consistere non potuerit, ideoque licet exierit de mea potestate, agere me non posse. diversae scholae auctores, quamdiu in mea potestate sit, quiescere actionem putant, cum ipse mecum agere non possum; cum vero exierit de mea potestate, tunc eam resuscitari. § 79. Cum autem filius familias ex noxali causa mancipio datur, diversae scholae auctores putant ter eum mancipio dari debere, quia lege XII tabularum cautum sit, ne aliter filius de potestate patris exeat, quam si ter fuerit mancipatus: Sabinus et Cassius ceterique nostrae scholae auctores sufficere unam mancipationem; crediderunt enim tres lege XII tabularum ad voluntarias mancipationes pertinere. § 80. Haec ita de his personis quae in potestate sunt, sive ex contractu sive ex maleficio earum controversia esset. quod vero ad eas personas quae in manu mancipiove sunt, ita ius dicitur, ut cum ex contractu earum ageretur, nisi ab eo cuius iuri subiectae sint in solidum defendantur, bona quae earum futura forent, si eius iuri subiectae non essent, veneant. sed cum rescissa capitis diminutione imperio continenti iudicio [desunt 24 lin.]. § 81. . . . quamquam diximus permissum fuisse ei mortuos homines dedere, tamen et si quis eum dederit qui fato suo vita excesserit, aeque liberatur. an action cannot exist, and therefore if he pass again out of my power I have no action. The other school maintain that while he is in my power the action is only in abeyance, because I cannot bring an action against myself, and revives when he passes out of my power. § 79. When a filiusfamilias is surrendered in satisfaction of judgment in a noxal action, the other school hold that he ought to be mancipated three times, because the law of the Twelve Tables provides that a son cannot pass out of the power of the father unless he is three times mancipated. Sabinus and Cassius and the other authorities of my school hold that a single mancipation is sufficient, and suppose that the three conveyances of the Twelve Tables are only required in voluntary emancipation. § 80. So much for the contracts and delicts of persons under power. As to persons subject to manus or mancipium, when they are sued for contracts, unless they are defended against the whole damages by the superior to whom they are subject, the goods which would have belonged to them but for their subjection are ordered by the praetor to be sold. An action rescinding the change of status and deriving its binding force from the praetor's executive supremacy ... § 81. . . . . though I said that a dead man yet if he died a natural death and the body is surrendered, the judgment is satisfied. § 77. Gaius explained the various modes by which a man might lose his freedom, 1 § 160. A person who fraudulently allowed himself to be sold with the view of sharing the purchase money, Inst. 1, 3, 4, a freedman ungrateful to his patron, Inst. 1, 16, 1, a woman who persisted in intercourse with a slave without the permission of the master, all forfeited their freedom, the last by a Senatusconsultum Claudianum which was repealed by Justinian, Inst. 3, 12, 1. In the older law a man who failed to register himself at the census (incensus) lost his freedom; and by the Twelve Tables the fur manifestus and insolvent debtor were assigned (addicti) to the injured party, though, apparently, 3 § 189, not reduced to slavery. § 78. Justinian decides in favour of the Sabinians, Inst. 4, 8, 6, that the action for the delict of a slave is extinguished, without possibility of future revival, when the delinquent slave comes into the power of the person aggrieved. § 81. The death of a delinquent slave extinguished the liability of the master. Sed et mortuo servo antequam judicium accipiatur omnino hac actione non tenebitur dominus, Dig. 9, 4, 39, 4. Si quis pro servo mortuo, ignorans eum decessisse, noxale judicium acceperit, absolvi debet, quia desiit verum esse, propter eum dare oportere, Dig. 9, 4, 42, 1. If the slave die before an action is commenced, the master is not liable; and if an action is commenced in ignorance of his death, the master must be absolved, because his liability is at an end.' As the Romans became more civilized the noxal surrender of a son or daughter by the parent became repugnant to public feelings, and Justinian speaks of it as a thing of the past. A filiusfamilias was only liable to execution against his estate. Incarceration for insolvency was confined to debts arising from a money loan. If a son had contracted such a debt with his father's sanction, the creditor had his remedy against the father: if the loan had not been sanctioned the debt was irrecoverable. If the father was insolvent, both son and father were liable to incarceration. Si autem damnum ei cui deditus est servus resarcierit quaesita pecunia, auxilio praetoris invito domino manumittetur, Inst. 4, 8, 3. 