§ 77. Gaius explained the various modes by which a man might lose his freedom, 1§ 160. A person who fraudulently allowed himself to be sold with the view of sharing the purchase money, Inst. 1, 3, 4, a freedman ungrateful to his patron, Inst. 1, 16, 1, a woman who persisted in intercourse with a slave without the permission of the master, all forfeited their freedom, the last by a Senatusconsultum Claudianum which was repealed by Justinian, Inst. 3, 12, 1. In the law mentioned by Gaius, 1. c., a man who failed to register himself at the census (incensus) lost his freedom; and by the Twelve Tables the fur manifestus and insolvent debtor were assigned (addicti) to the injured party, though, apparently, 3 § 189, not reduced to slavery. § 78. Justinian decides in favour of the Sabinians, Inst. 4, 8, 6, that the action for the delict of a slave is extinguished, without possibility of future revival, when the delinquent slave comes into the power of the person aggrieved. §§ 80, 81. As to the probable contents of the lacuna, cf. Krueger and Studemund's Notes. The death of a delinquent slave before litis contestatio extinguished the liability of the master. The Autun fragments of interpretation of Gaius, which have recently been discovered (see Krueger's Edition of these Fragments in Krueger and Studemund's Gaius, 4th ed., App. p. xl, &c.), contain the following: Sed interest, utrum serui filiiue nomine noxalis actio propo[natur an] animalium; nam si serui filiiue nomine condemnatus fuit do[minus uel] pater poe*** in noxam dare etiam mortuum condemn noxali actione potest seruum etiam mortuum in noxam dare. [Et non solum si totum corpus det, liberatur, sed etiam si partem aliquam corporis. denique tr[actatur de] capillis et unguibus, an partes corporis sint. quidam enim dicunt- [-]tationi posita animal m[ortuum] dedi non potest. foris Quae ratio est, ut serui mortui etiam dedantur? uoluere [ imponere seruis uel filiis, ut delinquentes semet t[ uel potestatem dominorum ***. namque hoc uolebant liberari a dom[- Juus delinquebat, non poterat dare in usum aut reddere, dabat [- no xam Ergo cum praetor corpus te dedere dom[-] parentem putes — iure uti t[- domino uel parenti etiam occidere eum et mortuum dedere d[—]| patria potestas potest n[-] | cum patris potestas talis est, ut habeat uitae et necis pot[estatem]. De filio hoc tractari crudele est. sed ********* non est **n post r[dere, sed est hoc *** iure aut *** quod praebebit lex XII tabularum. sed deferre hoc [—] ¦ debet propter calumniam. Ergo ideo interest mortuum dedere [-]ter animalibus nec est nisi *****ctio** ponis his quae ratione [carent]. It would seem from the above that the dead body of a delinquent son or slave, or part of it, might be surrendered in satisfaction to the plaintiff, but not that of an animal which had caused injury to another (pauperies), though it is a question whether the noxal liability would continue if the son or slave were killed by the head of the household in the exercise of the jus vitae necisque. We know that the master of a slave did not escape such liability by his voluntary manumission (on the primitive conception of noxal liability, cf. Holmes, Common Law, chap. I). As the Romans became more civilized the noxal surrender of a son or daughter by the parent became repugnant to public feelings, and Justinian (Inst. 4, 8, 7) speaks of it as a thing of the past. Mischief (pauperies) occasioned by an animal might by a law of the Twelve Tables be atoned for by noxae deditio, Inst. 4, 9, and is probably the subject of the lacuna in the text. § 82. Nunc admonendi sumus agere nos aut nostro nomine aut alieno, ueluti cognitorio, procuratorio, tutorio, curatorio, cum olim,quo tempore legis actiones in usu fuissent, alieno nomine agere non liceret, praeterquam ex certis causis. Inst. 4, 10, pr. § 83. Cognitor autem certis § 82. A man may sue either on his own account or on account of another as his cognitor, procurator, guardian (tutor), or curator, whereas in the days of statute process a man could only sue on account of another in certain cases. § 83. A cognitor for a cause is uerbis in litem coram aduersario substituitur. nam actor ita cognitorem dat QVOD EGO A TE uerbi gratia FVNDVM PETO, IN EAM REM L. TITIVM TIBI COGNITOREM DO; aduersarius ita QVIA TV A ME FVNDVM PETIS, IN EAM (REM) TIBI P. MEVIVM COGNITOREM DO. potest ut actor ita dicat QVOD EGO TECVM AGERE VOLO, IN EAM REM COGNITOREM DO, aduersarius ita QVIA TV MECVM AGERE VIS, IN EAM REM COGNITOREM DO. nec interest, praesens an absens cognitor detur; sed si absens datus fuerit, cognitor ita erit, si cognouerit et susceperit officium cognitoris. appointed by a set form of words in the presence of the adversary. The form in which the plaintiff appoints a cognitor is the following: 'Whereas I sue you for, say, an estate, in that matter I appoint Lucius Titius as my cognitor;' the defendant thus: 'Whereas you sue me for an estate, in that matter I appoint Publius Maevius as my cognitor.' Or the plaintiff may use the words: 'Whereas I intend to sue you, in that matter I appoint Lucius Titius as my cognitor;' and the defendant these: Whereas you intend to sue me, in that matter I appoint Publius Maevius as my cognitor.' It is immaterial whether the person appointed cognitor is present or absent; but if an absent person is appointed, he is only cognitor if he consents and undertakes the office. § 84. A procurator is substi tuted in a suit for the principal without using any particular form of words, but simply by an informal mandate, and even in the absence and without the know ledge of the other party to the action. According to the opinion of some, a person may even become