a BOOK IV. Chapter 11. tatur, sed quidquid adversarium dare facere. oportet' intendatur.' Ib. §§ 58-9: Si in demonstratione plus aut minus positum sit, nihil in iudicium deducitur et ideo res in integro manet; et hoc est quod dicitur, falsa demonstratione rem non perimi. § Sed sunt qui putant minus recte comprehendi, ut qui forte Stichum et Erotem emerit, recte videatur ita demonstrare quod ego de te hominem Erotem emi,' et si velit, de Sticho alia formula agat, quia verum est eum qui duos emerit, singulos quoque emisse: idque ita maxime Labeoni visum est. Sed si is qui unum emerit, de duobus egerit, falsum demonstrat. Idem et in aliis actionibus est, veluti commodati et depositi, The damage to the defendant arising from an er § 197 ad fin. roneous condemnatio-which, however, binds the judge -is removed by in integrum restitutio, though not invariably. Ib. § 57: At si in condemnatione plus petitum sit quam oportet, actoris quidem periculum nullum est, sed reus cum iniquam formulam acceperit, in integrum restituitur, ut minuatur condemnatio; si vero minus positum fuerit quam oportet, hoc solum actor consequitur quod posuit: nam tota 1 It is clear enough that in uncertain formulae one cannot sue for too much, since a definite amount is not sued for, but the claim is made for whatever one's opponent ought to give or do. 2 If too much or too little is set down in the demonstratio, there is nothing submitted to the iuder, and the matter remains intact; and this is what is meant by the saying that a matter is not extinguished by a false demonstratio. Some, however, think that less may be included, so that, for instance, a person who has purchased Stichus and Eros may be considered to have drawn his demonstratio correctly thus: Whereas I have bought the slave Eros of you,' and, if he like, he may claim Stichus by another formula; because it is a fact that he who has purchased two slaves is also the purchaser of each of them; and this was certainly Labeo's opinion. But if the purchaser of one thing should sue for two, his demonstratio is false. This rule holds in other actions also, as those of loan and deposit. quidem res in iudicium deducitur, constringitur 203. TRANSLATIO IUDICII. Although the formula once given is, as the rule of proceedings in iudicio, unchangeable according to its material contents, yet a change in personal relations may be rendered necessary by circumstances. Thus, there is need of the transfer of the formula to another judge, if the one appointed die or become incapable (mutatio iudicis). And further, transfer to another person as party to the proceedings (translatio iudicii in the narrower sense) is requisite, or permissible, in the following cases. BOOK IV. Chapter II. Upon the death of a party, since an intentio as well as a condemnatio placed to the name of the deceased would be absurd, and judgment going for or against him would be void; a in which case the formula is re- " D. 5, 1, 74, 2. cast for the heir. (Resumption of the proceedings.) Paulus respondit, eum qui in rebus humanis non fuit sententiae dictae tempore, inefficaciter condemnatum videri.-D. 49, 8, 2 pr.2 : Ulp. Si operarum iudicio actum fuerit cum liberto et patronus decesserit, convenit trans 'But if too much has been stated in the condemnatio, the plaintiff is at no risk; but when the defendant has received an unfair formula, he is restored to his former position. But if too little has been stated, the plaintiff only obtains what he has stated; for whilst the whole matter is brought before the iudex, it is controlled by the last clause of the condemnatio, beyond which the iudex must not go; nor does the Praetor upon such part of the formula allow in integrum restitutio . . . except in respect of persons under 25 years of age. ... 2 Paul. answers, that the condemnation is considered void of a party who was not alive at the time judgment was pronounced. a BOOK IV. Chapter II. a § 113. D. 44, 7, 9. lationem heredi extraneo non (?) esse dandam ; filio autem, et si heres non exstat, et si lis contestata non fuerat, tamen omnimodo competit, nisi exheredatus sit.-D. 38, 1, 29.1 : Id. Mortuo filio post litis contestationem, transfertur iudicium in patrem dumtaxat de peculio et quod in rem eius versum est.-D. 5, I, 57.2 Id. Plures heredes rei necesse habebunt unum dare procuratorem, ne defensio per plures scissa incommodo aliquo afficiat actorem; aliud est in heredibus actoris, quibus necessitas non imponitur, ut per unum litigent.-D. 46, 7, 5, 7.3 In certain cases of a change of status, as in the person of the plaintiff by arrogation, of the defendant in noxal actions, by emancipation or manumission," and the like. Id. Sed si pater lite contestata coeperit abesse vel etiam negligere executionem pater vilis, dicendum est causa cognita translationem filio competere; idem et si emancipatus filius esse proponatur.-D. 47, 10, 17, 14.