'If a slave surrendered for a delict is able to indemnify the injured party, he is manumitted without the consent of his master.' This seems originally to have been restricted to the case of a freeman surrendered for delict. Per hominem liberum noxiae deditum si tantum adquisitum sit, quantum damnum dedit, manumittere cogendus est a praetore qui noxa deditum accepit, sed fiduciae judicio non tenetur, Papinian, Collatio, 2, 3. 'On indemnification by the freeman surrendered for delict, his master is compelled by the praetor to manumit him, but cannot be sued for a trust.' Livy relates that the consul Postumius, who, to save the Roman army, made a treaty with the Samnites, and was sent under the Caudine Forks, was surrendered by the Romans, to discharge themselves of their liability, with all the formalities of a noxae deditio, A. D. 318, Livy, 9, 10. As Postumius had not committed a delict against the Samnites, but had made a contract with them, we may either suppose that the colouring of legality which the Romans attempted to give to their violation of the treaty was defective in this respect, or that under the old law the paterfamilias could really bv noxae deditio discharge himself of liability for the contracts of those in his power by which he benefited, as well as for their delicts. With the principle of noxal actions we may compare the law of Damni infecti (damage anticipated), which allowed the owner of a dilapidated house to exonerate himself from damages caused to his neighbours' property by surrendering the house; or the rule of English law, by which the responsibility of a shipowner for damage done without his fault to another ship or cargo was limited to the value of his ship and the freight she was earning at the time, 53 George III, c. 159. Mischief (pauperies) occasioned by an animal might by a law of the Twelve Tables be atoned for by noxae deditio. DE HIS PER QUOS AGERE POSSUMUS. § 82. Nunc admonendi sumus agere posse quemlibet aut suo nomine aut alieno. alieno, veluti cognitorio, procuratorio, tutorio, curatorio: cum olim, quo tempore erant legis actiones, in usu fuisset alterius nomine agere non licere, nisi pro populo et libertatis causa. § 83. Cognitor autem certis verbis in litem coram adversario substituitur. nam actor ita cognitorem dat: QUOD EGO A TE verbi gratia FUNDUM PETO, IN EAM REM LUCIUM TITIUM TIBI COGNITOREM DO; adversarius ita: QUANDOQUE TU A ME FUNDUM PETIS, IN EAM REM PUBLIUM MAEVIUM COGNITOREM DO. potest, ut actor ita dicat: QUOD EGO TECUM AGERE VOLO, IN EAM REM § 82. A man may sue either for himself or for another as cogni-. tor, procurator, guardian, curator, whereas in the days of statute-process a man could only sue for another in public suits or as an assertor of freedom. 6 § 83. A cognitor for a cause is appointed by a set form of words in the presence of the adversary. The plaintiff appoints a cognitor in the following form: Whereas I sue you for, say, an estate, in that matter I appoint Lucius Titius as my cognitor;' the defendant thus: 'Whereas you sue me for an estate, in that matter I appoint Publius Maevius as my cognitor.' Or the COGNITOREM DO; adversarius ita: plaintiff may use the words: Whereas I intend to sue you, in that matter I appoint Lucius Titius interest, praesens an absens cognitor detur: sed si absens datus fuerit, cognitor ita erit, si cognoverit et susceperit officium cognitoris. § 84. Procurator vero nullis certis verbis in litem substituitur; sed ex solo mandato, et absente et ignorante adversario, constituitur. quinetiam sunt qui putant vel eum procuratorem videri cui non sit mandatum, si modo bona fide accedat ad negotium et caveat ratam rem dominum habiturum. igitur et si non edat mandatum procurator, experiri potest, quia saepe mandatum initio litis in obscuro est et postea aput iudicem ostenditur. § 85. Tutores autem et curatores quemadmodum constituantur, primo commentario rettulimus. § 86. Qui autem alieno nomine agit, intentionem quidem ex persona domini sumit, condemnationem autem in suam personam convertit. nam si verbi gratia Lucius