debt of another; satisdare for the giving surety for the obligation of the principal; satisaccipere for the receiving it.

Suretyship might be created, not only in the modes above mentioned, but by the surety offering himself as mandator pecuniæ credendæ, i.e. bidding the creditor to lend to the debtor, or by a pactum constitutæ pecuniæ, an undertaking to pay an ascertained debt, and in this case the debt of another person. (Bk. iv. 6. 9.)

The senatusconsultum Velleianum (D. xvi. 1. 2. 1), perhaps of the date of 46 A.D., forbade women ever to bind themselves for another person.

1. In omnibus autem obligationibus adsumi possunt, id est sive re sive verbis sive litteris sive consensu contractæ fuerint. Ac ne illud quidem interest, utrum civilis an naturalis sit obligatio, cui adjiciatur fidejussor, adeo quidem, ut pro servo quoque obligetur, sive extraneus sit, qui fidejussorem a servo accipiat, sive ipse dominus in id, quod sibi naturaliter debetur.

1. Fidejussores may be added in every kind of obligation, i. e. whether the obligation is contracted by the delivery of the thing, by words, by writing, or by the consent of the parties. Nor is it material whether the obligation to which the fidejussor is made an additional party is civil or natural; so much so, that a man may bind himself as a fidejussor for a slave, either to a stranger or to the master of the slave, in respect of a thing due by a natural obligation to the person accepting the fidejussor from the slave.

GAI. iii. 119; D. xlvi. 1. 8. 5.

In omnibus obligationibus, including obligations arising out of delicts. This was the principal advantage gained by the introduction of fidejussores.

2. Fidejussor non tantum ipse obligatur, sed etiam heredem obligatum relinquit.

2. A fidejussor not only binds himself, but leaves also his heir bound.

D. xlvi. 1. 4. 1.

This was the second chief point of difference between fidejussores and sponsores, or fidepromissores. There was no limit to the time during which fidejussores remained bound, such as the lex Furia had laid down for the benefit of sponsores and fidepro

missores.

3. Fidejussor et præcedere obligationem et sequi potest.

3. A fidejussor may be added either before or after an obligation is entered into.

D. xlvi. 1. 6. pr. and 2.

Probably the formality of verbal contracts exacted that the words of the principal should precede those of the accessory.

4. Si plures sint fidejussores, quotquot erunt numero, singuli in solidum tenentur. Itaque liberum est creditori, a quo velit, solidum petere. Sed ex epistula divi Hadri

4. Where there are several fidejussores, whatever is their number, each is bound for the whole debt, and the creditor may demand the whole from any of them he pleases. But,

ani compellitur creditor a singulis, qui modo solvendo sint litis contestatæ tempore, partes petere. Ideoque si quis ex fidejussoribus eo tempore solvendo non sit, hoc ceteros onerat. Sed et si ab uno fidejussore creditor totum consecutus fuerit, hujus solius detrimentum erit, si is, pro quo fidejussit, solvendo non sit et sibi imputare debet, cum potuerit adjuvari ex epistula divi Hadriani et desiderare, ut pro parte in se detur actio.

by a rescript of the Emperor Hadrian, the creditor is forced to divide his demand between all those fidejussores who are solvent at the time of the litis contestatio, so that, if any of the fidejussores is not solvent at that time, the rest have so much additional burden. But, if the creditor obtains his whole demand from one of the fidejussores, the whole loss falls upon him alone, if the principal debtor cannot pay; for he has no one but himself to blame, as he might have availed himself of the rescript of the Emperor Hadrian, and might have required that no action should be given against him for more than his share of the debt.

GAI. iii. 121 ; D. xlvi. 1. 26.

The provision of the lex Furia not applying to fidejussores, they were bound for all they had promised; and as each promised for himself alone, the one first sued had no remedy against the other fidejussores, until the rescript of Hadrian provided one, and gave him what was called the beneficium divisionis; but under the lex Furia, the liability was divided among the different sureties ipso jure, whereas the surety first sued was obliged expressly to claim the benefit given by the rescript of Hadrian (beneficium divisionis).

There were two other privileges or beneficia of which the fidejussor might avail himself: one was that cedendarum actionum, by which, if the creditor, without suing the debtor, proceeded against the fidejussor, the surety, if prepared to pay the whole debt, could, before paying the creditor, compel him to make over to him the actions which belonged to the stipulator, and thus the fidejussor could sue those bound with him, or the principal debtor (D. xlvi. 1. 17), and this was often more advantageous to the fidejussor than having recourse to the rescript of Hadrian, because, if the creditor had taken pledges, they were transferred to the fidejussor, if the actions were ceded to him. If the creditor refused to cede the actions and still sued the surety, he could be repelled by an exceptio doli mali. (D. xlvi. 1. 59.)

There was also a beneficium ordinis, or, as it was otherwise termed, excussionis or discussionis, introduced by Justinian (Nov. 4. 1); by this a creditor was bound to sue the principal debtor first, and could only sue the sureties for that which he could not recover from the principal.

5. Fidejussores ita obligari non possunt, ut plus debeant, quam debet is, pro quo obligantur: nam eorum obligatio accessio est principalis obligationis nec plus in accessione esse potest quam in prin

5. Fidejussores cannot bind themselves for more than the debtor is bound for; because their obligation is accessory to the principal obligation; and the accessory cannot contain more than the principal.

They

GAI. iii. 113. 126.

GAI. iii. 127.

If he had intervened without the knowledge of the principal, he would have an actio negotiorum gestorum, not mandati (Tit. 27. 1); and he would have no action at all if he had intervened in defiance of the wishes of the principal. (D. xvii. 1. 40.)

