bant, ne facile homines ad litigandum procederent: quod et nobis studio est. Idque eo maxime fieri potest, quod temeritas tam agentium quam eorum, cum quibus agitur, modo pecuniaria pœna, modo jurisjurandi religione, modo metu infamiæ coercetur.

always sought most anxiously to hinder men from engaging too recklessly in law-suits, and it is what we ourselves desire also. And the best method of succeeding in it is, to repress the rashness alike of plaintiffs and of defendants, sometimes by a pecuniary penalty, sometimes by the sacred tie of an oath, sometimes by the fear of infamy.

GAI. iv. 174, and foll.

The

In the days of Gaius, the means of punishing persons who recklessly brought or defended a suit were more numerous. 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 (GAI. 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 omnibus, qui conveniuntur, ex nostra constitutione defertur: nam reus non aliter suis allegationibus utitur, nisi prius juraverit, quod putans, se bona instantia uti, ad contradicendum pervenit. At adversus infitiantes ex quibusdam causis dupli actio constituitur, veluti si damni injuriæ aut legatorum locis venerabilibus relictorum nomine agitur.

1. And first, under our constitution, an oath is administered to all defendants. For the defendant is not admitted to state his defence until he has sworn that it is from a persuasion of the goodness of his own cause that he resists the demand of the plaintiff. In many cases the action is raised so far as to be the double or treble value against those who deny ; for instance, in the case of wrongful

Statim autem ab initio pluris quam simpli est actio veluti furti manifesti quadrupli, nec manifesti dupli: nam ex his causis et aliis quibusdam, sive quis neget sive fateatur, pluris quam simpli est actio. Item actoris quoque calumnia coercetur : nam etiam actor pro calumnia jurare cogitur ex nostra constitutione. Utriusque etiam partis advocati jusjurandum . subeunt, quod alia nostra constitutione comprehensum est. Hæc autem omnia pro veteris calumniæ actione introducta sunt, quæ in desuetudinem abiit, quia in partem decimam litis actorem multabat, quod nusquam factum esse invenimus sed pro his introductum est et præfatum jusjurandum et ut improbus litigator etiam damnum et impensas litis inferre adversario suo cogatur.

damage, or of legacies left to holy places. The action is from the very beginning for more than the single value in such cases as the action furti manifesti, where it is for the quadruple value, and that furti nec manifesti, where it is for the double. In these cases and in some others, whether the defendant denies or confesses, the action is for more than the single value. The litigiousness of the plaintiff is also restrained, for he is obliged by our constitution to take the oath de calumnia. The advocates also of each party take an oath prescribed by another of our constitutions. All these formalities have been introduced to replace the old action calumniæ, which is fallen into disuse, for it subjected the plaintiff to a fine of the tenth of the value of the thing in dispute; but we have never known this penalty enforced. In its stead, there has, in the first place, been introduced the oath we have just mentioned; and, in the next place, a person who brings a groundless action is made to reimburse his adversary for all losses and expenses he has been put to.

GAI. iv. 173; C. ii. 59. 2; C. iii. 1. 13. 6; C. iii. 1. 14. 1.

For the terms of these oaths see C. ii. 59. 2; C. iii. 1. 14. 1.

2. Ex quibusdam judiciis damnati ignominiosi fiunt, veluti furti, vi bonorum raptorum, injuriarum, de dolo, item tutelæ, mandati, depositi directis, non contrariis, actionibus, item pro socio, quæ ab utraque parte directa est, et ob id quilibet ex sociis eo judicio damnatus ignominia notatur. Sed furti quidem aut vi bonorum raptorum aut injuriarum aut de dolo non solum damnati notantur ignominia, sed etiam pacti : et recte ; plurimum enim interest, utrum ex delicto aliquis an ex contractu debitor sit.

2. In certain actions the person condemned becomes infamous, as in the actions furti, vi bonorum raptorum, injuriarum, de dolo; as also in the actions tutela, mandati, depositi, if direct, but not if contrary; and also in the action pro socio, which is direct, by whichever of the contracting parties it may be brought, and in which infamy is attached to whichever of these parties may be condemned. But in the actions furti, vi bonorum raptorum, injuriarum, and de dolo, it is not only those condemned that are branded 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 a delict, and by a contract.

GAI. iv. 182; D. iii. 2. 7.

Directis non contrariis. Contraria 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 instituendarum principium ab ea parte edicti proficiscitur, qua prætor edicit de in jus vocando: utique enim in primis adversarius in jus vocandus est, id est ad eum vocandus est, qui jus dicturus sit. Qua parte prætor parentibus et patronis, item liberis parentibusque patronorum et patronarum hunc præstat honorem, ut non aliter liceat liberis libertisque eos in jus vocare, quam si id ab ipso prætore postulaverint et impetraverint et si quis aliter vocaverit, in eum pœnam solidorum quinquaginta constituit.

