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Framing the Formula in an Actio alieno nomine. 301

mandatum procurator, experiri potest, quia saepe mandatum initio litis in obscuro est et postea aput iudicem ostenditur. (85.) Tutores autem et curatores quemadmodum constituantur, primo commentario rettulimus.

86. Qui autem alieno nomine agit, intentionem quidem ex persona domini sumit, condemnationem autem in suam personam convertit. nam si verbi gratia Lucius Titius pro Publio Maevio agat, ita formula concipitur: SI PARET NUMERIUM

NEGIDIUM PUBLIO MAEVIO SESTERTIUM X MILIA DARE OPORTERE, IUDEX NUMERIUM NEGIDIUM LUCIO TITIO SESTERTIUM X

MILIA CONDEMNA. SI NON PARET, ABSOLVE. in rem quoque si agat, intendit Publii Maevii rem esse ex iure Quiritium, et condemnationem in suam personam convertit. (87.) Ab adversarii quoque parte si interveniat aliquis, cum quo actio constituitur, intenditur dominum dare oportere; condemnatio autem in eius personam convertitur qui iudicium accepit. sed cum in rem agitur, nihil in intentione facit eius persona

curator produce no mandate, he may conduct the action, because a mandate is frequently kept back at the commencement of a suit, and produced afterwards before the judex. 85. As to the manner of appointing tutors and curators we have given information in our first commentary'.

86. He who sues in the name of another inserts his principal's name in the intentio, but in the condemnatio inserts his own instead. For if, for example, Lucius Titius be acting for Publius Maevius, the formula is thus drawn: "Should it appear that Numerius Negidius is bound to give 10,000 sesterces to Publius Maevius, do thou, judex, condemn Numerius Negidius to pay the 10,000 sesterces to Lucius Titius: should it not so appear, acquit him." If again the action be in rem, he lays his intentio that such and such a thing is the property of Publius Maevius ex jure Quritium, and then in the condemnatio changes to his own name. 87. If, again, there be on the part of the defendant some agent against whom the suit is laid, the statement in the intentio is to the effect that "the principal ought to give:" but in the condemnatio the name is changed to that of him who has undertaken the conduct of the case. But when the action is in rem, the name of the

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cum quo agitur, sive suo nomine sive alieno aliquis iudicio interveniat: tantum enim intenditur rem actoris esse.

88. Videamus nunc quibus ex causis is cum quo agitur vel hic qui agit cogatur satisdare. (89.) Igitur si verbi gratia in rem tecum agam, satis mihi dare debes. aequum enim visum est te ideo quod interea tibi rem, quae an ad te pertineat dubium est, possidere conceditur, cum satisdatione mihi cavere, ut si victus sis, nec rem ipsam restituas nec litis aestimationem sufferas, sit mihi potestas aut tecum agendi aut cum sponsoribus tuis. (90.) Multoque magis debes satisdare mihi, si alieno nomine iudicium accipias. (91.) Ceterum cum in rem actio duplex sit (aut enim per formulam petitoriam agitur aut per sponsionem): si quidem per formulam petitoriam agitur, illa stipulatio locum habet quae appellatur iudicatum solvi:

person against whom the action is brought has no effect on the intentio, whether such person be defending his own cause or acting as agent in a suit belonging to another: for the wording of the intentio is simply that "the thing is the plaintiff's." 88. Let us now see under what circumstances he who is sued or he who sues is under the necessity of finding sureties. 89. If then, to take an example, I bring an action in rem against you, you must furnish me with sureties. For since you are allowed to have the interim-possession of the thing, in respect of which there is a doubt whether the ownership is yours or not, it has been considered equitable that you should provide me with sureties, so that if you lose the suit and will neither deliver up the subject nor submit to the damages assessed, I may have the power of proceeding either against you or your sureties. 90. And still more ought you to furnish me with sureties, if you defend an action in the name of another person. 91. Inasmuch, then, as the action in rem may be brought in two different forms (for proceedings are taken either by a petitory formula or by a sponsion); if the former course be adopted, that particular stipulation is employed which has the name judicatum solvi (that the award of the judex shall be paid): but if the latter, that

1 "Judicatum solvi stipulatio tres clausulas in unum collatas habet: de re judicata, de re defendenda,

de dolo malo :" D. 46. 7. 6. The three objects at which the stipulatio aimed were these, (1) to secure pay

The two modes of suing in Rem.

303 si vero per sponsionem, illa quae appellatur pro praede litis et vindiciarum. (92.) Petitoria autem formula haec est qua actor intendit rem suam esse. (93.) Per sponsionem vero hoc modo agimus. provocamus adversarium tali sponsione: si HOMO QUO DE AGITUR EX IURE QUIRITIUM MEUS EST, SESTERTIOS XXV NUMMOS DARE SPONDES? deinde formulam edimus qua intendimus sponsionis summam nobis dare oportere. qua formula ita demum vincimus, si probaverimus rem nostram esse. (94.) Non tamen haec summa sponsionis exigitur: nec enim poenalis est, sed praeiudicialis, et propter hoc solum fit,

pro praede litis et vindiciarum'. one in which the plaintiff claims

stipulation which is called 92. A petitory formula is the thing to be his own. 93. The mode of procedure by sponsion is as follows. We challenge our adversary in a sponsion running thus: "if the slave who is the subject of this action be mine ex jure Quiritium, do you engage to give me 25 sesterces ?" Then we serve him with a formula, in the intentio of which we assert that the amount of the sponsion is due to us and under this formula we are victorious only on our proving that the thing is ours. 94. The amount of this sponsion is not, however, in any case exacted: for it is not penal but praejudicial, being introduced for the sole

ment of the award of the judex, the litis aestimatio, in case of non-restitution of the subject of the suit, the lis: (2) to secure the attendance of the defendant in court: (3) to prevent any acts being done by him to the detriment of the subject of the suit. The plaintiff, if successful, could of course sue on his judgment, by pignoris capio for instance; but it was more convenient to sue his opponent on his stipulation; and besides, the fact of there being sureties, multiplied the chances of obtaining adequate compensation.

