THE INSTITUTES OF JUSTINIAN. |
| ~ Book IV ~ |
| ( J. B. Moyle, The Institutes of Justinian, 5th ed., Oxford, 1913 ). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 |
Having treated in the preceding Book of contractual
and quasi-contractual obligations, it remains to inquire into obligations
arising from delict. The former, as we remarked in the proper place,
are divided into four kinds; but of these latter there is but one kind,
for, like obligations arising from real contracts, they all originate
in some act, that is to say, in the delict itself, such as a theft,
a robbery, wrongful damage, or an injury. 1. Theft is a fraudulent dealing with property, either in itself, or in its use, or in its possession: an offence which is prohibited by natural law. 2. The term furtum, or theft, is derived either from furvum, meaning "black," because it is effected secretly and under cover, and usually by night: or from fraus, or from ferre, meaning "carrying off"; or from the Greek word "phor," thief, which indeed is itself derived from "pherein," to carry off. 3. There are two kinds of theft, theft detected in the commission, and simple theft: the possession of stolen goods discovered upon search, and the introduction of stolen goods, are not (as will appear below) so much specific kinds of theft as actionable circumstances connected with theft. A thief detected in the commission is termed by the Greeks "ep’autophoro"; in this kind is included not only he who is actually caught in the act of theft, but also he who is detected in the place where the theft is committed; for instance, one who steals from a house, and is caught before he has got outside the door; or who steals olives from an olive garden, or grapes from a vineyard, and is caught while still in the olive garden or vineyard. And the definition of theft detected in the commission must be even further extended, so as to include the thief who is caught or even seen with the stolen goods still in his hands, whether the place be public or private, and whether the person who sees or catches him be the owner of the property, or some third person, provided he has not yet escaped to the place where he intended to take and deposit his booty: for if he once escapes there, it is not theft detected in the commission, even if he be found with the stolen goods upon him. What is simple theft is clear from what has been said: that is to say, it is all theft which is not detected in the commission. 4. The offence of discovery of stolen goods occurs when a person’s premises are searched in the presence of witnesses, and the stolen property is found thereon; this makes him liable, even though innocent of theft, to a special action for receiving stolen goods. To introduce stolen goods is to pass them off to a man, on whose premises they are discovered, provided this be done with the intent that they shall be discovered on his premises rather than on those of the introducer. The man on whose premises they are found may sue the latter, though innocent of theft, in an action for the introduction of stolen goods. There is also an action for refusal of search, available against him who prevents another who wishes to look in the presence of witnesses for stolen property; and finally, by the action for non-production of stolen goods, a penalty is imposed by the praetor’s edict on him who has failed to produce stolen property which is searched for and found on his premises. But the last-named actions, namely, those for receiving stolen goods, for introducing them, for refusal of search, and for non-production, have now become obsolete: for the search for such property is no longer made in the old fashion, and accordingly these actions went out of use also. It is obvious, however, that any one who knowingly receives and hides stolen property may be sued by the action for simple theft. 5. The penalty for theft detected in the commission is four times the value, and for simple theft twice the value, of the property stolen, whether the thief be a slave or a free person. 6. Theft is not confined to carrying away the property of another with the intent of appropriation, but comprises also all corporeal dealing with the property of another against the will of the owner. Thus, for a pawnee to use the thing which he has in pawn, or to use a thing committed to one’s keeping as a deposit, or to put a thing which is lent for use to a different use than that for which it was lent, is theft; to borrow plate, for instance, on the representation that the borrower is going to entertain his friends, and then to carry it away into the country: or to borrow a horse for a drive, and then to take it out of the neighborhood, or like the man in the old story, to take it into battle. 7. With regard, however, to those persons who put a thing lent for use to a different purpose than the lender contemplated, the rule is that they are guilty of theft only if they know it to be contrary to the will of the owner, and that if he had notice he would refuse permission; but if they believe that he would give permission, it is not theft: and the distinction is just, for there is no theft without unlawful intention. 