The sons of a family could be sued for delicts, and then the plaintiff could by an action judicati recover from the father up to the amount of the peculium.

TIT. IX. SI QUADRUPES PAUPERIEM FECISSE

DICETUR.

Animalium nomine, quæ ratione carent, si quidem lascivia aut fervore aut feritate pauperiem fecerint, noxalis actio lege duodecim tabularum prodita est (quæ animalia si noxæ dedantur, proficiunt reo ad liberationem, quia ita lex duodecim tabularum scripta est); puta si equus calcitrosus calce percusserit aut bos cornu petere solitus petierit. Hæc autem actio in his, quæ contra naturam moventur, locum habet: ceterum si genitalis sit feritas, cessat. Denique si ursus fugit a domino et sic nocuit, non potest quondam dominus conveniri, quia desiit dominus esse, ubi fera evasit. Pauperies autem est damnum sine injuria facientis datum: nec enim potest animal injuriam fecisse dici, quod sensu caret. Hæc quod ad noxalem actionem pertinet.

A noxal action is given by the law of the Twelve Tables, when irrational animals, through wantonness, rage, or ferocity, have done any damage; but if the animals are delivered up in satisfaction for the damage done, the owner is secured against any action; such is the law of the Twelve Tables; as, for example, if a kicking horse should kick, or an ox, apt to gore, should inflict an injury with his horns. But this action can only be brought in the case of animals acting contrary to their nature, for, when the ferocity of a beast is innate, no action can be brought, so that, if a bear breaks loose from his master, and has so done mischief, the master cannot be sued; for he ceased to be the master as soon as the wild beast escaped. The word pauperies denotes a damage done without any wrong intent: for an animal void of reason cannot be said to have had a wrong intent. Thus much as to noxal actions.

D. ix. 1. 1. pr. 3, 4. 7. 10.

Although in the Twelve Tables the word quadrupes was used, all animals were held to be included under it.

The distinction noticed in the text is that between an animal with an inborn fierceness (genitalis feritas) and one with a confirmed vicious habit (calcitrosus, petere solitus). The owner of the latter only was liable to the actio noxalis given by the Twelve Tables.

If an animal fierce by nature did any damage while in the keeping of any one, his keeper would be liable to an actio utilis, though not to the direct actio noxalis given by the law of the Twelve Tables. (See next paragraph.)

1. Ceterum sciendum est, ædilitio edicto prohiberi nos canem, verrem, aprum, ursum, leonem ibi habere, qua vulgo iter fit: et si adversus ea factum erit et nocitum homini libero esse dicetur, quod bonum et æquum judici videtur, tanti dominus condemnetur, cete

1. It must be observed, that the edict of the ædile forbids any man to keep a dog, a boar, a wild boar, a bear, or a lion, where there is a public road: and, if this prohibition is disobeyed, and thus any freeman receives hurt, the master of the beast may be condemned at the discretion of the judge;

H H

rarum rerum, quanti damnum datum sit, dupli. Præter has autem ædilicias actiones et de pauperie locum habebit: numquam enim actiones præsertim pœnales de eadem re concurrentes alia aliam consumit.

and, in case of damage to anything else, the condemnation must be in double the amount of damage done. Besides the ædilitian action, the action de pauperie may also be brought against the same person; for when different actions, especially penal actions, may be each brought on account of the same thing, the employment of one does not prevent the employment of another.

D. ix. 4. 2. 1; D. xxi. 1. 40. 1 ; D. xxi. 1. 41, 42; D. xliv. 7. 60.

The same delict might be resolvable into two distinct offences. A slave is corrupted, and then made to commit a theft. A separate action lay for each offence. Or the same delict, though consisting of one offence, might come under two heads of delict. A slave is injured by being beaten, and an action would lie injuriarum, or under the lex Aquilia. The master might bring both actions in succession, but he would only recover in the second any special advantages which that action might give him beyond what the first had given. (D. xliv. 7. 34. pr.)

TIT. 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. Præterea lege Hostilia permissum est furti agere eorum nomine, qui apud hostes essent aut rei publicæ causa abessent quive in eorum cujus tutela essent. Et quia hoc non minimam incommoditatem habebat, quod alieno nomine neque agere neque excipere actionem licebat, cœperunt homines per procuratores litigare: nam et morbus et ætas et necessaria peregrinatio itemque aliæ multæ causæ sæpe impedimento sunt, quo minus rem suam ipsi exsequi possint.

