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TITLE XI. OF SECURITY

The old system of taking security from litigants differed from that
which has more recently come into use.

Formerly the defendant in a real action was obliged to give security, so
that if judgement went against him, and he neither gave up the property
which was in question, nor paid the damages assessed, the plaintiff
might be able to sue either him or his sureties: and this is called
security for satisfaction of judgement, because the plaintiff stipulates
for payment to himself of the sum at which the damages are assessed.
And there was all the more reason for compelling the defendant in a real
action to give security if he was merely the representative of another.
From the plaintiff in a real action no security was required if it was
on his own account that he sued, but if he was merely an attorney, he
was required to give security for the ratification of his proceedings
by his principal, owing to the possibility of the latter's subsequently
suing in person on the same claim. Guardians and curators were required
by the Edict to give the same security as attorneys; but when they
appeared as plaintiffs they were sometimes excused.

1 So much for real actions. In personal actions the same rules applied,
so far as the plaintiff was concerned, as we have said obtained in real
actions. If the defendant was represented by another person, security
had always to be given, for no one is allowed to defend another without
security; but if the defendant was sued on his own account, he was not
compelled to give security for satisfaction of judgement.

2 Nowadays, however, the practice is different; for if the defendant
is sued on his own account, he is not compelled to give security
for repayment of the damages assessed, whether the action be real or
personal; all that he has to do is to enter into a personal engagement
that he will subject himself to the jurisdiction of the court down
to final judgement; the mode of making such engagement being either
a promise under oath, which is called a sworn recognizance, or a bare
promise, or giving of sureties, according to the defendant's rank and
station.

3 But the case is different where either plaintiff or defendant appears
by an attorney. If the plaintiff does so, and the attorney's appointment
is not enrolled in the records, or confirmed by the principal personally
in court, the attorney must give security for ratification of his
proceedings b