(a) days on which a proceeding could take place in iure' before the magistrate, which were the dies fasti appointed by the Calendar (in the Julian Calendar 55-56): standing court-days, originally the days upon which a legis actio could be entertained, conformably with the fas; in contrast, on the one hand, to the dies nefasti (upon which such a transaction contains a nefas, but other acts of jurisdiction appertaining to the imperium were allowed); on the other, with the dies comitiales, which were free for jurisdiction only if no assembly of the People took place. (B) For proceedings 'in iudicio' there were no established court-days, but they were restricted as to time by festivals and holidays. a BOOK IV. (2) After the judicial year (actus rerum) had a § 189. been further settled by Augustus, in respect of the services of jurors," it was afresh regulated by Marcus Aurelius, both for the magistrates with jurisdiction and for the iudices, in such way that it henceforth contained 230 court-days (dies iudiciarii). Upon the dies feriati' a valid judicial proceeding could take place alone exceptionally in certain pressing cases (causae exceptae), or by consent of the parties. In the Provinces a court was held (forum, conventum agere) by the governor, or his legatus, or quaestor delegated by him, in the chief places within the limits of his jurisdiction that were most visited by him (conventus), where at times appointed every year assemblies (conventus) took place. BOOK IV. Chapter II. a Gai. iv. 46. CHAPTER II. THE PROCEEDINGS. § 191. THE COMMENCEMENT OF THE SUIT. THE opening of the suit required the presence of the parties before the Court. As a rule-in ordinary proceedings-it was the business of the plaintiff to bring the defendant to the Court, in order judicially to make good his claim. For this purpose, according to the Twelve Tableswith certain exceptions-where he met with the opponent, and without alleging his legal claim, he possessed the in ius vocatio (in case of necessity, accompanied by the employment of force-manus iniectio), with which the party summoned must at once comply, and he could only avoid it by furnishing a Vindex, who took the action upon himself (but cum poena dupli). The Praetorian Edict assured operation to the in ius. vocatio by penal actions against the opponent who was unsubmissive, or furnished no vindex, as well as against him that by force withdrew the latter from the in ius vocatio.a Lex XII tabularum: SI IN IVS VOCAT, ITO; NI IT, ANTESTAMINO: IGITVR EM CAPITO. SI CALVITVR PEDEMVE STRVIT, MANVM ENDO IACITO. SI MORBVS AEVITASVE VITIVM ESCIT, IVMENTVM DATO; SI NOLET ARCERAM NE STERNITO. ADSIDVO VINDEX ADSIDVVS ESTO; PROLETARIO (CVI? IAM CIVI?) QVIS VOLET VINDEX ESTO.1 1 A man when summoned before a magistrate, shall go; in default of his going, let the plaintiff call bystanders to witness: then shall he take him. If he shirks or runs away, the plaintiff shall lay hands on him. If illness or age be an impediment, the plaintiff shall provide a beast of burden; if the defendant refuse, the plaintiff need not provide a carriage. The protector of a landowner must be a landowner; whosoever likes shall be protector to a citizen that is a proletarius (of the lowest class). ... ... Ulp. In ius vocari non oportet . . . magis- Praetor ait: PARENTEM, PATRON VM PATRONAMVE, PERMISSV MEO NE QVIS VOCET.-1. 4, § I eod.* BOOK IV. Chapter II. Plerique putaverunt nullum de domo sua in ius vocari licere.-Sed si aditum ad se praestet aut ex publico conspiciatur, recte in ius vocari eum Iulianus ait. Sed . . . de domo sua nemo extrahi debet.—1. 18 (Gai.), ll. 19, 21 (Paul.) eod.3 In place of the in ius vocatio, later on the private and voluntary promissio offered to the plaintiff (with or without giving security or a penal promise) by the defendant, or by another for him-upon a certain day to present himself in iure (radimonium satisdatio iudicio sisti ")" became increasingly customary See Brown, s. and acquired recognition in the Praetorian Edict. = cautio s. a Satisdatio; b Infra. In the Provinces a simple notification of the suit by 1140. the plaintiff to the defendant (litis denuntiatio), with the summons to appear at the next conventus,' took the place of the in ius vocatio, which here indeed was not applicable. In the later Law-although from the time of Marcus 1 There must be no summoning to court of magistrates having public authority. . . . Moreover, a bridegroom or bride ought not to be summoned, nor a iudex whilst engaged in trying a cause, nor any person so long as he is engaged in proceedings before the Praetor, nor he that conducts the funeral of one of his family. 