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bant, ne facile homines ad litigandum always sought most anxiously to hinder procederent: quod et nobis studio men from engaging too recklessly in est. Idque eo maxime fieri potest, law-suits, and it is what we ourselves quod temeritas tam agentium quam desire also. And the best method of eorum, cum quibus agitur, modo succeeding in it is, to repress the rashpecuniaria pæna, modo jurisjurandi ness alike of plaintiffs and of defendreligione, modo metu infamiæ coer- ants, sometimes by a pecuniary penalty, cetur.
sometimes by the sacred tie of an oath,
sometimes by the fear of infamy. Gai. iv. 174, and foll.
In the days of Gaius, the means of punishing persons who recklessly brought or defended a suit were more numerous. The plaintiff was restrained from recklessly bringing an action not only by being condemned in damages and costs, but (1) by an action of calumny-- that is, the defendant could bring against a plaintiff who had sued him dishonestly an action by which the defendant could recover one-tenth of what the plaintiff had claimed, if by action, and one-fourth of what he had claimed, if by interdict (Gal. iv. 175); (2) by what was termed the contrary action' the unsuccessful plaintiff, although he had honestly brought his action, was made to pay a tenth or a fifth of what he claimed, but then it was only failing in a few special actions, such as that injuriarum, that exposed him to this risk; (3) by oath, i.e. by the defendant calling on him to swear to his bona fides, but if the defendant did this, he could not afterwards bring an action of calumny, or the contrary action; and (4) by restipulatio, i.e. by being called on to wager a sum to be lost if he failed, which was allowed in certain actions; this mode of proceeding excluded the three others previously mentioned.
In the law as described by Gaius, the defendant was restrained from recklessly defending an action (1) by the sponsio, or wager that he had done all he was bound to do, allowed in certain actions (the sponsio and restipulatio made up the wager of the parties) ; (2) in certain actions, as, for instance, for deposit in case of necessity, the penalty was double in case of denial (Tit. 6. 17), and all actions with a penalty are looked on by Gaius as restraining the defendant (iv. 171); (3) if the case was one where no restraint operated under these first two heads, the defendant was obliged to take an oath of bona fides ; (4) certain actions carried infamy with them against the persons condemned.
1. Ecce enim jusjurandum omni- 1. And first, under our constitubus, qui conveniuntur, ex nostra tion, an oath is administered to all constitutione defertur: nam reus defendants. For the defendant is non aliter suis allegationibus utitur, not admitted to state his defence until nisi prius juraverit, quod putans, se he has sworn that it is from a persuabona instantia uti, ad contradicen- sion of the goodness of his own cause dum pervenit. At adversus infiti- that he resists the demand of the antes ex quibusdam causis dupli plaintiff. In many cases the action is actio constituitur, veluti si damni raised so far as to be the double or injuriæ aut legatorum locis venera- treble value against those who deny ; bilibus relictorum nomine agitur. for instance, in the case of wrongful Statim autem ab initio pluris quam damage, or of legacies left to holy simpli est actio veluti furti manifesti places. The action is from the very quadrupli, nec manifesti dupli : nam beginning for more than the single ex his causis et aliis quibusdam, sive value in such cases as the action furti quis neget sive fateatur, pluris quam manifesti, where it is for the quadruple simpli est actio. Item actoris quoque value, and that furti nec manifesti, where calumnia coercetur : nam etiam it is for the double. In these cases and actor pro calumnia jurare cogitur ex in some others, whether the defennostra constitutione. Utriusque dant denies or confesses, the action is
etiam partis advocati jusjurandum for more than the single value. The . subeunt, quod alia nostra consti- litigiousness of the plaintiff is also retutione comprehensum est. Hæc strained, for he is obliged by our conautem omnia pro veteris calumniae stitution to take the oath de calumnia. actione introducta sunt, quæ in de- The advocates also of each party take suetudinem abiit, quia in partem an oath prescribed by another of our decimam litis actorem multabat, constitutions. All these formalities quod nusquam factum esse inveni. have been introduced to replace the mus : sed pro his introductum est et old action calumnia, which is fallen præfatuim jusjurandum et ut impro- into disuse, for it subjected the plainbus litigator etiam damnum et im- tiff to a fine of the tenth of the value pensas litis inferre adversario suo of the thing in dispute ; but we have cogatur.
never known this penalty enforced.
he has been put to.
For the terms of these oaths see C. ii. 59. 2; C. iii. 1. 14. 1.
