two parts the intentio, that is, the statement of the plaintiff, which has to be confirmed by the judge— sometimes the signification of the legal claim in dispute, at other times the assertion of a definite fact that originates a right "-as the condition of the condemnation of the defendant; and the condemnatio, the conditional instructions for condemnation (and absolution), which at the same time gives precision to the object of the condemnation. According as the intentio relates

1 Dilatory pleas are regarded as relating not merely to time, but also to the person, of which sort are those affecting cognitores, as in the case of a person who by the Edict cannot nominate a cognitor, and yet takes proceedings by one, or in the case of a man who has the right of nominating a cognitor, but nominates a person unsuitable for the office: for if an exceptio cognitoria is raised, and the principal is not entitled to nominate a cogni tor, he can sue in person; whilst if the cognitor cannot lawfully undertake the office, the principal has full power to sue either by means of another cognitor or in person. By either of these ways he can avoid the plea; but if he make light of it and sue by the cognitor, he loses the cause.