FORMS IN VERBAL BARGAINS OR STIPULATIONS.

205

unquam pretio pluris licuisse, notante Judice quo nósti populo, was never reckoned worth more than the value of one as, in the estimation of the people, &c., Horat. Sat. i. 6. 13.

In verbal bargains or stipulations there were certain fixed forms (STIPULATIONUM FORMULE, Cic. de Legg. i. 4., vel SPONSIONUM, Id. Rosc. Com. 4.) usually observed between the two parties. The person who required the promise or obligation, STIPULATOR (sibi qui promitti curabat, v. sponsionem exigebat), asked (rogabat v. interrogabat) him who was to give the obligation (PROMISSOR vel REPROMISSOR, Plaut. Asin. ii. 4. 48. Pseud. i. 1. 112., for both words are put for the same thing, Plaut. Cure. v. 2. 68. v. 3. 31. Cic. Rosc. Com. 13.) before witnesses, Plaut. ib. 33. Cic. Rosc. Com. 4., if he would do or give a certain thing; and the other always answered in correspondent words: thus, AN DABIS? DABO vel DABITUR, Plaut. Pseud. i. 1. 115. iv. 6. 15. Bacch. iv. 8. 41. AN SPONDES? SPONDEO, Id. Curc. v. 2. 74. Any material change or addition in the answer rendered it of no effect, § 5. Instit. de inutil. Stip. Plaut. Trin. v. 2. 34. 39. The person who required the promise was said to be REUS STIPULANDI; he who gave it, REUS PROMITTENDI, Digest. Sometimes an oath was interposed, Plaut. Rud. v. 2. 47., and, for the sake of greater security (ut pacta et conventa firmiora essent), there was a second person, who required the promise or obligation to be repeated to him, therefore called ASTIPULATOR, Cic. Quint. 18. Pis. 9. (qui arrogabat), Plaut. Rud. v. 2. 45., and another, who joined in giving it, ADPROMISSOR, Festus. Cic. Att. v. 1. Rosc. Amer. 9. FIDE JUSSOR Vel SPONSOR, a surety, who said, ET EGO SPONDEO IDEM HOC, or the like, Plaut. Trin. v. 2. 39. Hence, Astipulari irato consuli, to humour or assist, Liv. xxxix. 5. The person who promised, in his turn usually asked a correspondent obligation, which was called RESTIPULATIO; both acts were called SPONSIO.

Nothing of importance was transacted among the Romans without the rogatio, or asking a question, and a correspondent answer (congrua responsio): hence INTERROGATIO for STIPULATIO, Senec. Benef. iii. 16. Thus also laws were passed: the magistrate asked, ROGABAT, and the people answered, UTI ROGAS, Sc. volumus. See p. 85, 86.

The form of MANCIPATIO, or Mancipium, per æs et libram, was sometimes added to the STIPULATIO, Cic. Legg. ii. 20, 21.

A stipulation could only take place between those who were present. But if it was expressed in a writing (si in instrumento scriptum esset), simply that a person had promised, it was supposed, that every thing requisite in a stipulation had been observed, Inst. iii. 20. 17. Paull. Recept. Sent. v. 7. 2.

In buying and selling, in giving or taking a lease (in locatione vel conductione), or the like, the bargain was finished by the simple consent of the parties: hence these contracts were called CONSENSUALES. He who gave a wrong account of a thing to be disposed of, was bound to make up the damage, Cic. Off. iii. 16. An earnest penny (ARRHA V. ARRHABO) was sometimes given, not to confirm, but to prove the obligation, Inst. iii. 23. pr. Varr. L. L. iv. 36. But in all important contracts, bonds (SYNGRAPHE), formally written. out, signed, and sealed, were mutually exchanged between the parties.

