Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/708

Rh 684 ROMAN LAW [JUS CIVILE. liability under oath or else to pay the sum claimed ; but if he did deny it the plaintiff was entitled to require from him an engagement to pay one-third more by way of penalty in the event of judgment being against him, while the svi-disant creditor had to give an engagement to pay as penalty the same amount in case of judgment in favour of the alleged debtor. These engagements (sponsio et resti- jmfatio tertiae partis) were not allowed in every case in which a definite sum of money was claimed per condic- tionem, but only when it was technically pecunia credita. In Cicero's time creditum might arise either from loan, stipulation, or literal contract (expensilatio) ; but the last dated at soonest from the beginning of the 6th century, and stipulation apparently was a result of the Silian law itself, so that the pecunia credita, of this enactment can have referred only to borrowed money. The same phrase, ac- cording to Livy, was employed in the Pcetilian law ; it was thereby enacted, he says, that for pecunia credita the goods, not the body of the debtor, ought to be taken in execu- tion. A connexion, therefore, between the Pcetilian law and the abolition of the nexum on the one hand, and the Silian law and the introduction of the legis actio per condictionem on the other, can hardly be ignored, and raises more than a probability that the latter statute was a consequence of the former, and must have been passed immediately or soon after the year 428. In the action for a money debt that was not technically pecunia credita, and in the action on the Calpurnian law, it is probable that the defendant could be required to negative the claim under oath (jusjurandum in jure delatum) on pain of being held as confessed ; but there was no penalty of a third part on either side. Little is known of the procedure l in this legis actio, for, in consequence of the loss of a leaf in the Verona MS., we are with- out part of Gaius's account of it. It got its distinctive name, he says, from the condictio or requisition made by the plaintiff on the defendant, whom he had brought into court in the usual way, to attend again on the expiry of thirty days to have a judge ap- pointed. It was probably only on the reappearance of the parties, and after the defendant had had time for looking into the facts, that the latter could be required to make oath as to his defence of non-indebtedness. In the action for pecunia credita it would be then also, and after the oath, if demanded, had been given, that the spoiisio et restipulatio tertiae partis were exchanged ; and it is probable that, if either party refused on the praetor's command so to oblige himself towards the other, judgment was at once pronounced in favour of the latter without any remit to a judex. How the issue was adjusted when the sponsion and restipulation were duly given we are not informed ; but, judging by analogy from the pro- cedure in an action for breach of interdict under the formular system, and on the broader ground that there must have been machinery for a condemnation of the plaintiff on his restipulation in the event of his being found in the wrong, it may reasonably be concluded that there were in fact three concurrent issues sent to the s&mejudex, the first on the main question, the second on the defendant's sponsion, and the third on the plaintiffs restipula- tion. When a sum of money other than pecunia credita or a thing or quantity of things other than money was sued for, those sub- sidiary issues were unnecessary, as there was neither sponsion nor restipulation. As Baron has demonstrated, it was not the usual practice to introduce any words explanatory of the ground of indebtedness when the action was either for money (other than pecunia credita) or for a thing or quantity of things. It might be loan, or bequest, or sale, or purchase, or delict, or unjustifiable enrichment, or any of a hundred causae ; it would have to be condescended on of course before the judge ; but in the initial stage before the praetor and in the issue all that was necessary was the averment that the defendant was owing such a sum of money or such a thing. It was for the judge to determine whether or not the averment was established and, in certain cases, that non-delivery was due to the fault of the defendant; the plaintiff, however, was bound to make his averment good to the letter of his claim. In the event of the 1 To the literature on p. 681, note 1, add Asverus, Die Denuncia- tion d. R&mer, Leipsic, 1843, p. 129 sq. ; Mommsen (rev. Asverus), in Richter's Krit. Jahrbuch, vol. ix. (1845), p. 875 sq.; Bekker, Aktionen, vol. i. cap. 4-7 ; Voigt, Jus nalurale, Ac., d. RSmer, 4 vols., Leipsic, 1856-75, vol. iii. 98, 99, and vol. iv. Beilage xix. Nos. 1, 2, 7 ; Baron, Die Condictionen, Berlin, 1881, 15, 16. plaintiff being successful in an action for ccrtapccunia, but delay was made by the defendant in satisfying the judgment, execution fol- lowed in ordinary form. How the matter was arranged in an action on the Calpurnian law for a certa res is not so obvious. What the plaintiff wanted was specific delivery or damages, and by some the opinion is entertained that he formulated his claim alternatively. Of this there is no evidence ; and Gaius's statement that under the system of the legis actioncs condemnation was always in the ipsa res, i.e., the specific thing sued for, leads to the assumption that a judgment for the plaintiff, on which specific implement failed, must have been followed by an arbitrium litis acstimandae for assessment of the damages in money, and that execution proceeded thereon as if the judgment had been for a sum of money in the first instance. The general opinion, however, is that the judge to whom the issue was remitted assessed the damages himself and as a matter of course, that the instruction to him was quanti res erit, tantam pecuniam wndemnato. The Legis Actio per Manus Injectionem. 2 This " action Per of the law " was ordinarily employed as a means of execu- nianua tion against the body of a judgment-debtor or one who had '"J 60 ' confessed liability in the first stage of a process. But, in certain cases in which it was thought proper that a creditor should have a more summary remedy than was afforded by a sacramental action or one per judicis postulationem, he was allowed to apprehend his debtor without any ante- cedent judgment ; and, if the debtor disputed liability, the question could be tried only in proceedings at his in- stance, or sometimes at that of a third party on his behalf, for a stay of execution. It will simplify matters, however, to confine our attention to it in the meantime as a means of execution against the body of a judgment-debtor. Gaius's description of it is very general ; for details we are indebted principally to the Noctes Atticae of Aulus Gellius, in an account which he gives (put into the mouth of Sext. Csecilius Africanus, a well-known jurist of about the same time as Gaius, and a contemporary of his own) of the provisions of the XII. Tables in reference to it. Afri- canus is made to say that according to his belief (ojnnor) the words of the statute were these : "For admitted money debts and in causes that have been regularly determined by judgment (aeris confessi rebusque jure judicatis) there shall be thirty days' grace. After that there may be manus injectio. The apprehending creditor shall then bring his debtor before the magistrate. If he still fail to satisfy the judgment, and no vindex come forward to relieve him, his creditor may carry him home and put him in chains. He may live at his own cost; if not, his creditor must give him daily a pound of spelt, or more if he please." Africanus continues narrative : "There was still room for the parties to come to terms ; but, if they did not, the debtor was kept in chains for sixty days. Towards the end of that time he was brought before the prajtor in the comitium on three consecutive market-days, and the amount of the judgment-debt proclaimed. After the third capite poenas dabat" what these words mean will be considered in the sequel, " or else he was sent across the Tiber to be sold to a foreigner. And this capital penalty, sanctioned in the hope of deterring men from unfaithfulness to their engagements, was one to be dreaded because of its atrocity and of the new terrors with which the decemvirs thought proper to invest it. For, if it was to more creditors than one that the debtor had been adjudged, they might, if they pleased, cut up and divide his body. Here are the words 2 To the literature on p. 681, note 1, may be added Huschke, Nexum, 1846, p. 79 sq.; Savigny, "Das altrom. Schuldrecht," in his Verm. Schriften, vol. ii., 1850, p. 369 sq.; Hoffmann, Die Forcten u. Sanaten, ntbst Anhang tiber d. altriim. Schuldrecht, Vienna, 1866, p. 54 sq. ; Unger, in the Zeitschr. f. Rechtsgesch., vol. vii. (1868), p. 192 sq.; Vainberg, Le nexum et la contrainte par corps en droit Rom., Paris, 1874, p. 36 sq.; Bruns, in the Zeitschr. f. Rechtsgesch., vol. xii. (1876), p. 128 sq. ; Exner, in the Zeitschr. f. Rechtsgesch., vol. xiii. (1878), p. 392 sq. ; Voigt, "Ueber d. Gesch. d. rom. Executionsrechtes," in the Berichte d. k. sachs. Gesellsch. d. Wissenschaften (Phil. -Hist. Cl.), vol. xxxiv. (1882), p. 76 sq. ; Voigt, XII. Tafeln, vol. i. 63-65 ; Iheriug (as on p. 681, note 2), pp. 196 sq., 232 sq.