2. Ex quibusdam judiciis dam- 2. In certain actions the person nati ignominiosi fiunt, veluti furti, condemned becomes infamous, as in vi bonorum raptorum, injuriarum, the actions furti, vi bonorum raptorum, de dolo, item tutelæ, mandati, injuriarum, de dolo ; as also in the acdepositi directis, non contrariis, tions tutelæ, mandati, depositi, if direct, actionibus, item pro socio, quæ ab but not if contrary; and also in the utraque parte directa est, et ob id action pro socio, which is direct, by quilibet ex sociis eo judicio dam- whichever of the contracting parties natus ignominia notatur. Sed furti it may be brought, and in which inquidem aut vi bonorum raptorum famy is attached to whichever of these aut injuriarum aut de dolo non parties may be condemned. But in solum damnati notantur ignominia, the actions furti, vi bonorum raptorum, sed etiam pacti : et recte ; plurimum injuriarum, and de dolo, it is not only enim interest, utrum ex delicto those condemned that are branded aliquis an ex contractu debitor sit. with infamy, but also those who have
made a compromise with their opponents; and rightly, for there is a great difference between being debtor by :
delict, and by a contract. Gal. iv. 182 ; D. iii. 2. 7.
Directis non contrariis. Contrariæ actiones were such as those brought against the pupil, the mandator, or depositor, by the tutor, mandatary, or depositary. There could be no reason why infamy should attach to a pupil who did not know the
amount of the claims of the tutor, or to a depositor who did not know the amount of the expenses to which the depositary had been put.
The consequences of infamy were to prevent the guilty person from being a witness, receiving any public honours, or bringing a public prosecution. We have also seen (Tit. 13. 11) that, previous to the legislation of Justinian, a person declared infamous could not appear as procurator in the cause of another.
3. Omnium autem actionum in- 3. In bringing any action, the first stituendarum principium ab ea parte thing is, to comply with that part of edicti proficiscitur, qua prætor edi- the edict in which the prætor treats cit de in jus vocando : utique enim of the vocatio in jus. For the dein primis adversarius in jus vocan- fendant must always be summoned in dus est, id est ad eum vocandus est, jus, i.e. before the magistrate who has qui jus dicturus sit. Qua parte to pronounce the law. In this part of prætor parentibus et patronis, item the edict the prætor wishes that such liberis parentibusque patronorum et respect should be shown towards ascenpatronarum hunc præstat honorem, dants, patrons, and even towards the ut non aliter liceat liberis libertisque ascendants and children of patrons eos in jus vocare, quam si id ab ipso of both sexes, that children and freedprætore postulaverint et impetra- men cannot summon them in jus, unless verint : et si quis aliter vocaverit, in they have first obtained permission eum poenam solidorum quinqua- from the prætor; and he subjects ginta constituit.
persons who summon them without having obtained the prætor's permis
sion, to a penalty of fifty solidi. Gal. iv. 46 ; D. ii. 4. 1; D. ii. 4. 4. 1; D. ii. 4. 24.
The earliest method of vocatio in jus was to seize on the defendant, and drag him before a magistrate. Afterwards the seizing became symbolical, and the plaintiff called some one to witness that the defendant had been seized, but would not come.
Tit. XVII. DE OFFICIO JUDICIS.
Superest, ut de officio judicis · It remains to treat of the office of dispiciamus. Et quidem in primis the judge. His first care ought to be, illud observare debet judex, ne never to judge otherwise than accordaliter judicet, quam legibus aut ing to the laws, the constitutions, or constitutionibus aut moribus prodi- customary usage. tum est.
D. v. 1. 40. 1; D. xlviii. 10. 1. 3.
Judex qui contra sacras principum constitutiones, contra jus publicum quod apud se recitatum est, pronunciat, in insulam deportatur. (Paul. Sent. v. 25. 4.)
If the judge gave a sentence manifestly wrong, or if the sum was fixed in the condemnation by the prætor, and the judge condemned the defendant in a different sum (see Tit. 6. introd. note), the sentence was treated as void without any appeal being necessary. If the judge was mistaken, as, for instance, in the mode in which
he regarded some fact, an appeal was allowed, notice of which had to be given within two days (prolonged to ten days by Justinian in Nov. 23) after the sentence, or three days if a procurator, and not the party himself, had conducted the suit. There seems to have been no system of appeals under the Republic, further than that one magistrate of equal or higher standing could veto the acts of another. Under the Empire the emperor was the supreme judge of appeal, the technical term for an appeal to him being relatio. But Hadrian made the decisions on appeal of the Senate final (D. xlix. 2. 1:2), and Constantine made those of the prætorian præfect (C. vii. 62. 19). The præfect of the city and the præsides of provinces sat as intermediate judges of appeal for Rome and the provinces respectively (C. vii. 62. 2. 17 and 32). (See HUNTER, 885–889.)
1. Ideo si noxali judicio addictus 1. Consequently, if appointed to try est, observare debet, ut, si condem- a noxal action, he must observe, if he nandus videbitur dominus, ita de- thinks the master ought to be conbeat condemnare : 'Publium Mæ-, demned, that the proper form of convium Lucio Titio decem aureis con- demnation is as follows: 'I condemn demno aut noxam dedere.'
