APPOINTMENT OF COGNITORES
A cognitor was a representative with a critical task: he stood in for a party, becoming in essence the litigant himself.[342] A cognitor was appointed with formal words, but the sources leave open the question of when exactly these words were pronounced, and thus when the cognitor formally assumed his task and title.[343] One form of words mentions the very action the plaintiff wishes to bring, and where this form is used the cognitor is appointed after proceedings in iure have begun (ājudicialā), but another form is more general, and leaves open the possibility that a cognitor appointed by this second form is appointed much earlier, perhaps earlier even than in ius vocatio.[344]
Maria Zablocka expressed doubts that cognitores were ever appointed before in ius vocatio[345] In reply Aniello Parma set out to show that one of the documents in the Murecine archive describes two cognitores who were, in fact, appointed in this way.[346] The document is a āsettlement agreementā[347] in a lawsuit for which we possess, remarkably, two other documents.
The plaintiff, Lucius Faenius Eumenes, is suing one Caius Sulpicius Faustus ex empto and for a ring given as arra. We have these details from two documents prepared in the summer of 48. These two documents (both vadimonia) show that the parties anticipated having their case heard in Puteoli.[348] But shortly after these documents were prepared, the parties anticipated having their case heard in Rome instead of Puteoli. A transfer of this kind was ordinarily accomplished by a special kind of vadimonium, one in which a defendant promised to appear in Rome, rather than locally, at some time in the future.[349] We do not possess the very document recording Faustus' promise to appear in Rome, but we do possess an allusion to that promise in the settlement agreement, prepared some months after the other two documents. From the settlement agreement we understand that the promise to appear in Rome had not been performed by Faustus himself, but by his cognitor, in reply to a stipulation by Eumenes' cognitor.26 The settlement agreement itself is the chirographum of the buyer Eumenes, who declares that he has agreed with Faustus to end the case. To effect the settlement, the vadimonium by which the parties' cognitores had agreed to meet in Rome must be withdrawn in some way; the parties opt to do so by declaring that Eumenes will indemnify Faustus' cognitor, should Faustus' cognitor fail to appear and an action be taken against him for his non-appearance.27 Thus the sequence of events in the lawsuit is: (1) a promise by Faustus to appear in Puteoli; (2) a second promise by Faustus to appear in Puteoli; (3) a promise by Faustus' cognitor to appear in Rome; and (4) settlement agreement.Parma's argument is based on the chronology of events. Parma's underĀstanding is that all of the vadimonia in the lawsuit are private engagements for first appearances in iure. After the two proposed appearances in Puteoli were aborted, cognitores were appointed. Then followed the third vadimoĀnium - also, according to Parma, a private engagement for a first appearĀance. According to the common opinion, private engagements such as these preceded summons by in ius vocatio.28 Thus, Parma argues, both cognitores in the lawsuit were appointed before in ius vocatio, refuting the argument of Zablocka that cognitores were never appointed so early as this.
D.
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