8. It is also said not to be theft if a man turns a thing lent for use to a use other than he believes its owner would sanction, though in point of fact its owner is consenting. Whence arose the following question: if Antoninus solicits the slave of Peri to steal property of the latter, and convey it to him, and the slave informs Peri of it, who, wishing to detect Antoninus in the very act, allows the slave to convey the property to him; can an action of theft, or for corrupting the slave, or neither, be maintained against Antoninus? The case was submitted to us, and we examined the conflicting opinions of the earlier jurists on the matter: some of whom thought that neither action lay, and others, that Peri might sue on theft only. But we, in order to put an end to such quibbles, have enacted by our decision that in such case both the action on theft and that for corrupting a slave shall lie. It is true that the slave has not been corrupted by the advances made to him, so that the case does not come within the rules which introduced the action for such corruption: yet the would-be corrupter’s intention was to make him dishonest, so that he is liable to a penal action, exactly as if the slave had actually been corrupted, lest his immunity from punishment should encourage others to perpetrate a similar wrong on a slave less strong to resist temptation. 9. A free man too may be the subject of a theft – for instance, a child in my power, if secretly removed from my control. 10. So too a man sometimes steals his own property – for instance, a debtor who purloins the goods which he has pledged to a creditor. 11. Theft may be chargeable on a person who is not the perpetrator; on him, namely, by whose aid and abetment a theft is committed. Among such persons we may mention the man who knocks money out of your hand for another to pick up, or who stands in your way that another may snatch something from you, or scatters your sheep or your oxen, that another may steal them, like the man in the old books, who waved a red cloth to frighten a herd. If the same thing were done as a frolic, without the intention of assisting a theft, the proper action is not theft, but on the case. Where, however, Titius commits theft with the aid of Maevius, both are liable to an action on theft. A man, too, is held to have aided and abetted a theft who places a ladder under a window, or breaks open a window or a door, in order that another may steal, or who lends tools for the breaking of them open, or a ladder to place under a window, if he knows the object for which they are borrowed. It is clear that a man is not liable on theft, who, though he advises and instigates an offence, does not actually aid in its commission. 12. If a child in power, or a slave, steal property of his father or master, it is theft, and the property is deemed stolen, so that no one can acquire it by usucapion until it has returned into the hands of the owner; but no action will lie on the theft, because between a son in power and his father, or between a slave and his master, no action will lie on any ground whatsoever. But if the offender is aided and abetted by a third person, the latter is liable to an action on theft, because a theft has in fact been committed, and by his aid and abetment. 13. The action on theft will lie at the suit of any person interested in the security of the property, even though he be not its owner: indeed, even the owner cannot maintain the action unless he suffers damage from the loss. 14. Hence, when a pawn is stolen the pawnee can sue, even though his debtor be perfectly able to pay the debt; for it is more advantageous to him to rely on the pledge, than to bring a personal action: and this rule is so unbending that even the pawnor who steals a pawn is suable for theft by the pawnee. 15. So, if clothes are delivered to be cleaned or finished or mended for a certain remuneration, and then are stolen, it is the fuller or tailor who can sue on the theft, and not the owner; for the owner suffers nothing by the loss, having the action of letting against the fuller or tailor for the recovery of his property. Similarly a purchaser in good faith, even though a good title as owner is not given to him, can bring the action of theft if the property is stolen, exactly like the pawnee. The action is, however, not maintainable at the suit of a fuller or tailor, unless he is solvent, that is to say, unless he is able to fully indemnify the owner; if he is insolvent, the owner cannot recover from him, and so can maintain an action against the thief, being, on this hypothesis, interested in the recovery of the property. Where the fuller or tailor is only partly instead of wholly solvent the rule is the same. 16. The older lawyers held that what has been said of the fuller and tailor applied also to the borrower for use, on the