Publius Mævius to pay ten aurei to
of the injury.'
2. Et si in rem actum sit, sive 2. In a real action, if he determines contra petitorem judicavit, absol- against the claimant, he ought to abvere debet possessorem, sive contra solve the possessor; if against the possessorem, jubere eum debet, ut possessor, he ought to order the posrem ipsam restituat cum fructibus. sessor to give up the thing itself toSed si in præsenti neget se possessor gether with the fruits. But if the restituere posse et sine frustratione possessor states that it is out of his videbitur tempus restituendi causa power to give up the thing at once, petere, indulgendum est ei, ut tamen and his request for delay seems hode litis æstimatione caveat cum nestly made, some indulgence should fidejussore, si intra tempus, quod ei be accorded him ; but he must first datum est, non restituisset. Et si furnish a fidejussor to give security hereditas petita sit, eadem circa to the amount of the value of the fructus interveniunt, quæ diximus thing in dispute, in case he should intervenire in singularum rerum pe- not restore it within the time allowed titione. Illorum autem fructuum, him. If an inheritance is claimed, quos culpa sua possessor non per- the rules with regard to the fruits are ceperit, in utraque actione eadem the same as those we have laid down in ratio pæne habetur, si prædo fuerit. the case of particular things. Of the Si vero bona fide possessor fuerit, fruits not gathered by the fault of the non habetur ratio consumptorum possessor, account is taken almost in neque non perceptorum : post in the same way in both actions, when choatam autem petitionem etiam the possession is mala fide. The bona illorum ratio habetur, qui culpa pos- fide possessor has not to account for sessoris percepti non sunt vel per fruits, whether consumed or not cepti consumpti sunt.
gathered. But from the time when
What the words eadem ratio pæne habetur refer to is not easy to say. There do not seem to be any passages in the Digest which satisfactorily indicate any difference between the responsibilities of the mala fide possessor for fruits, according as the action was in rem, or was a petitio hereditatis.
Justinian here says that the position of a bona fide possessor was the same in the case of an inheritance and of a particular object; for that in neither case was he answerable for fruits gathered and consumed. But this was not the case after a senatusconsultum made in the time of Hadrian (D. v. 3. 20. 6), which made the bona fide possessor of an inheritance answerable for all that he had profited by (D. v. 3. 28); and he was therefore answerable for the fruits he had consumed. Perhaps the text may be based on some passage in the writings of a jurist who wrote before the senatusconsultum was made.
3. Si ad exhibendum actum fue- 3. In the action ad exhibendum it rit, non sufficit, si exhibeat rem is, is not sufficient that the defendant cum quo actum est, sed opus est, ut exhibits the thing, but he must also etiam causam rei debeat exhibere, exhibit all that shows the circumid est ut eam causam habeat actor, stances in which the thing is, that is, quam habiturus esset, si, cum pri- he must place the claimant in the same mum ad exhibendum egisset, exhi- position as he would have been in, if bita res fuisset : ideoque si inter the thing had been exhibited immemoras usucapta sit res a possessore, diately on the demand being made. nihilo minus condemnabitur. Præ- If therefore, during the delay, the terea fructuum medii temporis, id possessor completes the usucapion of est ejus, quod post acceptum ad the thing, he will still be condemned. exhibendum judicium ante rem The judge ought also to make him judicatam intercessit, rationem ha- account for the fruits of the intermediate bere debet judex. Quod si neget is, time, that is, of the time elapsed becum quo ad exhibendum actum est, tween the granting the action ad exhiin præsenti exhibere se posse et tem- bendum and the sentence. If the depus exhibendi causa petat idque sine fendant in this action states that it is frustratione postulare videatur, dari out of his power to make the exhibiei debet, ut tamen caveat, se resti- tion immediately, and asks for time, tuturum : quod si neque statim jussu and his request for delay seems hojudicis rem exhibeat neque postea nestly made, he should have time exhibiturum se caveat, condemnan- given him, but he must first give dus est in id, quod actoris intererat security that he will give the thing up. ab initio rem exhibitam esse. But if he neither exhibits the thing
at once, upon the order of the judge, nor gives security for exhibiting it afterwards, he must be condemned in an amount equivalent to the interest of the claimant in having it exhibited immediately.
4. Si familiæ erciscundæ judicio 4. In the action familiæ erciscunactum sit, singulas res singulis dæ, he ought to adjudge each object heredibus adjudicare debet et, si to each heir separately, and if any in alterius persona prægravare vi- one heir has more than his share addeatur adjudicatio, debet hunc in- judged him, the judge ought, as we vicem coheredi certa pecunia, sicut have said above, to condemn him to jam dictum est, condemnare. Eo pay his coheir a fixed sum as an