D. xlvi. 1. 8.

The appropriate Latin formula was, ' Idem fide mea esse jubeo,' but this formula was, probably, never insisted on, as the formulæ *spondeo' and 'idem fide mea promitto' were.

8. It is a general rule in all stipulations of fidejussores, that whatever is stated in writing to have been done, is considered really to have been done. If, therefore, any one states in writing that he has bound himself as a fidejussor, it is presumed that all the necessary forms were observed. D. xlvi. 1. 30.

Cautio was the general term for the documentary evidence of

TIT. XXI. DE LITTERARUM OBLIGATIONE.

:

Olim scriptura fiebat obligatio, quæ nominibus fieri dicebatur : quæ nomina hodie non sunt in usu. Plane si quis debere se scripserit, quod numeratum ei non est, de pecunia minime numerata post multum temporis exceptionem opponere non potest hoc enim sæpissime constitutum est. Sic fit, ut et hodie, dum queri non potest, scriptura obligetur: et ex ea nascitur condictio, cessante scilicet verborum obligatione. Multum autem tempus in hac exceptione antea quidem ex principalibus constitutionibus usque ad quinquennium procedebat: sed ne creditores diutius possint suis pecuniis forsitan defraudari, per constitutionem nostram tempus coartatum est, ut ultra biennii metas hujusmodi exceptio minime extendatur.

Formerly there was made by writing a kind of obligation, which was said to be made nominibus (by booking debts). These nomina are now no longer in use. But if any one states in writing that he owes a sum which has never really been told out to him, he cannot, after a long time has elapsed, use the exception non numeratæ pecuniæ, i.e. that the money has not been told out. This has been often decided by imperial constitutions; and thus it may be said, even at the present day, as he cannot relieve himself from payment, he is bound by the writing, and that the writing gives rise to a condiction, in the absence, that is, of any verbal obligation. The length of time fixed as barring this exception, was, under imperial constitutions antecedent to our time, not less than five years. But, that creditors might not be exposed too long to the risk of being defrauded of their money, we have shortened the time by our constitution, and this exception cannot now be used beyond the space of two years.

GAI. iii. 128-130. 133, 134; C. iv. 30. 14.

A contract was said to be formed literis when it originated in a certain entry or statement of it being made in the books of the creditor with the consent of the debtor. Regularity in keeping accounts, and in entering all matters of business in a private ledger, was considered one of the first duties of a Roman citizen. Cicero speaks of a failure in this duty as an almost insupposable act of negligence and dishonesty. (See pro Roscio, 3. 1 and 3.) Events, as they occurred, were jotted down in rough memorandums called adversaria, and these were transferred at least once a month to the ledger (codex or tabula). It was only this ledger which had any legal importance. If any one put down in his ledger that he had advanced such a sum of money to another (expensum ferre), this entry (expensilatio) was an admissible proof of the fact. If the debtor also had made a corresponding entry in his ledger (acceptum referre), the tallying of the two together made what was called an obligatio literis. These two entries had, in fact, exactly the same effect as if the two parties had entered into a stipulation. But this was not all: the creditor was not to be placed entirely at the mercy of his debtor, whose wilful or accidental negligence, preventing a proper entry, might make the

obligation fail. The real source of the obligation was taken to be the consent of the debtor to the entry made by the creditor. If the debtor made a corresponding entry in his ledger, this was a conclusive proof that he had consented to the creditor's entry; but if he did not, then the creditor might still prove, in any way that he could, that he had really made his entry with the debtor's consent. Of course, if he had really paid the money over, this, if proved, would show beyond a doubt that the debtor had consented.

The foundation of this contract literis being the payment of a sum certain by the creditor, the obligation was always for a sum or certain thing, and was therefore enforced by condictio certi, more usually termed simply condictio.

As the creditor put down the name of his debtor, the word 'nomen' came to signify a debt; and Gaius speaks of nomina transcripticia.' He says transcriptio took place (1) a re in personam, as when something being already owed, as, for instance, under a contract of sale or of letting to hire, the debtor assented to the creditor making an entry of the debt (GAI. iii. 129): this operated as a novatio (see Introd. sec. 89) of the old debt, and the creditor could now employ a condictio to enforce his claim; (2) the transcriptio took place a persona in personam, viz. when one man took on himself the debt of another. (GAI. iii. 130.) In both cases the effect was that the debtor recognised that a fictitious loan had been made to him. He assented to its being recorded in the codex that he had received in account what he owed on the sale, or what the third person, whose debt he was taking over, had received.

These contracts were peculiar to Roman citizens. Peregrini had, as a substitute, syngrapha, signed by both parties, or chirographa, signed only by the debtor. These syngraphe and chirographa were not mere proofs of contract, but were instruments on which an action could be brought, and the making of which operated as a novation of an existing debt.

In every period of the law, if there was a formal verbal contract, the written contract was thought subsidiary, and was merged in the stipulation: as the text says, nascitur condictio, cessante scilicet verborum obligatione.

A contract formed literis was treated by the civil law just as the stipulation was treated as furnishing conclusive evidence of the liability. Fairly or unfairly, the debtor must abide by this contract. The prætor, however, when the debtor had not really received the money, permitted him to repel the action of the creditor by an exception called the exceptio non numeratæ pecuniæ,' by which the debtor insisted that the money which formed the consideration of the obligation had never been told or counted out to him; and here, contrary to the usual rule as to exceptions, the burden of proof was considered to fall on the plaintiff, i.e. the creditor. It was for him to prove that he had paid the money, not for the debtor to prove that he had not.