BOOK IV. Chapter 11. procuratoris fit eamque suo iam quodammodo nomine exsequitur.—D. 44, 4, 11 pr.' In the classical Law two kinds of representatives in procedure continue to be distinguished. (1) The Cognitor,' formally appointed in iure, is the authorised representative of the plaintiff in his original character. Gai. iv. § 83: Cognitor certis verbis in litem coram adversario substituitur, nam actor ita cognitorem dat: QVOD EGO A TE verbi gratia FVNDVM PETO, IN EAM REM LVCIVM TITIVM TIBI COGNITOREM DO; adversarius ita: QVOD TV A ME FVNDVM PETIS, IN EAM REM TIBI PVBLIVM MAEVIVM COGNITOREM DO. Potest, ut actor ita dicat: QVOD EGO TECVM AGERE VOLO, IN EAM REM COGNITOREM DO; adversarius ita: QVOD 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 cognoverit et susceperit officium cognitoris." (2) The Procurator'-at first indeed as 'pro 1 A procurator (attorney) is rendered master of the suit upon joinder of issue.-By commencement of the suit, the matter vests in the procurator, and he carries it on as it were in his own name. A cognitor is by certain words substituted for oneself in a cause, and in the opponent's presence. For the way in which the plaintiff appoints a cognitor is as follows: Whereas I am suing you for land,' for example, 'I appoint Luc. Tit. to be my cognitor against you for such matter.' The opponent appoints thus: Whereas you are suing me for the land, I appoint Publ. Maevius as my cognitor for such matter.' The plaintiff may say as follows: 'Whereas I am desirous of bringing an action against you, I appoint a cognitor for such matter'; and the defendant may say: 'Whereas you desire to bring an action against me, I appoint a cognitor for such matter.' The presence or absence of the cognitor at the time of his appointment is of no importance; but if he be absent at the time of his appointment, he will become cognitor only upon notice of the duty and acceptance thereof. BOOK IV. curator omnium rerum,' then also as 'procurator litis 'who was informally charged with the conduct Chapter II. of the proceedings, which (especially for the absent defendant) he could undertake even without a commission, but was always, in case of proceedings being brought, liable to defend the represented party even in opposition to claims enforced against him.a Ibid. § 84: Procurator vero nullis certis verbis in litem substituetur, sed ex solo mandato et absente et ignorante adversario constituitur : quin etiam sunt, qui putant eum quoque procuratorem videri, cui non sit mandatum, si modo bona fide accedat ad negotium et caveat, ratam rem dominum habiturum.1 Ulp. : -personae quibus sine mandatu Ait praetor: CVIVS NOMINE QVIS ACTIONEM DEFENDAT.-1. 33, § 3 eod.3 Vat. fgm. 330: Papinianus respondit, si procurator absentis aliquam actionem absentis nomine inferre velit, cogendum eum adversus omnes absentem defendere.* 1 But a procurator is substituted in view of the action by no special form of words, but by mere commission, even in the absence or without the privity of the opponent. Nay more, some hold that if he have received no commission a person may still be considered a procurator, provided only he enter upon the business in good faith, and give security that transactions shall be ratified by his principal. 2 -persons . . . who are allowed to sue without a commission; for example, children (although they are under power), parents too, and brothers, connections and freedmen. The Praetor says: 'In whosesoever name a man shall apply for an action to be given to him, he shall protect such person in conformity with the judgment of an honourable man.' Pap. gives as his opinion, that if the attorney of an absent party desire to bring any action in the name of such absent a Cf. § 50, ad fin. BOOK IV. Chapter 11. a § 26. ▸ Paulus? (3) The late classical Procurator praesentis' and 'apud acta factus' was in many respects on the same footing as the Cognitor. In respect of the processual effect of representation, and the cautionary obligation connected with it, the following distinctions have to be made. If representation occurs on the part of the defendant (defensio), there is always need of the 'cautio iudicatum solvi,' since the plaintiff loses his claim against the original opponent in consequence of consumption of the proceedings." Pomp. Solutione vel iudicium pro nobis accipiendo et inviti et ignorantes liberari possumus. -D. 46, 3, 23.1 Ulp. adversus defensorem qui agit, litem in iudicium deducit.-D. 44, 2, II, 7.2 Gai. iv. § 101: Ab eius vero parte cum quo agitur, siquidem alieno nomine aliquis interveniat, omnimodo satisdari debet: quia nemo alienae rei sine satisdatione defensor idoneus intelligitur; sed siquidem cum cognitore agatur, dominus satisdare iubetur, si vero cum procuratore, ipse procurator; idem et de tutore et de curatore iuris est." Vat. fgm. 317: Quae satisdatio adeo neces party, he must be compelled to conduct the defence of the absent party against all persons. 