presumed by the plaintiff and required for carrying through the action in question. By a declaration in the affirmative sense, the defendant unconditionally undertook the defence to the extent covered by his statement; a traverse of the declaration, and false denial in general of the relation in question, or to the extent actually existing, made him liable to defensio in solidum' (Actiones interrogatoriae)." Callistr. Totiens heres in iure interrogandus est, . . . quotiens adversus eum actio instituitur et dubitat actor, qua ex parte is, cum quo agere velit, heres sit. Est autem interrogatio tunc necessaria, cum in personam sit actio et ita, si certum petetur, ne dum ignoret actor, qua ex parte adversarius defuncto heres exstiterit, interdum plus petendo aliquid damni sentiat.D. II, I, I pr.' Ulp. Voluit praetor adstringere eum qui convenitur ex sua in iudicio responsione, ut vel confitendo vel mentiendo sese oneret.-1. 4 pr. eod. Gai. Qui interrogatur, an heres vel quota ex parte sit, vel an in potestate habeat eum, cuius nomine noxali iudicio agitur, ad deliberandum tempus impetrare debet.-1. 5 eod.3 Paul. Si quis interrogatus de servo qui damnum dedit, respondit suum esse servum, The heir must always be interrogated before the Court when an action is being brought against him and the plaintiff is uncertain for what portion the person is heir whom he desires to sue. Now the interrogatory is necessary when the action is a personal one, and that if the subject of the action is definite, lest the plaintiff, whilst not knowing for what share his opponent has become heir to the deceased, sometimes should experience loss by claiming too much. 2 The Praetor aimed at binding the person sued by his answer before the tribunal, so that he might be weighted with his admission or his denial. 3 He that is asked whether he is heir, or for what part, or whether he has the person under his power on account of whom he is sued in a noxal action, ought to demand time for deliberation. BOOK IV. Chapter II. a § 171. BOOK IV. Chapter II. tenebitur lege Aquilia quasi dominus.-1. 8 eod.' Ulp. Si quis, cum heres non esset, responderit ex parte heredem esse, sic convenietur, atque si ex ea parte heres esset: fides enim ei contra se habebitur.-1. II, § I eod." Si, cum esset quis ex semisse heres, dixerit se ex quadrante, mendacii hanc poenam feret, quod in solidum convenitur.-Qui tacuit quoque apud praetorem, in ea causa est, ut instituta actione in solidum conveniatur, quasi negaverit se heredem esse: nam qui omnino non respondit, contumax est.-Ibid. §§ 3, 4.3 Paul. Si negavit dominus in sua potestate esse servum, permittit praetor actori arbitrium, utrum iureiurando id decidere an iudicium dictare sine noxae deditione velit, per quod vincet, si probaverit eum in potestate esse vel dolo eius factum, quo minus esset.-D. 9, 4, 22, 4.* Ulp. In potestate' sic accipere debemus, ut facultatem et potestatem exhibendi eius habeat : ceterum si in fuga sit vel peregre, non videbitur esse in potestate.-1. 21, § 3 eod." 1 If a man, when asked concerning a slave who has inflicted damage, answers that he is his slave, he will be liable by the 1. Aquilia, as if he were the master. 2 If any one, without being heir, shall answer that he is part heir, he will be sued in such way as if he were actually heir for a part; for credit will be given against himself. 3 If, when a man was heir for a half, he said he was heir for a fourth, he will suffer punishment for his falsehood, by being sued for the whole.-He that has maintained silence also before the Praetor is in this position, that by an action brought he is sued for the whole, as if he denied that he was heir; for a person that makes no answer commits contempt of court. 4 If the master has denied that a slave is under his power, the Praetor affords the plaintiff choice whether he will make the decision rest upon oath, or bring an action without noxal surrender, by means of which he will succeed if he shall prove that such slave is under the defendant's power, or that it is by a fraudulent act of his that he is not. "We must understand 'under power' thus: that the a BOOK IV. Chapter 11. The defendant who without cause refuses to be subjected to the action, or does not to the full extent comply with the duty of defence which devolves upon him-including the cautiones" or sponsiones he has « § 195. to give is treated as a confessus, like the iudicatus.'d § 193Ulp. Non defendere videtur . . . et is qui§ 27. d Cf. Ulp inst. praesens negat se defendere, aut non vult suscipere fgm. iv. (vi.); actionem.-D. 50, 17, 52.1 D. 6, I, 1. ult. Lex Rubria, cap. 21: A QVOQVOMQVE PECVNIA ... SEI IS . . . IVRE LEGE DAM $195. CAUTIONES IN PROCEDURE. For the guarantee of the possibly successful plaintiff, the defendant can be obliged in iure forthwith to give cautio to the former by way of security in the event of his condemnation-stipulatio (satisdatio) iudicatum solvi,'e This duty of cautio devolves upon the defendantas the possessor-as a rule in the case of, in rem, defendant has the capacity and power to produce him; but if he is a fugitive or abroad, he will not be regarded as under power. 