* A translatio ensues also 'causa cognita'— 1 If an action have been brought against a freedman for services, and the patron is dead, it is agreed that no transfer shall be given to a stranger heir; but that even if he have not become heir, and there was no joinder of issue, it belongs, however, in any case to the son, unless he have been disinherited. 2 Upon the death of a son after joinder of issue, an action is transferred against the father only so far as it concerns peculium, and what was converted into his property. 3 Several heirs of the defendant will have to furnish a single representative, that the defence divided amongst several may place the plaintiff at no disadvantage. It is otherwise in respect of the plaintiff's heirs, upon whom no necessity is laid of suing by a single procurator. But if the father upon joinder of issue began by being absent, or a bad father has neglected to follow up the case, we shall have to say that when the case is heard a transfer attaches to the son. The same holds also if it be alleged that the son has been enfranchised. (a) if a change occur in the existing vicarious relation in the proceedings. Paul. Ante litem contestatam libera potestas est vel mutandi procuratoris, vel ipsi domino iudicium accipiendi.-Post litem autem contestatam reus qui procuratorem dedit, mutare quidem eum vel in se litem transferre potest, causa tamen prius cognita.-D. 3, 3, ll. 16 and 17.' Item si suspectus sit procurator aut in vinculis aut in hostium praedonumve potestate,-vel iudicio publico privatove vel valetudine vel maiore re sua distringatur vel si . . . inimicus postea fiat-aut adfinitate aliqua adversario iungaturaut longa peregrinatio et aliae similes causae impedimento sint,-mutari debet; vel ipso procuratore postulante.-Ulp., Gai. and Paul. 11. 19 -24 eod.2 (3) if representation becomes necessary after the Litis Contestatio. Gai. Qui proprio nomine iudicium accepisset, si vellet procuratorem dare, in quem actor transferat iudicium, audiri debet solemniterque pro eo iudicatum solvi satisdatione cavere.-1. 46 pr. eod.3 1 Before joinder of issue there is full liberty either to change the procurator, or for the principal himself to undertake the action. But after lit. cont. a defendant who has furnished a procurator can in fact change him or transfer the suit to himself, but upon the case being first investigated. 2 Likewise if the procurator be under suspicion, or in chains, or in the power of the enemy or robbers,- or be hindered by a public or a private action, or by sickness, or by some important concern of his own,-or shall afterwards become hostile (to the principal), or be connected by some affinity with the opponent― or a long journey, and other like reasons obstruct-he ought to be changed; even upon the application of the procurator himself. If he that had submitted to an action in his own name should wish to appoint a procurator, to whom the plaintiff shall transfer the action, he must be heard, and shall give formal security with sureties on his behalf for satisfaction of the judg ment. BOOK IV. Chapter 11. BOOK IV. Chapter II. a § 27. § 196. e Sc. absentis. $204. EXECUTION OF THE JUDGMENT. From the legal condemnatory judgment springs the 'actio iudicati,' for payment of the sum of money forming the object of the condemnation." In the case of representation in the proceedings (1) in respect of the conduct of such proceedings by a cognitor (or procurator praesentis), the actio iudicati is actively and passively transferred to the person represented; but not so in the case of the procurator absentis. Vat. fgm. 317: Cognitore interveniente iudicati actio domino vel in dominum datur-non alias enim cognitor [iudicati actione] experietur vel ei actori subiicietur, quam si in rem suam coguitor factus sit; interveniente vero procuratore iudicati actio ex edicto perpetuo ipsi et in ipsum, non domino vel in dominum competit.' Pap. Quoniam praesentis procuratorem pro cognitore placuit haberi, domino causa cognita dabitur et in eum iudicati actio. nec iudicati actio post condemnatum procuratorem in dominum datur, aut procuratori qui vicit denegatur.Ibid. §§ 331-2.3 с Ulp. Si procurator meus iudicatum solvi satisdederit, in me ex stipulatu actio non datur; sed et si defensor meus satisdederit, in me ex 1 Where a cognitor intervenes, the action upon a judgment is given to the principal or against the principal-for the cognitor will conduct [the iud. act.], or the matter will be under his control as so conducting it, only if he have been made cognitor in his own cause—; but if a procurator intervene, the iud. act. according to the edict. perp. attaches to him and against him, not to the principal or against the principal. Since it was decided that the procurator of a party present should be regarded as a cognitor, upon the hearing of the cause the iud. act. will be given to the principal, and against him.— Neither is the iud. act. given against the principal after the condemnation of a procurator (i.e., of an absent party) nor is it refused to the successful procurator. |