Ulp. In ius vocari non oportet magis- Praetor ait: PARENTEM, PATRONVM 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 = 'cautio s. satisdatio iudicio sisti ')a became increasingly customary Sec Brown, s. and acquired recognition in the Praetorian Edict. a Satisdatio; & 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 1 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. BOOK IV. Chapter 11. a Gai, iii. 224. maximum) for his reappearance upon the subsequent day appointed." Gai. iv. §§ 184-6: Cum in ius vocatus fuerit adversarius neque eo die finiri potuerit negotium, vadimonium ei faciendum est, i.e. ut promittat se certo die sisti. § Fiunt autem vadimonia quibusdam ex causis pura, i.e. sine satisdatione, quibusdam cum satisdatione, quibusdam iureiurando, quibusdam recuperatoribus suppositis, i.e. ut qui non steterit is protinus a recuperatoribus in summam vadimonii condemnetur: eaque singula diligenter praetoris edicto significantur. § Et siquidem iudicati depensive agetur, tanti fiet vadimonium, quanti ea res erit, si vero ex ceteris causis, quanti actor iuraverit non calumniae causa postulare sibi vadimonium promitti: nec tamen pluris quam partis dimidiae, nec pluribus quam sestertium c milibus fit vadimonium.' COURSE AND FORMS OF PROCEEDINGS IN IURE. $192. THE LEGIS ACTIONES. In the most ancient time the parties had in iure to summarise their legal claims in definite formulae'legis actiones'-that were legally established and in 1 When the defendant has been summoned into court, and the matter cannot be concluded on that day, security must be given by him, that is, he must undertake to appear on a certain day. Now in some cases the vadimonia are simple, that is, without sureties, in some they are with sureties, in some an oath is taken, in some recuperatores are introduced, i.e., that a man failing to appear will be summarily condemned by the recuperatores in the amount of his security; and each of these matters is carefully explained in the Praetor's Edict. § And if the action be upon a judgment, or for money paid by a guarantor, the amount of security will be that sued for; but if upon other grounds, the security will be for such amount as the plaintiff shall swear that he does not demand vexatiously as a promise of security to himself, but its amount cannot be fixed higher than half that sued for, or than 100,000 sesterces. Chapter II exact conformity with the tenor of the laws," and BOOK IV. consisted of a solemn address and reply, accompanied by corresponding ritual and symbolic acts. Gai. iv. § II: Actiones, quas in usu veteres habuerunt, legis actiones appellabantur, vel ideo quod legibus proditae erant, . . . vel ideo quia ipsarum legum verbis accommodatae erant et ideo immutabiles proinde atque leges observabantur : unde eum, qui de vitibus succisis ita egisset, ut in actione vites nominaret, responsum est rem perdidisse, quia debuisset arbores nominare, eo quod lex XII tabularum, ex qua de vitibus succisis actio competeret, generaliter de arboribus succisis loqueretur.' The parties, with the assistance of the Praetor, had to maintain the suit in their own person; representation was as a rule inadmissible. Ulp. Nemo alieno nomine lege agere potest (D. 50, 17, 123 pr.). nisi pro populo, pro libertate, pro tutela (Inst. iv. 10 pr.). There were five of these legis actiones. "$7. (1) The legis actio sacramento, the ordinary and regular form of proceedings, the drift of which was that each party called upon the other to appoint a wagering and penal sum in the event of the 'It is questioncontention in Law which they had set up being it was upon 1 The actions which the ancients were accustomed to use were called legis actiones, either from the fact that they were created by leges, for at that time the Praetor's Edicts, whereby very many actions have been introduced, were not yet put forth; or because they were adapted to the words of the leges themselves, and so were regarded as unchangeable as leges. Hence, when a person who had taken proceedings for vines cut down used the word' vines,' the opinion was given that he had lost the case, because he ought to have used the word trees,' inasmuch as the law of the Twelve Tables, on which lay the action for vines cut down, spoke in general terms of 'trees.' 2 No one can proceed by legis actio in the name of anothersave on behalf of the People, of freedom, of guardianship. able whether oath. |