1 See IV. 16 and notes thereon: also IV. 94 and Cic. in Verr. II. I. c. 45 with the commentary of Pseudo Asconius on the passage (p. 191 ed. Orell.).

2 We see then that by this device

the actio in rem directed against no one in particular, has been converted into an actio in personam against our opponent. We sue him for the amount of a wager; but whether he has won or lost that wager can only be decided by the court pronouncing its opinion on our claim of ownership.

3 "Praejudicium," says Zimmern, "in the language of practice, was not exactly a preliminary proceeding, in the same sense as actio praejudicialis, but a decision which might sooner or later be appealed to as a precedent." (Zimmern, traduit par Etienne, Traité des actions, pp. 295, 296.)

There is some difficulty at first sight in comprehending how his victory in the sponsion benefited

ut per eam de re iudicetur. unde etiam is cum quo agitur non restipulatur: ideo autem appellata est PRO PRAEDE LITIS VINDICIARUM stipulatio, quia in locum praedium successit; quia olim, cum lege agebatur, pro lite et vindiciis, id est pro re et fructibus, a possessore petitori dabantur praedes. (95.) Ceterum si aput centumviros agitur, summam sponsionis non per formulam petimus, sed per legis actionem: sacramento enim reum provocamus; eaque sponsio sestertiorum cxxv nummorum fit, scilicet propter legem (96.) Ipse autem qui in rem (97.) ac nec si per

agit, si suo nomine agit, satis non dat.

purpose of obtaining a decision on the main issue by its means. Hence it is that the defendant does not enter into a restipulation. This stipulation again is called pro praede litis et vindiciarum, because it was substituted for the praedes', who in olden times, when the proceedings were by legis actio, used to be assigned by the interim-possessor to the plaintiff, for the assuring of the lis et vindiciae, i. e. the thing itself and the profits thereof. 95. But when the action is tried before the centumviri' we do not sue for the amount of the sponsion by a formula, but by a legis actio; for we challenge the defendant by the sacramental wager; and the sponsion arising out of it is to the amount of 125 sesterces, according to the Lex 96. In the case of an actio in rem the plaintiff, if suing in his own name, does not furnish sureties.

the plaintiff. He had certainly gained his wager, but the real object of the suit was not the winning of a trifle such as 25 sesterces, but the securing of a transfer to him by his adversary of the lands in debate. He could not proceed on his judgment, for an actio judicati was not intended to transfer possession, and this was what his opponent now wrongfully withheld from him. Besides, although it had been decided that the field was his, the verdict he had obtained was one for 25 sesterces, and for this alone could he have brought an actio judicati, if such action had been allowed him at all; but we know that it was expressly refused him, for says

66

97. Nay,

Gaius: nec enim poenalis est sum-
ma sed praejudicialis." How then
did he proceed? On the stipula-
tion "pro praede litis et vindicia-
rum," for therein his adversary had
bound himself by a verbal contract
to let the lands, or their value,
follow the judgment as to the wager.
If then the lands were not delivered,
he had a personal action on this
stipulation, and could in lieu of the
lands, get their value, or possibly
more than their value, as the amount
secured would no doubt be such as
to make it worth the defendant's
while to give the lands rather than
forfeit his bond.

1 See note on IV. 16.
2 IV. 31.

Sureties in suits alieno nomine.

305

cognitorem quidem agatur, ulla satisdatio vel ab ipso vel a domino desideratur. cum enim certis et quasi sollemnibus verbis in locum domini substituatur cognitor, merito domini loco habetur. (98.) Procurator vero si agat, satisdare iubetur ratam rem dominum habiturum: periculum enim est, ne iterum dominus de eadem re experiatur. quod periculum non intervenit, si per cognitorem actum fuit; quia de qua re quisque per cognitorem egerit, de ea non magis amplius actionem habet quam si ipse egerit. (99.) Tutores et curatores eo modo quo et procuratores satisdare debere verba edicti faciunt. sed aliquando illis satisdatio remittitur. (100.) Haec ita si in rem agatur: si vero in personam, ab actoris quidem parte quando satisdari debeat quaerentes, eadem repetemus quae diximus in actione qua in rem agitur. (101.) ab eius vero parte cum quo agitur, si quidem alieno nomine aliquis interveniat,

even though a suit be brought by means of a cognitor, no sureties are required either from him or his principal. For since the cognitor is put into the place of the principal in words of a formal and almost solemn character1 he is fairly regarded as occupying the position of the principal. 98. Hence when a procurator brings an action, he is ordered to furnish sureties that his principal will ratify his proceedings: for there is the risk that the principal may again sue for the same thing. But when the proceedings are conducted by means of a cognitor this risk does not exist, because when a man sues by such an agent, he no more has a second action than he would have if he himself sued. 99. According to the letter of the edict tutors and curators ought to furnish sureties in the same manner as procurators must; but from this necessity of finding sureties they are sometimes excused. 100. The above are the rules when the action is in rem, but if it be in personam, what we have already stated with reference to the action in rem will be our answer to those who want to know when sureties ought to be furnished on the part of the plaintiff. IOI. As to the case of a defendant,-when a man defends in another's name, sureties must always be furnished,

1 IV. 83.

2 Cicero treats the subject of satisdatio by cognitores and broc:ra

tores at some length in pro Quinct. c. 7, 8.

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