3. In bringing any action, the first thing is, to comply with that part of the edict in which the prætor treats of the vocatio in jus. For the defendant must always be summoned in jus, i.e. before the magistrate who has to pronounce the law. In this part of the edict the prætor wishes that such respect should be shown towards ascendants, patrons, and even towards the ascendants and children of patrons of both sexes, that children and freedmen cannot summon them in jus, unless they have first obtained permission from the prætor; and he subjects persons who summon them without having obtained the prætor's permission, to a penalty of fifty solidi.

GAI. 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 dispiciamus. Et quidem in primis illud observare debet judex, ne aliter judicet, quam legibus aut constitutionibus aut moribus proditum est.

It remains to treat of the office of the judge. His first care ought to be, never to judge otherwise than according to the laws, the constitutions, or customary usage.

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. nɔte), the sentence was treated as void without any appeal being necessary. If the judge was mistaken, as, for instance, in the mode in which

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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. 12), 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 est, observare debet, ut, si condemnandus videbitur dominus, ita debeat condemnare: Publium Mævium Lucio Titio decem aureis condemno aut noxam dedere.'

1. Consequently, if appointed to try a noxal action, he must observe, if he thinks the master ought to be condemned, that the proper form of condemnation is as follows: 'I condemn Publius Mævius to pay ten aurei to Lucius Titius, or to abandon the cause of the injury.'

D. xlii. 1. 6. 1.

2. Et si in rem actum sit, sive contra petitorem judicavit, absolvere debet possessorem, sive contra possessorem, jubere eum debet, ut rem ipsam restituat cum fructibus. Sed si in præsenti neget se possessor restituere posse et sine frustratione videbitur tempus restituendi causa petere, indulgendum est ei, ut tamen de litis æstimatione caveat cum fidejussore, si intra tempus, quod ei datum est, non restituisset. Et si hereditas petita sit, eadem circa fructus interveniunt, quæ diximus intervenire in singularum rerum petitione. Illorum autem fructuum, quos culpa sua possessor non perceperit, in utraque actione eadem ratio pæne habetur, si prædo fuerit. Si vero bona fide possessor fuerit, non habetur ratio consumptorum neque non perceptorum: post inchoatam autem petitionem etiam illorum ratio habetur, qui culpa possessoris percepti non sunt vel percepti consumpti sunt.

2. In a real action, if he determines against the claimant, he ought to absolve the possessor; if against the possessor, he ought to order the possessor to give up the thing itself together with the fruits. But if the possessor states that it is out of his power to give up the thing at once, and his request for delay seems honestly made, some indulgence should be accorded him; but he must first furnish a fidejussor to give security to the amount of the value of the thing in dispute, in case he should not restore it within the time allowed him. If an inheritance is claimed, the rules with regard to the fruits are the same as those we have laid down in the case of particular things. Of the fruits not gathered by the fault of the possessor, account is taken almost in the same way in both actions, when the possession is mala fide. The bona fide possessor has not to account for fruits, whether consumed or not gathered. But from the time when the claim is made, the possessor has to account for all fruits not gathered through his fault, or gathered and consumed.

D. vi. 1. 17. 1; D. vi. 1. 35. 1; D. vi. 1. 62. 1; C. iii. 32. 22.

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 fuerit, non sufficit, si exhibeat rem is, cum quo actum est, sed opus est, ut etiam causam rei debeat exhibere, id est ut eam causam habeat actor, quam habiturus esset, si, cum primum ad exhibendum egisset, exhibita res fuisset ideoque si inter moras usucapta sit res a possessore, nihilo minus condemnabitur. Præterea fructuum medii temporis, id est ejus, quod post acceptum ad exhibendum judicium ante rem judicatam intercessit, rationem habere debet judex. Quod si neget is, cum quo ad exhibendum actum est, in præsenti exhibere se posse et tempus exhibendi causa petat idque sine frustratione postulare videatur, dari ei debet, ut tamen caveat, se restituturum: quod si neque statim jussu judicis rem exhibeat neque postea exhibiturum se caveat, condemnandus est in id, quod actoris intererat ab initio rem exhibitam esse.

3. In the action ad exhibendum it is not sufficient that the defendant exhibits the thing, but he must also exhibit all that shows the circumstances in which the thing is, that is, he must place the claimant in the same position as he would have been in, if the thing had been exhibited immediately on the demand being made. If therefore, during the delay, the possessor completes the usucapion of the thing, he will still be condemned. The judge ought also to make him account for the fruits of the intermediate time, that is, of the time elapsed between the granting the action ad exhibendum and the sentence. If the defendant in this action states that it is out of his power to make the exhibition immediately, and asks for time, and his request for delay seems honestly made, he should have time given him, but he must first give security that he will give the thing up. 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.

D. x. 4. 9. 5, 6; D. x. 4. 12. 4, 5.

4. Si familiæ erciscundæ judicio actum sit, singulas res singulis heredibus adjudicare debet et, si in alterius persona prægravare videatur adjudicatio, debet hunc invicem coheredi certa pecunia, sicut jam dictum est, condemnare. Eo

4. In the action familiæ erciscunda, he ought to adjudge each object to each heir separately, and if any one heir has more than his share adjudged him, the judge ought, as we have said above, to condemn him to pay his coheir a fixed sum as an