ground that as the remuneration which the fuller receives makes him responsible for custody, so the advantages which the borrower derives from the use requires him to keep it safely at his peril. Our wisdom, however, has amended the law in this particular in our decisions, by allowing the owner the option of suing either the borrower by action on the loan, or the thief by action of theft; though when his choice has been determined he cannot change his mind, and resort to the other action. If he prefers to sue the thief, the borrower is absolutely released from liability; but if he proceeds against the borrower, he cannot in any way himself sue the thief on the stealing, though this may be done by the borrower, who is defendant in the other action, provided that the owner knew, at the time when he began his action against the borrower, that the thing had been stolen. If he is ignorant of this, or even if he is merely doubtful whether the borrower still has the property in his possession or not, and sues him on the loan, he may, on subsequently learning the facts, and if he wishes to drop the action which he has commenced, and sue the thief instead, adopt this course, in which case no obstacle is to be thrown in his way, because it was in ignorance that he took action and sued the borrower on the loan. If, however, the owner has been indemnified by the borrower, in no case can he bring the action of theft against the thief, as his rights of action pass to the person who has compensated him for the loss of his property. Conversely it is clear, that if, at the outset, the owner began an action on the loan against the borrower, not knowing that the property had been stolen, and subsequently, on learning this, proceeded against the thief instead, the borrower is absolutely released from liability, whatever may be the result of the owner’s action against the thief; the rule being the same, whether the borrower be wholly or only partially insolvent. 17. As a depositary is not answerable for the safe keeping of the thing deposited, but only for fraud, and, if it is stolen, is not compellable to make restitution by action of deposit, he has no interest if it is lost, and therefore the action of theft is maintainable only by the depositor. 18. Finally, it has been a question whether a child below the age of puberty, who carries away the property of another, is guilty of theft. The answer is that, as theft depends on intention, obligation by theft is not incurred unless the child is near puberty, and so understands its delinquency. 19. The object of the action on theft, whether it be for double or quadruple the value of the goods stolen, is merely the recovery of the penalty; to recover the goods themselves or their value the owner has an independent remedy by vindication or condiction. The former is the proper remedy when it is known who is in possession of the goods, whether this be the thief or any one else: the latter lies against the thief or his heir, whether in possession of the stolen property or not. |
Robbery is chargeable also as theft;
for who deals with the property of another more against that other’s
will than the robber? And thus the description of the robber as an audacious
thief is a good one. However, as a special remedy for this offense the
praetor has introduced the action for robbery, or rapine with violence,
which may be brought within a year for four times the value, after a
year for simple damages, and while lies even when only a single thing
of the slightest value has been taken with violence. This fourfold value,
however, is not all penalty, nor is there an independent action for
the recovery of the property or its value, as we observed was the case
in the action of theft detected in the commission; but the thing or
its value is included in the fourfold, so that, in point of fact, the
penalty is three times the value of the property, and this whether the
robber be taken in the act or not; for it would be absurd to treat a
robber more lightly than one who carries off property merely secretly. 1. This action is maintainable only where the robbery is attended with wrongful intention; consequently, if a man by mistake thought that property was his own, and, in his ignorance of law, forcibly carried it off in the belief that it was lawful for an owner to take away, even by force, a thing belonging to himself from a person in whose possession it was, he cannot be held liable to this action; and similarly on principle he would not in such a case be suable for theft. Lest, however, robbers, under the cloak of such a plea, should discover a method of gratifying a grasping habit with impunity, the law has been amended upon this point by imperial constitutions, by which it is enacted that it shall not be lawful for any one to forcibly carry off movable property, inanimate or animate, even though he believe it to belong to him; and that whosoever disobeys this shall forfeit the property, if, in fact, it be his, and if it be not, shall restore it, and along with it its value in money. And by the said constitutions it is also declared that this provision relates not only to movables (of which alone robbery can be committed), but also to forcible entries on land and houses, so as to deter men from all violent seizing upon property whatsoever under the cloak of such excuses. 