2 The Praetor says: 'Let no one without my permission summon a parent, a patron or patroness, the children or parents of a patron or patroness.' 3 Very many have been of opinion that it is unlawful to summon a man from his own house.-But if he afford access to his person, or be seen in public, Julian says it is lawful for him to be summoned. BOOK IV. Chapter II. a Cf. § 204. Aurelius, but this is very doubtful-the general formality for commencing the suit was the litis denuntiatio (in the beginning by private testatio, from the time of Constantine by declaration upon record in the presence of a magistrate), the place of which finally, in the Law of Justinian, was taken by the delivery of a bill of complaint (libellus conventionis) before the competent judge, to ground issue of a summons against the defendant. If the in ius vocatio or summons' vadimonium promittere' was impossible because of an obstacle affecting the opponent personally, or if he, notwithstanding the giving of vadimonium, did not appear in iure (vadimonium desertum), he was accounted indefensus,' and according to the Praetorian Edict, execution attached against his property (missio in possessionem, and further, according to circumstances, bonorum venditio)." Cic. p. Quinctio 19, 60: Edictum : QVI FRAV DATIONIS CAVSA LATITARIT.-CVI HERES NON EX- Praetor ait: QVI FRAVDATIONIS CAVSA LATITABIT, Ulp. Praetor ait: IN BONA EIVS, QVI IVDICIO SISTENDI CAVSA FIDEIVSSOREM DEDERIT, SI NEQVE POTESTATEM SVI FACIET NEQVE DEFENDETVR, IRI IVBEBO. Quid si non latitet, sed absens non 1 The Edict (runs): 'He that with fraudulent intent shall have absconded.'-' He that shall be without an heir.'-' He that shall have quitted the country by reason of exile.'—' He that by failing to appear before the iudex shall be unrepresented.' The Praetor says: 'If a man shall keep out of the way with fraudulent intent, and in the opinion of an honourable man be not represented, I will order possession and sale of his goods.' defendatur? Nonne videtur potestatem sui non Paul. Cum dicitur: ET EIVS, CVIVS BONA : Ulp. Haec autem locum habent, quotiens pupillus non defendatur a quocumque, sive habeat tutorem pupillus sive non habeat.-1. 5 pr. eod.3 If the formal opening of the suit could not take place already upon the first appearance in iure, or if the proceedings by way of instructions could not be finished (e.g., because of insufficient legitimation of the parties, or because the defendant refused immediate confession upon justifiable grounds), so as to avoid a repeated in ius vocatio, already according to the Twelve Tables, but further developed by the Praetorian Edict, the duty devolved upon the defendant, as ordered by the magistrate, to give vadimonium (limited to a The Praetor says: 'I will order seizure of the goods of him that shall have given security for his appearance before the court, if he shall neither himself appear nor be represented.' What if he do not keep out of the way, but is not represented in his absence? Does he not also seem not to be available? 2 When it is said, 'And let them sell such person's goods of which the creditors have taken possession, except such as belong to a ward or a person who without bad intention was absent on state affairs,' the meaning is, that the property of one who shall be absent with evil intention can be sold. § If a man has been captured by the enemy, his creditors must be put in possession, but so that the sale of the property must not be allowed immediately, but a curator be appointed over it for the meantime. Now these rules apply whenever a ward is not represented by some one or other, whether he have a guardian or not. BOOK IV. Chapter II. |