VIII.

discharge of his duty gave a wrong decision per CHAP. imprudentiam, he became liable quasi ex maleficio1; and an action lay for the person thus injured against the judge.

2. The action de dejectis et effusis is based on De dejectis the Edict, and lay against the inhabitant of a et effusis. house, for throwing or pouring something from a window, whereby damage was done. The penalty was in duplum, and the action survives for, but not against the heir.

If the act were done by a slave, a noxal action lay against the master.

tis.

3. Actio de suspensis et positis. This was the In suspenaction provided by the Edicts against those who sis et posi placed or suspended things over a place of public resort, so as to be dangerous in case they fell. The penalty was twenty solidi1.

4. Actio de Recepto was the action which lay De recepto. against the Nauta caupones et stabularii,-carriers by water or land, and innkeepers,-for things lost, stolen, or destroyed whilst in their possession. It renders them liable for the acts of their servants, and lies in simplum, and therefore against their heirs.

causam.

5. Condictio ob turpem causam lies where Ob turpem one has given to another something for a base or unjust cause, which attaches to the receiver only. It is a personal action quasi ex delicto, where one has honestly given something for a base consideration, and lies for him and his heirs against the party who has received it for such base consideration, for the return of the thing or its estimated value®.

IV.

CHAPTER IX.

Pleas.

BOOK BEFORE proceeding to the subject of Pleas, it is necessary to notice those persons employed to represent the actor or the reus in an action. These were cognitores, procuratores, and defensores.

Cognitor,

how appointed.

Procurator.

We learn from Gaius', that before the legis actiones were set aside, no one could sue in the name of another, nisi pro populo et libertatis causa; and it was not until the formulary period that what we should call attorneys and proctors were recognized.

The appointment of a cognitor must be made in court by the actor, and in the presence of the reus, in this form: Quod ego a te fundum peto in eam rem Lucium Titium tibi cognitorem do. The actor having thus obtained the right of appointing his representative in court, the same right could not be denied to the reus, who therefore, if he thought proper to defend by deputy, replied: Quandoque tu a me fundum petis in eam rem Publium Mævium cognitorem do2; and the battle was then fought out between Lucius Titius and Publius Mævius, on behalf of their respective clients.

The difference between the cognitor and the procurator was, that the latter acted upon the mandate of his employer3, and might be appointed by either party in the absence, and without the knowledge of the other. When an action was conducted by a cognitor or procurator, the intentio ran in the name of the actor, but the condemnatio

IX.

in that of the cognitor or procurator; thus, if Pub- CHAP. lius Mævius sued by his cognitor Lucius Titius, the formula ran thus: Si paret Numerium Negidium Publio Mævio sestertium decem millia dare oportere judex Numerium Negidium Lucio Titio sestertium decem millia condemna, &c.

The defensor appears to have been nothing Defensor. more than a negotiorum gestor, who voluntarily appeared in defence of an absent defendant, as he is described as quemvis verba pro eo facientem1, and whom the court would hear without calling on him to prove his mandate.

curity.

The cognitor was not required satisdare, to Cognitor give security, because he was appointed in court, cur. seand he and the actor were considered as the same person; but the procurator was obliged to give security ratam rem dominum habiturum, because the actor might bring his action again through the default of the procurator2.

When in an action the actor had set forth his Exceptio. intentio, or, in the language of our own law, had filed his declaration, the reus met him with his exceptio. Paulus says, Exceptio est conditio, quæ Definition. modo eximit reum damnatione, modo minuit damnationem3: a circumstance (alleged by the reus) which either sets aside the ground of action, or goes to diminish the claim of the actor.

mula.

The exceptio appeared in the formula sent down Appeared to the judex: so where the plea was dolus malus on the forit ran thus: Si in ea re nihil dolo malo Auli Agerii factum sit neque fiat. Or where the reus denied the agreement on which the action was brought; e.g. Si inter Aulum Agerium et Numerium Negidium non convenit ne ea pecunia peteretur, &c.* The judex was therefore bound to inquire fully into the truth of the allegation of the reus, and to return his judgment accordingly.

1 D. III. 3. 33. 2; and 5. 1.

3 D. XLIV. 1. 22.

2 Gai. IV. 97-8.

4 Gai. IV. 119.

4

BOOK

IV.

Pleas were either civil or prætorian; the former being founded on some law or sctum, as that Pleas either of non numerata, pecunia or scti Velleiani. The Civil or latter owe their origin to the edict, as doli mali, metus, causa, &c.

Prætorian.

Peremptory

or

Dilatory.

Pleas were also peremptory or dilatory.

Peremptory pleas are such as, if proved, give a complete quietus to the demand of the actor, e.g. quod metus causa; or quod contra legem, sctum factum est; or quod res judicata, that the actor has already had judgment; or that there has been a pactum conventum in which he has bound himself not to sue1.

Dilatory pleas were those which, without destroying entirely the claim of the actor, and his right to sue, have the effect of deferring his action. Such were the pleas litis dividua, and rei residua; the former of which applied where the actor brought his action for a part of his claim only, and then brought a second action for the rest intra ejusdem præturam. This was splitting an action, and the proof of the plea would nonsuit him; but he might repeat his action as soon as the next Prætor took office. The plea of rei residua operated to stay the action where the actor, having several claims against the reus, had prosecuted some of them, but had deferred the rest to be tried by a different judex; if he instituted a fresh action intra ejusdem præturam, during the continuance of the same Prætor, he lost his cause. If the actor rashly proceeded in the face of the exceptio dilatoria, and it was duly proved, his right of action was gone for ever; for if he attempted to sue Res judi- again, he was met by the exceptio rei judicata, which put him out of court.

cata.

Gaius mentions a dilatory plea arising from the person of the cognitor, or the right of the actor to appoint one, as where the person appointed was unfit, or where the actor had no right to appoint a

1 Gai. IV. 121.

IX.

cognitor at all. In such case the action must abate, CHAP. and the right of a new action was reserved. But if the actor persisted in proceeding in the face of such a plea, he could not have a new trial'. If the reus erroneously omitted to avail himself of a peremptory plea when he might have done so, he might demand a new trial; but it is questionable if he could do so in the case of a dilatory plea2.

The next move was with the actor, who must Replicatio. meet the exceptio with his replicatio. Replicatio Definition. est contraria exceptio, quasi exceptionis exceptio3. Or as Gaius has it, replicatio vocatur quia per eam replicatur, atque resolvitur vis exceptionist. For example, Titius sues Mævius for the payment Examples. of a certain sum of money which he owed. Mævius pleads that Titius agreed not to demand payment. Titius replies, that though there was such an agreement, it was subsequently agreed that Mævius should pay on demand; and this replication appears on the formula thus: Si non postea convenerit ut eam pecuniam petere liceret. Again, the actor brought his action for something sold at an auction. The reus pleaded that he was not liable to pay, inasmuch as the thing had not been delivered. The actor replied, that in actione prædictum est, or, as we should say, the conditions of sale were, that nothing should be delivered till the money was paid. The replication therefore stood thus on the formula: Aut si prædictum est ne aliter emptori res traderetur quam si pretium emptor solverit.

If the reus had an answer to the replicatio, he Duplicatio. then pleaded his duplicatio, which the actor might

again answer by his triplicatio, beyond which the Triplicatio. pleading seldom went.

2 Id. 125.

1 Gai. IV. 124.

3 D. XLIV. I. 22. I..

4 Gai. IV. 126.

5 Id.