2. In order to support this action it is not necessary that the goods of which robbery has been committed should belong to the plaintiff, provided they were taken from among his property. Thus, if a thing be let, or lent, or pledged to Titius, or even deposited with him under such circumstances that he has an interest in its not being carried off – for instance, by his having undertaken the entire responsibility for its safe custody; – or if he possesses it in good faith, or has a usufruct or any other right in it whereby he suffers loss or incurs liability through its being forcibly taken from him, the action will be maintainable by him; not necessarily in order to restore to him the ownership, but only to compensate him for what it is alleged he has lost by its being taken from his goods or withdrawn from his means. In fact, it may be said generally that where, supposing property to be taken secretly, the action of theft will lie, the action on robbery will lie at suit of the same person, if it be taken with violence. |
Unlawful damage is actionable under the lex Aquilia,
whose first chapter provides that if a slave of another man, or a quadruped
from his flocks or herds, be unlawfully killed, the offender shall pay
to the owner whatever was the highest value thereof within the year
next immediately preceding. 1. From the fact that this enactment does not speak of quadrupeds simply, but only of such quadrupeds as are usually included under the idea of flocks and herds, it is to be inferred that it has no application to wild animals or to dogs, but only to such beasts as can properly be said to graze in herds, namely horses, mules, asses, oxen, sheep, and goats. It is settled, too, that swine come under its operation, for they are comprehended in "herds" because they feed in this manner; thus Homer in his Odyssey, as quote by Aelius Marcianus in his Institutes, says, "You will find him sitting among his swine, and they are feeding by the Rock of Corax, over against the spring Arethusa." 2. To kill unlawfully is to kill without any right; thus a man who kills a robber is not liable to this action, if he could in no other way escape the danger by which he was threatened. 3. So, too, where one man kills another by misadventure, he is not liable under this statute, provided there is no fault or carelessness on his part; otherwise it is different, for under this statute carelessness is as punishable as wilful wrong-doing. 4. Accordingly, if a man, while playing or practising with javelins, runs your slave through as he passes by, a distinction is drawn. If it be done by a soldier in his exercising ground, that is to say, where such practice is usually conducted, he is in no way to blame; but if it be done by some one else, his carelessness will make him liable; and so it is with the soldier, if he do it in some place other than that appropriated to military exercises. 5. So, too, if a man is trimming a tree, and kills your slave as he passes by with a bough which he lets fall, he is guilty of negligence, if it is near a public way, or a private path belonging to a neighbour, and he does not call out to give people warning; but if he calls out, and the slave takes no pains to get out of the way, he is not to blame. Nor would such a man be liable, if he was cutting a tree far away from a road, or in the middle of a field, even if he did not call out; for strangers had no business to be there. 6. Again, if a surgeon operates on your slave, and then neglects altogether to attend to his cure, so that the slave dies in consequence, he is liable for his carelessness. 7. Sometimes, too, unskilfulness is undistinguishable from carelessness – as where a surgeon kills your slave by operating upon him unskilfully, or by giving him wrong medicines; 8. and similarly, if your slave is run over by a team of mules, which the driver has not enough skill to hold, the latter is suable for carelessness; and the case is the same if he was simply not strong enough to hold them, provided they could have been held by a stronger man. The rule also applies to runaway horses, if the running away is due to the rider’s deficiency either in skill or strength. 9. The meaning of the words of the statute "whatever was of the highest value thereof within the year" is that if any one, for instance, kills a slave of yours, who at the moment of his death is lame, or maimed, or blind of one eye, but within the year was sound and worth a price, the person who kills him is answer- able not merely for his value at the time of his death, but for his highest value within the year. It is owing to this that the action under this statute is deemed to be penal, because a defendant is sometimes bound to pay a sum not merely equivalent to the damage he has done, but far in excess of it; and consequently, the right of suing under the statute does not pass against the heir, though it would have done so if the damages awarded had never exceeded the actual loss sustained by the plaintiff. 