the proposer of the Lex Hostilia, of uncertain date.
The old Roman law pro hibited actions from being brought by one person in the name of another, except in the case of actions pro populo, pro liberate,
and pro tutela.
(Inst. 4. tit. 10. pr.)
By an action pro tutela
seems to be meant the case of an action brought by a tutor in the name of a ward (compare Gel. 5.13
); and it was a rule of law that no third person could act for the tutor in behalf of the ward.
By the Lex Hostilia, an actio furti
was allowed to be brought in the name of one who was absent on the public service, military or civil; and if the absent person were a tutor, a third person was allowed to supply his place, where his ward had received an injury, for which an actio furti
was the proper remedy.
This law, which exempted soldiers on foreign duty from ordinary rules of law, was probably connected with the actiones Hostilianae
men tioned by Cicero. (De Orat.
As in an actio furti,
founded upon the Lex Hostilia, the damage recovered by the nominal plaintiff ensued to the benefit of the absent soldier, a legal argument might be drawn by analogy in favour of the claim of the soldier to whom allusion is made by Cicero in the passage referred to.
The father of the soldier had died during his son's absence, after having made a stranger his heir, in the erroneous belief of his son's death.
The argument from analogy would be, that the stranger took the inherit ance for the soldier's benefit. Hugo and others have supposed that the actiones Hostilianae were testamentary formulae.