PRAES
PRAES According to Ausonius (
Idyll. 12.9), Vas
was one who gave security or went bail for another in a
causa capitalis, and he who gave security for another in a
civil action was called Praes: similarly Festus (s. v.
Vadem) says that. Vas is a sponsor in a
res capitalis. But the application of the word Vadimonium in
civil causes (e. g. Gaius, 4.184-187) shows that this distinction is not
perfectly accurate, and Varro (
L. L. 6.74) defines Vas as any
person who promised Vadimonium or security for another in any legal
proceeding: so that possibly Vas may have both a general and a specific
sense, in the latter of which it is occasionally (as by Ausonius and Festus)
contrasted with Praes (cf. Sallust,
Sal. Jug.
35,
61; Hor.
Sat. 1.1, 11, and Heindorf's note). Praes really seems to be a
contraction of
prae-vas (Rivier,
Untersuchungen über die cautio praedibus
praediisque, p. 14), and Vas itself may relate to the freedom which
the party obtains by means of the security given ( “Vades ideo dicti
quod qui eos dedit potestatem vadendi id est discedendi habet,”
Acron
ad Hor.
loc.
cit.: cf. Gellius,
7.19), or more probably,
as Rivier holds, it is connected with the old Norse
ved and high German
wetti, words denoting
“pledge,” so that
vas would mean a
surety, and
prae-vas perhaps a surety who besides
pledging his person pledges his property [PRAEDA;
PRAEDIUM] for the discharge by another of his obligations, or his
appearance in court. Another but very dubious etymology of the word is given
by Festus (s. v.
Manceps), who says that
Manceps signifies him who buys or hires any public property, and that he is
also called Praes because he is bound to make good his contract (
praestare quod promisit) as well as he who is his
Praes (see also Varro,
l.c.), so that according to
this Praes is a surety of one who is under some liability to the state. The
passage of Festus explains some lines in the life
[p. 2.480]of Atticus (Cornelius
Nepos, 6), in which it
is said that he never bought anything at a public auction (
ad hastam publicam), and never was either Manceps or
Praes. The use of Praes as a surety in a civil action occurs under the Legis
actio as well as the formulary procedure: in the Sacramentum the defendant,
to whom interim possession of the property in dispute was awarded, had to
give “praedes litis et vindiciarum” (Gaius, 4.16); and under
the later formulary system, when a real action was tried
per sponsionem, the security given by the defendant was
called “pro praede litis et vindiciarum” (Gaius, 4.91,
94
a): so too in some MSS. of
Dig. 10,
3,
6,
7, the reading is
praedibus or
praediis cavere, but in
the latest edition of Krüger and Mommsen
pro
dedibus is adopted as correct. According to the Pseudo-Asconius
(
in Verr. 1.54, 142) the goods of a Praes were called
Praedia (see
PRAEDIUM), and in
Cicero (
l.c.) and Livy (
22.60) “praedibus et praediis” come together (Rivier's
treatise on the topic has been already referred to): but it is clear from
Varro that this use of
praedia is confined to
the case of a debtor to the state, whose sureties were liable both in their
persons (
praedibus) and their property (
praediis). If, in such a case, the debtor did not
pay, the property of the surety was sold by auction under the authority of
the state, and the purchaser (
praediator,
Gaius, 2.61) became owner
ex jure Quiritium,
though the surety might recover it by an anomalous form of usucapio (Gaius,
l.c.). The chief authority on the
jus praediatorium is now the Lex Municipalis
Malacitana, cap. 63-65.
[
J.B.M]