10. By juristic construction of the statute, though not so enacted in its terms, it has been settled that one must not only take account, in the way we have described, of the value of the body of the slave or animal killed, but must also consider all other loss which indirectly falls upon the plaintiff through the killing. For instance, if your slave has been instituted somebody’s heir, and, before he has by your order accepted, he is slain, the value of the inheritance you have missed must be taken into consideration; and so, too, if one of a pair of mules, or one of four chariot horses, or one of a company of slave players is killed, account is to be taken not only of what is killed, but also of the extent to which the others have been depreciated. 11. The owner whose slave is killed has the option of suing the wrongdoer for damages in a private action under the lex Aquilia, or of accusing him on a capital charge by indictment. 12. The second chapter of the lex Aquilia is now obsolete; 13. the third makes provision for all damage which is not covered by the first. Accordingly, if a slave or some quadruped which comes within its terms, is wounded, or if a quadruped which does not come within its terms, such as a dog or wild animal, is wounded or killed, an action is provided by this chapter; and if any other animal or inanimate thing is unlawfully damaged, a remedy is herein afforded; for all burning, breaking, and crushing is hereby made actionable, though, indeed, the single word "breaking" covers all these offences, denoting as it does every kind of injury, so that not only crushing and burning, but any cutting, bruising, spilling, destroying, or deteriorating is hereby denominated. Finally, it has been decided that if one man mixes something with another’s win or oil, so as to spoil its natural goodness, he is liable under this chapter of the statute. 14. It is obvious that, as a man is liable under the first chapter only where a slave or quadruped is killed by express design or through negligence on his part, so, too, he is answerable for all other damage under this chapter only where it results from some wilful act or carelessness of his. Under this chapter, however, it is not the highest value which the thing had within a year, but that which it had within the last thirty days, which is chargeable on the author of the mischief. 15. It is true that here the statute does not expressly say "the highest value," but Sabinus rightly held that the damages must be assessed as if the words "highest value" occurred also in this chapter; the Roman people, who enacted this statute on the proposal of Aquilius the tribune, having thought it sufficient to use them in the first chapter only. 16. It is held that a direct action lies under this statute only when the body of the offender is substantially the instrument of mischief. If a man occasions loss to another in any other way, a modified action will usually lie against him; for instance, if he shuts up another man’s slave or quadruped, so as to starve him or it to death, or drives his horse so hard as to knock him to pieces, or drives his cattle over a precipice, or persuades his slave to climb a tree or go down a well, who, in climbing the one or going down the other, is killed or injured in any part of his body, a modified action is in all these cases given against him. But if a slave is pushed off a bridge or bank into a river, and there drowned, it is clear from the facts that the damage is substantially done by the body of the offender, who is consequently liable directly under the lex Aquilia. If damage be done, not by the body or to a body, but in some other form, neither the direct nor the modified Aquilian action will lie, though it is held that the wrongdoer is liable to an action on the case; as, for instance, where a man is moved by pity to loose another’s slave from his fetters, and so enables him to escape. |
By injury, in a general sense, is meant anything which
is done without any right. Besides this, it has three special significations;
for sometimes it is used to express outrage, the proper word for which
– contumely – is derived from the verb "to contemn,"
and so is equivalent to the Greek "hubris": sometimes it means
culpable negligence, as where damage is said to be done (as in the lex
Aquilia) "with injury," where it is equivalent to the Greek
"adikema"; and sometimes iniquity and injustice, which the
Greeks express by "adikia"; thus a litigant is said to have
received an "injury" when the praetor or judge delivers an