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FORMS IN ACTIONS CONCERNING BARGAINS, ETC.

tition of the Roman provinces, after the overthrow of Brutus and Cassius at Philippi, by giving and taking reciprocally written obligations (ypaμμateia, syngraphe), Dio. xlviii. 2. 11. A difference having afterwards arisen between Cæsar, and Fulvia the wife of Antony and Lucius his brother, who managed the affairs of Antony in Italy, an appeal was made by Cæsar to the disbanded veterans; who, having assembled in the Capitol, constituted themselves judges in the cause, and appointed a day for determining it at Gabii. Augustus appeared in his defence; but Fulvia and L. Antonius having failed to come, although they had promised, were condemned in their absence; and, in confirmation of the sentence, war was declared against them, which terminated in their defeat, and finally in the destruction of Antony, Dio. xlvii. 12, &c. In like manner the articles of agreement between Augustus, Antony, and Sex. Pompeius, were written out in the form of a contract, and committed to the charge of the Vestal virgins, Dio. xlviii. 37. They were farther confirmed by the parties joining their right hands, and embracing one another, Ib. But Augustus, says Dio, no longer observed this agreement, than till he found a pretext for violating it, Dio. xlviii. 45.

When one sued another upon a written obligation, he was said agere cum eo ex SYNGRAPHA, Cic. Mur. 17.

Actions concerning bargains or obligations are usually named ACTIONES empti, venditi, locati vel ex locato, conducti vel ex conducto, mandati, &c. They were brought (intendebantur) in this manner :The plaintiff said, AIO TE MIHI MUTUI COMMODATI, DEPOSITI NOMINE, DARE CENTUM OPORTERE; AIO TE MIHI EX STIPULATO, LOCATO, DARE, FACERE OPORTERE. The defendant either denied the charge, or made exceptions to it, or defences, (Actoris intentionem aut negabat vel inficiabatur aut exceptione eludebat,) that is, he admitted part of the charge, but not the whole; thus, NEGO me tibi EX STI

PULATO CENTUM DARE OPORTERE, NISI QUOD METU, DOLO, ERRORE ADDUCTUS SPOPONDI, vel NISI QUOD MINOR XXV. ANNIS SPOPONdi. Then followed the SPONSIO, if the defendant denied, NI DARE FACERE DEBEAT; and the RESTIPULATIO, SI DARE FACERE DEBEAT; but if he excepted, the sponsio was, NI DOLO ADDUCTUS SPOPONDERIT; and the restipulatio, SI DOLO ADDUCTUS SPOPOnderit. To this Cicero alludes, de Invent. ii. 19. Fin. ii. 7. Att. vi. 1.

An exception was expressed by these words, st NON, AC SI NON, AUT SI, AUT NISI, NISI QUOD, EXTRA QUAM SI. If the plaintiff answered the defendant's exception, it was called REPLICATIO; and if the defendant answered him, it was called DUPLICATIO. It sometimes proceeded to a TRIPLICATIO and QUADRUPLICATIO. The exceptions and replies used to be included in the SPONSIO, Liv. xxxix. 43. Cic. Verr. i. 45. iii. 57. 59. Cæcin. 16. Val. Max. ii. 8. 2.

When the contract was not marked by a particular name, the action was called ACTIO PRESCRIPTIS VERBIS, actio incerta vel incerti; and the writ (formula) was not composed by the prætor, but the words were prescribed by a lawyer, Val. Max. viii. 2. 2.

Actions were sometimes brought against a person on account of the contracts of others, and were called Adjectitia qualitatis.

As the Romans esteemed trade and merchandise dishonourable,

CASES IN WHICH ACTIONS COULD BE BROUGHT.

207

especially if not extensive, Cic. Off. i. 42., instead of keeping shops themselves, they employed slaves, freedmen, or hirelings, to trade on their account (negotiationibus præficiebant), who were called INSTITORES (quod negotio gerendo instabant); and actions brought against the trader (in negotiatorem), or against the employer (in dominum), on account of the trader's transactions, were called ACTIONES INSTITORIÆ.

In like manner, a person who sent a ship to sea at his own risk (suo periculo navem mari immittebat), and received all the profits (ad quem omnes obventiones et reditus navis pervenirent), whether he was the proprietor (dominus) of the ship, or hired it (navem per aversionem conduxisset), whether he commanded the ship himself (sive ipse NAVIS MAGISTER esset), or employed a slave or any other person for that purpose (navi præficeret), was called navis EXERCITOR; and an action lay against him (in eum competebat, erat, vel dabatur), for the contracts made by the master of the ship, as well as by himself, called ACTIO EXERCITORIA.

