4.1.192 to 4.1.196

(133) At the present time, however, as we mentioned above, all prescriptions proceed from the plaintiff, while formerly some of them were pleaded in behalf of the defendant, as for instance, the following prescription: "Let this point be determined, if it does not prejudice the estate"; which is now changed into a species of exception, and is used when the claimant of the estate prejudices the right to the same by bringing another kind of action, for example, if he brings suit for certain articles belonging to the estate; for it would be unjust to render the result of an action involving the entire estate dependent upon a decision having reference to only a portion of the same . . . . [1] (134) If suit is brought under a stipulation entered into by a slave, and the Intentio states to whom the amount is to be paid, that is to say, that what the slave stipulated for should be paid to his master; the allegations in the prescription should be true in accordance with their natural meaning. (135) Moreover, what we have said with reference to slaves we understand to be applicable to all other persons subject to our authority. (136) Again, we should observe that when we bring an action against a party who promised something which was uncertain, the formula should be drawn up so as to include a prescription, instead of a statement of the cause of action, as follows: "Let So-and-So be judge. For the reason that Aulus Agerius stipulated for something uncertain from Numerius Negidius, payment of which is now due, whatever on this account Numerius Negidius should transfer to, or do for, Aulus Agerius, etc." (137) When an action is brought against a sponsor or surety, it is the practice, in the case of the sponsor, to employ the following form of prescription: "Let the action be tried on the ground that Aulus Agerius stipulated for something of uncertain amount from Lucius Titius, for which Numerius Negidius is sponsor for the amount which is now due." In the case of a surety, the following form is employed: "Let the case be tried on the ground that Numerius Negidius became surety for Lucius Titius for an uncertain amount, which is now due"; and then the formula is added. [2]