We must now remark, that a person may conduct an action either in his own name, or in that of another, as, for instance, if he is a procurator, a tutor, or a curator; but anciently, custom forbade one person conducting an action in the name of another, unless for the people, for freedom, or for a pupil. The lex Hostilia afterwards permitted an actio furti to be brought in the names of those who were prisoners in the hands of an enemy, of persons absent in the service of the state, or of those under the tutorship of such persons. But, as it was found to be exceedingly inconvenient, that one man should be prohibited from bringing or defending an action in the name of another, it by degrees became a practice to sue by procurators. For ill-health, old age, unavoidable journeys, and many other causes, continually prevent men from being able to attend personally to their own affairs.

GAI. iv. 82; D. 1. 17. 123; D. iii. 3. 1, 2.

The old principle of Roman law was, that no one could represent another, and, with the exceptions noticed in the text, this principle was rigorously observed during the period of the actions of law.

By agere pro populo was meant bringing an actio popularis (eam popularem actionem dicimus quæ suum jus populo tuetur, D. xlvii. 23. 1); by agere pro libertate was meant becoming assertor libertatis for a slave; and by agere pro tutela, bringing an action on behalf of a pupil.

Under the system of formula, the first step towards breaking through the old rule was the permitting a cognitor to be appointed. A cognitor was a person who was appointed by one of the parties to a suit to conduct it for him. The cognitor himself was not necessarily present when he was appointed, but it was necessary that the appointment should be made before the magistrate, in presence of the adversary, and by a certain form of words. For instance, a plaintiff speaking generally of his action would say, Quod ego tecum agere volo, in eam rem Lucium Titium cognitorem do.' Other forms, adapted to other cases, are given in Gaius (iv. 83). In the case of a cognitor, the actio judicati was for or against the party to the suit.

The next step was to permit a procurator appointed by a mandate to conduct a suit, but at first he did so in his own name, for it was not till a later period of Roman law that a procurator could expressly represent his principal. He had accordingly, if plaintiff, to give security ratam rem dominum habiturum, and, if defendant, to give security judicatum solvi, as explained in the next Title. If a person offered to conduct a suit for another as procurator voluntarius, and could not produce an authorisation, he was allowed to act, not as mandatary, but as negotiorum gestor, if he acted in good faith, and gave security for ratification. (GAI. iv. 84.) The actio judicati lay for or against the procurator, and not the party. Subsequently, when the mandate was clear, or if the mandator was present and gave it, the procurator was considered as only representing the party, and the actio judicati was given to or against the party, not the procurator (Vat. Frag. 331), and this was extended to the case of the negotiorum gestor, who, although at first acting without a mandate, afterwards showed that the party approved what he did. Thus the procurator had taken the place of the cognitor, and it is only of the former that Justinian speaks.

1. Procurator neque certis verbis neque præsente adversario, immo plerumque ignorante eo constituitur: cuicumque enim permiseris rem tuam agere aut defendere, is procurator intellegitur.

GAI. iv. 84; D.

2. Tutores et curatores quemadmodum constituuntur, primo libro expositum est.

1. A procurator is appointed without any particular form of words, nor is the presence of the adverse party required; indeed, it is generally done without his knowledge. For any one is considered to be your procurator whom you have allowed to bring or to defend an action for you. iii. 3. 1. 1. 3.

2. How tutors and curators are appointed has been already explained in the First Book.

GAI. iv. 85.

If the tutor, in appearing for the pupil, had merely discharged a duty forced upon him, the actio judicati (i.e. the action brought to enforce the sentence) was given to or against the pupil. If the tutor chose to appear for the pupil when he need have done nothing more than authorise the pupil to appear himself (si se liti obtulit), the actio judicati was given to or against the tutor. The case was the same as regards the curators of persons under the age of twenty-five. (D. xxvi. 7. 2. pr.; D. xxvi. 9. 5. pr.)

TIT. 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 æstimationem, potestas esset petitori aut cum eo agendi aut cum fidejussoribus ejus. Quæ satisdatio appellabatur judicatum solvi: unde autem sic appellabatur, facile est intellegere. Namque stipulabatur quis, ut solveretur sibi, quod fuerit judicatum. Multo magis is, qui in rem actione conveniebatur, satisdare cogebatur, si alieno nomine judicium accipiebat. Ipse autem, qui in rem agebat, si suo nomine petebat, satisdare non cogebatur. Procurator vero si in rem agebat, satisdare jubebatur 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 agentibus satisdatio remittebatur. Hæc ita erant, si in rem agebatur.