An action lay against a father or a master of a family, for the contracts made by his son or slave, called actio DE PECULIO or actio DE IN REM VERSO, if the contract of the slave had turned to his master's profit; or actio JUSSU, if the contract had been made by the master's order.

But the father or master was bound to make restitution, not to the entire amount of the contract (non in solidum), but to the extent of the peculium, and the profit which he had received.

If the master did not justly distribute the goods of the slave among his creditors, an action lay against him, called actio TRIBUTORIA. An action also lay against a person in certain cases, where the contract was not expressed, but presumed by law, and therefore called Obligatio QUASI EX CONTRACTU; as when one, without any commission, managed the business of a person in his absence, or without his knowledge: hence he was called NEGOTIORUM GESTOR, or VOLUNTARIUS AMICUS, Cic. Cacin. 5., vel PROCUrator, Cic. Brut. 4.

3. PENAL ACTIONS.

ACTIONS for a private wrong were of four kinds: EX FURTO, RAPINA, DAMÑO, INJURIA; for theft, robbery, damage, and personal injury.

1. The different punishments of thefts were borrowed from the Athenians. By the laws of the Twelve Tables, a thief in the nighttime might be put to death: SI NOX (noctu) FURTUM FAXIT, SIM (si eum) ALIQUIS OCCISIT (occiderit), JURE CASUS ESTO; and also in the day-time, if he defended himself with a weapon: SI LUCI FUrtum FAXIT, SIM ALIQUIS ENDO (in) IPSO FURTO CAPSIT (ceperit), VERBERATOR, ILLIQUE, CUI FURTUM FACTUM ESCIT (erit) ADDICITOR, Gell. xi. ult., but not without having first called out for assistance, sed non nisi is, qui interemturus erat, QUIRITARET, i. e. clamaret QUIRITES, VOSTRAM FIDEM, Sc. imploro, vel PORRO QUIRITES.

The punishment of slaves was more severe. They were scourged, and thrown from the Tarpeian rock. Slaves were so addicted to this

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ACTIONS FOR THEFT, ROBBERY, DAMAGE.

iii. 16., Quid domini faciant, audent cùm talia fures! so Horat. Ep. i. 6. 46., and theft, SERVILE PROBRUM, Tacit. Hist. i. 48.

But afterwards these punishments were mitigated by various laws, and by the edicts of the prætors. One caught in manifest theft (in FURTO MANIFESTO) was obliged to restore fourfold (quadruplum), besides the thing stolen; for the recovery of which there was a real action (vindicatio) against the possessor, whoever he was.*

If a person was not caught in the act, but so evidently guilty that be could not deny it, he was called Fur NEC MANIFESTUŠ, and was punished by restoring double, Gell. xi. 18.

When a thing stolen was, after much search, found in the possession of any one, it was called FURTUM CONCEPTUM, (see p. 168.) and by the law of the Twelve Tables was punished as manifest theft, Gell. ibid. Inst. iv. 1. 4. ; but afterwards, as furtum nec manifestum.

If a thief, to avoid detection, offered things stolen (res furtivas vel furto ablatas) to any one to keep, and they were found in his possession, he had an action, called Actio FURTI OBLATI, against the person who gave him the things, whether it was the thief or another, for the triple of their value, ibid.

If any one hindered a person to search for stolen things, or did not exhibit them when found, actions were granted by the prætor against him, called Actiones FURTI PROHIBITI et NON EXHIBITI; in the last for double, Plaut. Pœn. iii. 1. 61. What the penalty was in the first is uncertain. But in whatever manner theft was punished, it was always attended with infamy.

2. Robbery (RAPINA) took place only in movable things (in rebus mobilibus). Immovable things were said to be invaded, and the possession of them was recovered by an interdict of the prætor.

Although the crime of robbery (crimen raptûs) was much more pernicious than that of theft, it was, however, less severely punished. An action (actio VI BONORUM RAPTORUM) was granted by the prætor against the robber (in raptorem), only for fourfold, including what he had robbed. And there was no difference whether the robber was a freeman or a slave; only the proprietor of the slave was obliged, either to give him up (eum noxæ dedere), or pay the damage (damnum præstare).