1 He too is considered to have no defence who is present and declines to defend the action, or does not care to expose himself to it. ... 2 Whosoever shall be sued for a fixed sum of money owing [by whom aught save a fixed etc.] . . . if he shall confess such amount in court . . . or if he shall not make answer there in court concerning such matter, and shall enter into no engage. ment as to such matter, nor make a defence before the iudex in manner required, then precisely shall the proceeding be binding as statute or law, . . as if he . . . had been condemned by law or statute.' § 113. e Cf. Paterson, s. 1140. BOOK IV. Chapter 11. a Gai. iv. 16: See Hunter, p. 1026. actiones, especially the rei vindicatio' and the 'hereditatis petitio.' " a Ulp. Iudicatum solvi stipulatio tres clausulas in unum collatas habet: de re iudicata, de re defendenda, de dolo malo.-D. 46, 7, 6.1 Gai. iv. § 89: Si in rem tecum agam, satis mihi dare debes : aequum enim visum est te ideo quod interea tibi rem, quae an ad te pertineat dubium est, possidere conceditur, cum satisdatione mihi cavere, ut si victus sis nec rem ipsam restituas nec litis aestimationem sufferas, sit mihi potestas aut tecum agendi aut cum sponsoribus tuis. 91 Ceterum . . . si quidem per formulam petitoriam agitur, illa stipulatio locum habet quae appellatur iudicatum solvi,' si vero per sponsionem, illa quae appellatur pro praede litis et vindiciarum.' 72 Paul. i. 11, § 1: Quotiens hereditas petitur si satis non detur, in petitorem hereditas transfertur; si petitor satisdare noluerit, penes possessorem possessio remanebit in pari enim causa potior est possessor.3 1 The stipulation that the judgment shall be satisfied has three clauses united in one; concerning the judgment given, concerning defence of the matter, concerning fraudulent conduct." 2 If I sue you by an action in rem, you must give me security. For it has seemed fair that you should find me security in respect of such thing as you are allowed to have possession of meanwhile, your ownership of which is doubtful, so that if you are defeated, and neither restore the property itself nor pay the assessed damages, I may have power to sue either you or your sureties. But if proceedings be taken by means of a petitory formula, that stipulation called 'iudicatum solvi' is employed; but if by means of sponsion, that stipulation called 'pro praede litis et vindiciarum.' 3 Whenever claim is made to a heritage, . . . if security be not given, the heritage is made over to the claimant; if the claimant refuse to give security, possession will remain with the occupier, for in parity of circumstances the occupier is preferable. It is the same in respect of actiones in personam in certain cases only and upon special grounds. Gai. iv. § 102: Quodsi proprio nomine aliquis iudicium accipiat in personam, certis ex causis satisdare solet, quas ipse praetor significat; quarum satisdationum duplex causa est, nam aut propter genus actionis satisdatur, aut propter personam, quia suspecta est: propter genus actionis, velut iudicati depensive. . . ; propter personam, veluti si cum eo agitur qui decoxerit cuiusve bona a creditoribus possessa proscriptave sunt, sive cum eo herede agatur quem praetor suspectum aestimaverit.' § 196. REPRESENTATION. BOOK IV. Chapter 11. Representation in the formulary procedure is admissible to the widest extent." The representative, who a cf. 1.4, 10 pr. judicially enforces the claim of another-whether upon another's or his own account (procurator in rem suam) cr. § 144. -or defends the claim that is raised against a third party, becomes by the Litis Contestatio himself party to the proceedings.c Upon the expression of representation Gai. iv. § 82: Nunc admonendi sumus agere nos aut nostro nomine aut alieno, veluti cognitorio in the formula, procuratorio tutorio curatorio. Mac.:-procurator lite contestata dominus litis efficitur (D. 49, 1, 4, 5). litis contestatione res 1 But if any one be defendant on his own account in a personal action, it is usual to give security in certain cases indicated by the Praetor himself. There are two reasons for giving security; for it is either given on account of the nature of the suit, as in that upon a judgment, or for money paid by a surety . . . on account of the person, as when the defendant has incurred fraudulent bankruptcy, or possession of his goods has been taken, or they have been advertised for sale by his creditors, or when the proceedings are against an heir whose conduct the Praetor has deemed suspicious. 2 It is to be observed that we sue either in our own or another's name, as that of a cognitor, procurator, tutor, curator. see § 200. |