Titius pro Publio Maevio agat, ita formula concipitur: SI PARET NUMERIUM NEGIDIUM PUBLIO MAEVIO SESTERTIUM X MILIA DARE OPORTERE, as my cognitor;' and the defendant these: Whereas you intend to sue me, in that matter I appoint Publius Maevius as my cognitor.' It is immaterial whether the person named as cognitor is present or absent; but if an absent person is named, he is only cognitor if he consents and undertakes the office. § 84. A procurator is appointed in any words that amount to instructions, even in the absence and without the knowledge of the adversary. According to some, instructions are not requisite if a person undertakes the office in good faith and engages that the principal will ratify his proceeding. A procurator may commence an action without producing his instructions, and in fact the instructions are often not produced until the action is before the judex. $85. How guardians and curators are appointed has been explained in the first book. § 86. He who sues for another names the principal in the intentio and himself in the condemnatio. If, for example, Lucius Titius sues for Publius Maevius, the formula runs thus: If it be proved that Numerius Negidius ought to pay to Publius Maevius ten thousand sesterces, do thou, judex, condemn Numerius IUDEX NUMERIUM NEGIDIUM LUCIO Negidius to pay to Lucius Titius TITIO SESTERTIUM X MILIA CON DEMNA. SI NON PARET, ABSOLVE. in rem quoque si agat, intendit Publii Maevii rem esse ex iure Quiritium, et condemnationem in suam personam convertit. § 87. Ab adversarii quoque parte si interveniat aliquis, cum quo actio constituitur, intenditur dominum dare oportere condemnatio autem in eius personam convertitur qui iudicium accepit. sed cum in rem agitur, nihil in intentione facit eius ten thousand sesterces; if it be not proved, absolve him.' In a real action the thing is affirmed in the intentio to be the property of Publius Maevius by the law of the Quirites, and the representative is named in the condemnatio. § 87. If the defendant is represented by a cognitor or procurator, the principal is named in a personal intentio, and his representative in the condemnatio. In a real action neither the principal defendant nor his representative is named in the persona cum quo agitur, sive suo nomine sive alieno aliquis iudicio interveniat: tantum enim intenditur rem actoris esse. intentio, which only affirms the proprietorship of the plaintiff. § 82. If there is a genuine antithesis between suo nomine and alieno nomine, the procuratorium, tutorium, &c., nomen, which is the alienum nomen with which the procurator or guardian sues, must mean the name, not of the procurator or guardian, but of the principal or ward. When a man sues suo nomine he uses his own name in the intentio, therefore when a man sues procuratorio nomine he uses the procuratorium nomen in the intentio. But the name inserted in the intentio by a procurator is not the name of the procurator, but that of the principal. Eam popularem actionem dicimus quae suum jus populo tuetur, Dig. 47, 23, 1. 'A public action is one which defends the interest of the people.' A popularis actio was one brought by a common informer to recover a penalty. The informer enforced, not a private but a public right, that is, sued as the procurator of the people; and therefore an infamis, as he was disabled from being procurator, was incompetent to prosecute in such an action. To public actions and actions by an assertor libertatis Justinian adds, as maintainable by a representative under the old jurisprudence, actions in behalf of a ward. We have already mentioned, page 119, that until the ward attained the age of seven the guardian acted in the name of the ward; after the age of seven the ward acted with the authority of the guardian. § 84. A person who without instructions (mandatum) officiously interposed and undertook the defence of an absent neighbour was called negotiorum gestor, or defensor, or procurator voluntarius. The employment of a cognitor, from the necessity of appointing him in the presence of the adversary and by a certain formula, was discontinued as inconvenient, and Justinian only speaks of the procurator. DE SATISDATIONIBUS. § 88. Videamus nunc quibus ex causis is cum quo agitur vel hic qui agit cogatur satisdare. § 89. Igitur si verbi gratia in § 88. We next inquire under what circumstances the plaintiff or defendant is required to give security. § 89. If I sue you in a real action |