Dictionary of Greek and Roman antiquities. Ed. by William Smith. Illustrated by numerous engravings on wood.

ACTIO. ACTIO. 11
the laws of the Twelve Tables, was in effect a security for his appearance before the praetor (in
dragging of the defendant before the praetor if he jure) on a day named, commonly the day but one
refused to go quietly. This rude proceeding was after the injus vocatio, unless the matter in dispute
modified in later times, and in many cases there was settled at once. The defendant, on finding a
could be no in jus vocatio at all, and in other surety, was said vades dare (Hor. Serne. I. i. 11),
cases it was necessary to obtain the praetor's per- vadimonium promittere, or facere; the surety, vas,
mission under pain of a penalty. It was also was said s.pondere; the plaintiff when satisfied
established that a man could not be dragged from with the surety was said, vadari reum, to let him
his own house; but if a man kept his house to go on his sureties, or to have sureties from him.
avoid, as we should say, being served with a writ, When the defendant promised to appear injure on
he ran the risk of a kind of sequestration (actor the day named, without giving any surety, this was
in bona mittebatur). The object of these rules called vadimoniuam purun. In some cases recuwas to make the defendant appear before the peratores were named, who, in case of the decompetent jurisdiction; the device of entering an fendant making default, condemned him in the
appearance for the defendant does not seem to sum of money named in the vadimonium.
have suggested itself to the Roman lawyers. (Dig. 2. If the defendant appeared on the day appointed,
tit. 4.) If the defendant would not go quietly, he was said uadimonium sistere; if he did not apthe plaintiff called on any bystander to witness pear, he was said vadimzonium deseruisse, and the
(antestari) that he had been duly summoned, praetor gave to the plaintiff the bonorum possessio.
touched the ear of the witness, and dragged the (Hor. Seres. i. 9. 36-41; Cic. Pro P. Quintio,
defendant into court. (Hor. Serm. i. 9. 75-78; c. 6.) Both parties, on the day appointed, were
Plautus, Curcul. v. 2.) The parties might settle summoned by a crier (praeco), when the plaintiff
their dispute on their way to the court, or the de- made his claim or demand, which was very briefly
fendant might be bailed by a vindex. (Cic. Top. expressed, and may be considered as corresponding
2; Gaius, iv. 46; Gellius, xvi. 10.) The vindex to our declaration at law.
must not be confounded with the vades. This The defendant might either deny the plaintiff's
settlement of disputes on the way was called trans- claim, or he might reply to it by a plea, exceptio.
actio in via, and serves to explain a passage in St. If he simply denied the plaintiff's claim, the cause
Matthew (v. 25).* was at issue, and a judex might be demanded.
When before the praetor, the parties were said The forms of the exceptio also were contained in
jure agere. The plaintiff then prayed for an ac- the praetor's edict, or upon hearing the facts the
tion, and if the praetor allowed it (dabat actionem), praetor a apted thb plea to the case. The exceptio
he then declared what action he intended to bring was the defendant's defence, and was often merely
aygainst the defendant, which was called edere an equitable answer or plea to the plaintiff's legal
actionesa. This might be done in writing, or demand. The plaintiff might claim a thing upon
orally, or by the plaintiff taking the defendant to his contract with the defendant, and the defendant
the album, and showing him which action he in- might not deny the contract, but might put in a
tended to rely on. (Dig. 2. tit. 13.) *As the plea of fraud (dolus nzalus), or that he had been
forsmulae comprehended, or were supposed to com- constrained to come to such agreement. The
prehend, every possible form of action that could exceptio was in effect something which negatived
be required by a plaintiff, it was presumed that he the plaintiff's demand, and it was expressed by a
could find among all the formulae some one which negative clause: thus, if the defendant asserted that
was adapted to his case, and he was accordingly the plaintiff fraudulently claimed a sum of money
supposed to be without excuse if he did not take which he had not given to the defendant, the expains to select the proper formula. (Cic. Pro Ros. ceptio would run thus: Si in ea re nilhil dolo malo
Com. c. 8.) If he took the wrong one, or if he Auli Agerii factumrn sit neque fiat. Though the
claimed more than his due, he lost his cause (causa exceptio proceeded from the defendant, it was excadebat, Cic. De Orat. i. 36); but the praetor some- pressed in this form, in order to be adapted for
times gave him leave to amend his claim or intentio. insertion in the formula, and to render the con(Gaius, iv. 53, &c.) If, for example, the contract demnnatio subject to the condition.
between the parties was for something in senere, Exceptions were pereezptoriae or dilatoriae.
and the plaintiff claimed something in specie, he Peremptory exceptions were a complete and perlost his action: thus the contract might be, that petual answer to the plaintiffs demand, such as
the defendant undertook to sell the plaintiff a an exceptio of dolus malus, or of res judicata.
quantity of dye-stuff or a slave; if the plaintiff Dilatory exceptions were, as the name imports,
claimed Tyrian purple, or a particular slave, his merely calculated to delay the plaintiff's demand;
action was bad; therefore, says Gaius, according as, for instance, by showing that the debt or duty
to the terms of the contract so ought the claim of claimed was not yet due. Gaius considers the exthe intentie to be. As the formulae were so numer- ceptio litis dividuae and rei residuae (iv. 122) as
ous and comprehensive, the plaintiff had only to belonging to this class. If a plaintiff prosecuted
select the formula which he supposed to be suitable his action after a dilatory exception, he lost altoto his case, and it would require no further varia- gether his right of action. There might be dilatory
tion than the insertion of the names of the parties exceptions also to the person of the plaintiff, of
and of the thing claimed, or the subject-matter of which class is the exceptio cognitoria, by which the
the suit, with the amount of damages, &c., as the defendant objects either that the plaintiff is not
case might be. When the praetor had granted an intitled to sue by a cognitor; or that the cognitor
action, the plaintiff required the defendant to give whom he had named was not qualified to act as a
Itisnotasyotaecrrctyt h cognitor. If the exception was allowed, the plaintiff
" It is not easy to state correctly the changes could either sue himself, or name a proper cognitor,
in procedure which took place after the abolition as the case might be. If a defendant neglected to
of the legitinzae actiones. Compare Gaius iv. 25, 46. take advantage of a peremptory eeceptio, the praetor