1 By payment, or the undertaking of an action on our behalf, we can be discharged even without our consent and without our knowledge. 2 -the plaintiff carries the suit before the iudex against the representative. 3 But in respect of a defendant, if a man intervenes in another's name, security must be given in all cases, because no one is considered a competent defendant in another man's cause without security; but if the proceedings are against a cognitor, the principal is ordered to give security; if, however, they are against a procurator, the procurator himself must give it. The same rule further holds in respect of a tutor or curator. saria est, ut eam remitti non posse, etiamsi apud In the case of representation upon the part of the plaintiff there arises (1) as a rule, no obligation of cautio in respect of the Cognitor, since the defendant, by the nature of the representative's commission, is here already always naturally protected against a revival of the action by the party represented (dominus). Gai. iv. § 97 Nec si per cognitorem quidem agatur ulla satisdatio vel ab ipso vel a domino desideratur cum enim certis et quasi solemnibus verbis in locum domini substituatur cognitor, merito domini loco habetur.2 BOOK IV. Chapter II. dominum habi plius eo nomine (2) Every other representative had, at first indeed invariably, to provide cautio de rato.a But Ratam rem later on the giving of cautio was made dependent turum,' ' amupon whether or not the right of action of the prin- neminem cipal is itself destroyed by the representative's pro- petiturum,' ceedings-which was accepted in the case of actual authorisation (verus procurator)—and, in the case of its being so destroyed, for the security of the defendant established the obligation to give cautio only when the authority or legitimation for taking proceedings was doubtful. Thus as a rule was the finding of cautio dispensed with particularly in respect of the 'procurator praesentis, ad acta factus,' and of an official representative. Ibid. 98: Procurator vero si agat, satisdare jubetur ratam rem dominum habiturum : periculum 1 And this security is so indispensable, that the late Emp. Severus enacted that it cannot be waived, even if the procurator be appointed in the course of the proceedings. 2 And if proceedings be taken by means of a cognitor, no security is required either from him or from his principal. For since the cognitor is substituted for his principal by certain and, as it were, solemn words, he is rightly regarded as occupying the position of the principal. For the actio indicati,' sec $204. BOOK IV. Chapter II. a Cf. supra. Ulpian? enim est, ne iterum dominus de eadem re experiatur; quod periculum non intervenit, si per cognitorem actum fuerit, quia de qua re quisque per cognitorem egerit, de ea non magis amplius actionem habet quam si ipse egerit.' Ibid. § 84-quamquam et ille, cui mandatum est, plerumque satisdare debet, quia saepe mandatum initio litis in obscuro est et postea apud iudicem ostenditur." Vat. fgm. 333 (Pap.): Absentis procuratorem satisdare debere de rato habendo, recte responsum est multis enim casibus ignorantibus nobis mandatum solvi potest, vel morte vel revocato mandato. Cum autem certum est mandatum perseverare, i.e. cum praesens est dominus, satisdationis. necessitas cessat.3 Ibid. 317: [Apud acta facto] procuratori haec satisdatio remitti solet: nam cum apud acta nonnisi a praesente domino constituatur, cognitoris loco intelligendus est.* But if a procurator is suing, he is ordered to give security for his principal's ratification of his acts; for there is a danger of the principal proceeding afresh in respect of the same matter this danger does not arise if proceedings have been taken through a cognitor; for a man who is sued through a cognitor has no further action in respect of the same matter than if he sued in person. 2 -although even he who holds a commission must generally give security, because often a commission is not disclosed at the beginning of a suit, and is afterwards brought forward before the iudex. 3 An opinion was correctly given that the procurator of an absent party ought to give security for confirmation of his acts by his principal; for in many cases without our knowledge a commission can be determined, either by death or by the revocation thereof. But when it is certain that the commission continues, i.e., when the principal is present, the need for security is over. The procurator [appointed at the hearing] is commonly excused this security; for since he is appointed at the proceedings only by the principal when present, he is to be regarded as in the position of a cognitor. |