3. If any one slew the slave or beast of another, it was called DAMNUM INJURIA DATUM, i. e. dolo vel culpa nocentis admissum, whence ACTIO vel JUDICIUM DAMNI INJURIA, Sc. dati, Cic. Rosc. Com. 11., whereby he was obliged to repair the damage by the Aquilian law. QUI SERVUM SERVAMVE, ALIENUM ALIENAMVE, QUADRUPEDEM Vel PECUDEM INJURIA OCCIDERIT, QUANTI ID IN EO ANNO PLURIMI FUIT (whatever its highest value was for that year), TANTUM ES DARE DOMINO DAMNAS ESTO. By the same law, there was an action against a person for hurting any thing that belonged to another, and also for corrupting another man's slave, for double if he denied (ADVERSUS INFICIANTEM IN DUPLUM), l. 1. princ. D. de serv. corr. There was, on account of the same crime, a prætorian action for double, even against a person who confessed, l. 5. § 2. ibid.

“If the delinquent was too poor to make the payment required, he was adjudged as a slave to the injured party." - Blair, p. 40.

PENALTIES FOR PERSONAL INJURIES, ETC.

209

4. Personal injuries or affronts (INJURIE) respected either the body, the dignity, or character of individuals. They were variously punished at different periods of the republic.

By the Twelve Tables, smaller injuries (injuriæ leviores) were punished with a fine of twenty-five asses or pounds of brass.

But if the injury was more atrocious; as, for instance, if any one deprived another of the use of a limb (SI MEMBRUM RUPSIT, i. e. ruperit), he was punished by retaliation (talione), if the person injured would not accept of any other satisfaction. (See p. 164.). If he only dislocated or broke a bone, QUI OS EX GENITALI (i. e. ex loco ubi gignitur) FUDIT, he paid 300 asses, if the sufferer was a freeman, and 150, if a slave, Gell. xx. 1. If any one slandered another by defamatory verses (si quis aliquem publicè diffamásset, eique adversus bonos mores convicium fecisset, affronted him, vel carmen famosum in eum condidisset), he was beaten with a club, Hor. Sat. ii. 1. 82. Ep. ii. 1. 154. Cornut. ad Pers. Sat. 1.; as some say, to death, Cic. apud Augustin. de Civit. Dei, ii. 9. 12.

But these laws gradually fell into disuse, Gell. xx. 1., and, by the edicts of the prætor, an action was granted on account of all personal injuries and affronts only for a fine, which was proportioned to the dignity of the person, and the nature of the injury. This, however, being found insufficient to check licentiousness and insolence, Sulla made a new law concerning injuries, by which, not only a civil action, but also a criminal prosecution, was appointed for certain injuries, with the punishment of exile, or working in the mines. Tiberius ordered one who had written defamatory verses against him to be thrown from the Tarpeian rock, Dio. lvii. 22.

An action might also be raised against a person for an injury done by those under his power, which was called ACTIO NOXĂLIS; as, if a slave committed theft, or did any damage without his master's knowledge, he was to be given up to the injured person: (SI SERvus, INSCIENTE DOMINO, FURTUM FAXIT, NOXIAMVE NOXIT, nocuerit, i. e. damnum fecerit, NOXÆ DEDITOR): And so, if a beast did any damage, the owner was obliged to offer a compensation, or give up the beast (SI QUADRUPES PAUPERIEM, damnum, FAXIT, DOMINUS NOXÆ ÆSTIMIAM, damni æstimationem, OFFERTO: SI NOLIT, QUOD NOXIT, DATO).

There was no action for ingratitude (actio ingrati), as among the Macedonians, or rather Persians; because, says Seneca, all the courts at Rome (omnia fora, sc. tria, de Ir. ii. 9.) would scarcely have been sufficient for trying it, Senec. Benef. ii. 6. He adds a better reason; quia hoc crimen in legem cadere non debet, c. 7.

4. MIXED AND ARBITRARY ACTIONS.

ACTIONS by which one sued for a thing (rem persequebatur), were called Actiones REI PERSECUTORIÆ; but actions merely for a penalty or punishment were called PENALES; for both, MIXTE.

Actions in which the judge was obliged to determine strictly, according to the convention of parties, were called Actiones STRICTI JURIS: actions which were determined by the rules of equity (ex aquo et bono), were called ARBITRARIÆ, or BONÆ FIDEI. In