а 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 a § 195to give is treated as a confessus, like the iudicatus.'d § 193. Ulp. Non defendere videtur . . . et is qui$27. praesens negat se defendere, aut non vult suscipere fgm. iv. (vi.); actionem.-D. 50, 17, 52. Lex Rubria, cap. 21: A QVOQVOMQVE PECVNIA ... $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 solvie 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.' d Cf. Ulp inst. D. 6, 1, 1. ult. § 113. e Cf. Paterson, S. 1140. BOOK IV. Chapter II. a Gai. iv. 16: See Hunter, P. 1026. actiones, especially the 'rei vindicatio' and the 'hereditatis petitio.'" Ulp. Iudicatum solvi stipulatio tres clausulas in unum collatas habet: de re iudicata, de re defendenda, de dolo malo.-D. 46, 7, 6.' 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.'* Paul. i. II, § 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 II. Representation in the formulary procedure is admissible to the widest extent.a The representative, who a cf. I. 4, 10 pr. judicially enforces the claim of another-whether upon another's or his own account (procurator in rem suam) bo cf. § 144-or defends the claim that is raised against a third party, becomes by the Litis Contestatio himself party to the proceedings. Upon the ex pression of Gai. iv. § 82: Nunc admonendi sumus agere representation nos aut nostro nomine aut alieno, veluti cognitorio in the formula, see § 200. procuratorio tutorio curatorio.2 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. BOOK IV. Chapter 11. procuratoris fit eamque suo iam quodammodo nomine exsequitur.-D. 44, 4, II 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. 2 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." 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.' 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.' 4 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. |