One system of taking securities prevailed in ancient times; custom has introduced another in modern times. Formerly, in a real action the possessor was compelled to give security, so that if he lost his cause, and did not either restore the thing itself, or pay the estimated value of it, the plaintiff might either sue him or his sureties: this species of security was termed judicatum solvi, nor is it difficult to understand why it was so called. For the plaintiff used to stipulate that what was adjudged to him should be paid. And with still greater reason was a person sued in a real action obliged to give security if he was defendant in the name of another. A plaintiff in a real action suing in his own name, was not obliged to give security; but a procurator bringing a real action had to give security that his acts would be ratified by the person for whom he acted; for there was a danger lest the person should bring a fresh action for the same thing. By the words of the edict, tutors and curators were bound to give security, as well as procurators, but it was sometimes dispensed with when they were the plaintiffs. was the practice with regard to real actions.

GAL. iv. 89. 91. 96. 98-100; D. xlvi. 7. 6.

Such

Judicatum solvi stipulatio tres clausulas in unum collatas habet: de re judicata, de re defendenda, de dolo malo. (D. xlvi. 7. 6.) There were three objects secured by the cautio judicatum solvi.. It was promised (1) that the litis æstimatio, the amount of what was adjudged by the sentence, should be paid if the defendant should be condemned and should not give back the thing; (2) that the defendant should appear to receive the sentence of the judge; (3) that the defendant should use no dolus malus, should not, for instance, give back the thing, but give it in a state dete

riorated by his fault. The object of the defendant, as well as the sureties, binding himself for the litis æstimatio (aut cum eo agendi, says the text, aut cum fidejussoribus), was to give the plaintiff his choice between an action ex stipulatu, which was often preferred, or one ex judicato, i.e. upon, or to enforce, the sentence. The object of making the defendant directly liable, by a stipulation, if he did not appear to defend the action, was to avoid having recourse to the less direct mode in which the disobedience of the defendant to obey the magistrate's summons was made to benefit the plaintiff.

Satisdare possessor compellebatur. If the possessor would not give the cautio judicatum solvi, the possession, by means of an interdict (see Tit. 15. 3), was transferred to the plaintiff, if he was willing to give the security which his adversary refused to give.

Litis æstimatio. Lis here signifies the subject of the suit. Multo magis si alieno nomine. This applied to the procurator in the days when he did not really represent the principal. The cognitor never gave security. The person really interested in the action was called dominus litis; when the procurator did not represent him, but came forward as if he was the dominus litis, it was necessary to guard against the real dominus litis bringing

another action.

Tutors had probably to give security in all cases where they were the party defendant.

1. Sin vero in personam, ab actoris quidem parte eadem obtinebant, quæ diximus in actione, qua in rem agitur. Ab ejus vero parte, cum quo agitur, si quidem alieno nomine aliquis interveniret, omnimodo satisdabat, quia nemo defensor in aliena re sine satisdatione idoneus esse creditur. Quod si proprio nomine aliquis judicium accipiebat in personam, judicatum solvi satisdare non cogebatur.

1. In personal actions, on the part of the plaintiff, the same rules as to giving security were observed as in real actions. As to the defendant, if he appeared in the name of another, he was obliged to give security, for no one was considered a competent defendant in behalf of another unless he gave security; but any one who defended a personal action in his own name was not compelled to give the security judicatum solvi. GAI. iv. 100-102.

If the defendant was a cognitor, the dominus litis gave security for him. (Vat. Fragm. 317.)

Gaius notices (iv. 102) that in some few exceptional instances, as if the action was one judicati, or if there was anything to make the credit of the defendant suspected, the defendant was obliged in personal actions to give security judicatum solvi.

2. Sed hæc hodie aliter obser- 2. At present a different practice vantur. Sive enim quis in rem ac- prevails. A defendant who is sued tione convenitur sive personali suo in his own name, either in a real or nomine, nullam satisdationem pro- personal action, is not forced to give pter litis æstimationem dare com- security for the payment of the estipellitur, sed pro sua tantum persona, mated value of the thing sued for, but quod in judicio permaneat usque ad only for his own person, that is, that terminum litis, vel committitur suæ he will remain and abide the judgment