a procurator without a mandate if he undertakes the office in good faith and engages that the principal will ratify his proceeding. Although he who is acting under a mandate is also as a rule bound to give this security, the fact that he has a mandate being often concealed in the initial stage of the suit, and only coming to light subsequently when the parties are before the judge. § 85. How guardians and curators are appointed has been explained in the first book. § 86. He who sues on account mine agit, intentionem quidem P. MEVIO SESTERTIVM X MILIA PARET, ABSOLVE; in rem quo- §87. Ab aduersarii quoque parte si interueniat aliquis cum quo actio constituitur, intenditur dominum DARE OPORTERE, condemnatio autem in eius personam conuertitur qui iudicium accipit; sed cum in rem agitur, nihil (in) intentione facit eius persona cum quo agitur, siue suo nomine siue alieno aliquis iudicio interueniat; tantum enim intenditur REM ACTORIS ESSE. of another names the principal in the intentio and himself in the condemnatio. If, for example, Lucius Titius sues for Publius Mevius, the formula runs thus: 'If it be proved that Numerius Negidius ought to pay to Publius Mevius ten thousand sesterces, do thou, judex, condemn Numerius Negidius to pay to Lucius Titius ten thousand sesterces; if it be not proved, absolve him.' In a real action the thing is affirmed in the intentio to be the property of Publius Mevius by the law of the Quirites, and the representative is named in the condemnatio. § 87. When the defendant is represented by a cognitor or procurator in a personal action the principal is named in the intentio, and his representative in the condemnatio. In a real action neither the principal defendant nor his representative is named in the intentio, which only affirms that the thing be longs to the plaintiff. § 82. If there is a genuine antithesis between agere suo nomine and alieno nomine, the procuratorium, tutorium, &c., nomen, which is the alienum nomen with which the procurator or guardian sues, must mean the name, not of the procurator or guardian, but of the principal or ward. When a man sues suo nomine he uses his own name in the intentio; therefore it might at first sight be supposed. that when a man sues procuratorio nomine he would use the procuratorium nomen in the intentio: the name inserted in the intentio by a procurator is of course however not the name of the procurator but that of the principal, the name of the procurator being only inserted in the condemnatio, § 36. But Gaius is evidently using the word 'agere' here, not for the claim as set out in the intentio, but in a general sense. Statute-process was incapable of representation or procuration (alieno nomine agere), because it could not be modified for this purpose by the praetor; that is to say, it could not as in the formulary procedure frame a condemnatio, in which the procurator's name was substituted for that of the principal. Justinian enumerates the cases in which representation was permitted in statute-process: Cum olim in usu fuisset alterius nomine agere non posse, nisi pro populo, pro libertate, pro tutela: praeterea lege Hostilia permissum est furti agere eorum nomine, qui apud hostes essent aut rei publicae causa abessent quive in eorum cujus tutela essent. et quia hoc non minimam incommoditatem habebat, quod alieno nomine neque agere neque excipere actionem licebat, coeperunt homines per procuratores litigare, Inst. 4, 10, pr. Eam popularem actionem dicimus quae suum jus populo tuetur, Dig. 47, 23, 1. A popularis actio was one brought by a common informer to recover a penalty. The informer enforced, not a private but a public right, that is, sued as the procurator of the people; and therefore an infamis, as he was disabled from being procurator, was incompetent to prosecute in such an action. To public actions and actions by an adsertor libertatis (see 1 § 17, comm.) Justinian adds, as maintainable by a representative under the old jurisprudence, actions on behalf of a ward. We have already mentioned, 1 §§ 142145, comm., that until the ward attained the age of seven, when he ceased to be infans, the guardian had to bring actions for the ward; after the age of seven the ward maintained his own actions with the sanction of the guardian, though sometimes the latter did so on his behalf. § 84. A person who without a mandate undertook the defence of an absent neighbour was called negotiorum gestor (Inst. 3, 27, 1) or defensor, or procurator voluntarius. The employment of a cognitor, from the necessity of appointing him in the presence of the adversary and by a certain formula, was discontinued as inconvenient, and Justinian only speaks of the procurator. Bethmann-Hollweg, vol. 3, appendix 1, quotes from Symmachus the report of a case in which the defendant objected to a procurator (exceptio invalidae procura. tionis), and the plaintiff proved his appointment by production of a document from the praetor's record office (ex actis praetoriis) at a late stage of judicial proceedings. A procurator thus appointed by protocol was called procurator praesentis, or apud acta factus, and was to some extent in a similar position to that of a cognitor. Keller, Civil Process, § 52. § 88. Videamus nunc quibus ex causis is cum quo agitur uel hic qui agit cogatur satisdare. Inst. 4, 11, pr. § 89. Igitur si uerbi gratia in rem tecum agam, satis mihi dare debes; aequum enim uisum est (te) ideo quod interea $88. We next inquire under what circumstances the plaintiff or defendant is required to give security. § 89. If I sue you in a real action you must give me security. For as you are permitted during the suit to retain possession of a |