unjust judgement against him. 1. An injury or outrage is inflicted not only by striking with the first, a stick, or a whip, but also by vituperation for the purpose of collecting a crowd, or by taking possession of a man’s effects on the ground that he was in one’s debt; or by writing, composing, or publishing defamatory prose or verse, or contriving the doing of any of these things by some one else; or by constantly following a matron, or a young boy or girl below the age of puberty, or attempting anybody’s chastity; and, in a word, by innumerable other acts. 2. An outrage or injury may be suffered either in one’s own person, or in the person of a child in one’s power, or even, as now is generally allowed, in that of one’s wife. Accordingly, if you commit an "outrage" on a woman who is married to Titius, you can be sued not only in her own name, but also in those of her father, if she be in his power, and of her husband. But if, conversely, it be the husband who is outraged, the wife cannot sue; for wives should be protected by their husbands, not husbands by their wives. Finally, a father-in-law may sue on an outrage committed on his daughter-in-law, if the son to whom she is married is in his power. 3. Slaves cannot be outraged themselves, but their master may be outraged in their person, though not by all the acts by which an outrage might be offered to him in the person of a child or wife, but only by aggravated assaults or such insulting acts as clearly tend to dishonour the master himself: for instance, by flogging the slave, for which an action lies; but for mere verbal abuse of a slave, or for striking him with the fist, the master cannot sue. 4. If an outrage is committed on a slave owned by two or more persons jointly, the damages to be paid to these severally should be assessed with reference not to the shares in which they own him, but to their rank or position, as it is to the reputation and not to the property that the injury is done; 5. and if an outrage is committed on a slave belonging to Maevius, but in whom Titius has a usufruct, the injury is deemed to be done to the former rather than to the latter. 6. But if the person outraged is a free man who believes himself to be your slave, you have no action unless the object of the outrage was to bring you into contempt, though he can sue in his own name. The principle is the same when another man’s slave believes himself to belong to you; you can sue on an outrage committed on him only when its object is to bring contempt upon you. 7. The penalty prescribed for outrage in the Twelve Tables was, for a limb disabled, retaliation, for a bone merely broken a pecuniary mulct proportionate to the great poverty of the age. The praetors, however, subsequently allowed the person outraged to put his own estimate on the wrong, the judge having a discretion to condemn the defendant either in the sum so named by the plaintiff, or in a less amount; and of these two kinds of penalties that fixed by the Twelve Tables is now obsolete, while that introduced by the praetors, which is also called "honorary," is most usual in the actual practice of the courts. Thus the pecuniary compensation awarded for an outrage rises and falls in amount according to the rank and character of the plaintiff, and this principle is not improperly followed even where it is a slave who is outraged; the penalty where the slave is a steward being different from what it is when he is an ordinary menial, and different again when he is condemned to wear fetters. 8. The lex Cornelia also contains provisions as to outrages, and introduced an action on outrage, available to a plaintiff who alleges that he has been struck or beaten, or that a forcible entry has been made upon his house; the term "his house" including not only one which belongs to him and in which he lives but also one which is hired by him, or in which he is received gratuitously as a guest. 9. An outrage becomes "aggravated" either from the atrocious character of the act, as where a man is wounded or beaten with clubs by another; or from the place where it is committed, for instance, in the theatre or forum, or in full sight of the praetor; or from the rank of the person outraged, – if it be a magistrate, for instance, or if a senator be outraged by a person of low condition, or a parent by his child, or a patron by his freedman; for such an injury done to a senator, a parent, or a patron has a higher pecuniary compensation awarded for it than one done to a mere stranger, or to a person of low condition. Sometimes too the position of the wound makes an outrage aggravated, as where a man is struck in the eye. Whether the person on whom such an outrage is inflicted is independent or in the power of another is almost entirely immaterial, it being considered aggravated in either case. 10. Finally, it should be observed that a person who has been outraged always has his option between the civil remedy and a criminal indictment. If he prefers the former, the penalty which is imposed depends, as we have said, on the plaintiff’s own estimate of the wrong he has suffered; if the latter, it is the judge’s duty to inflict an extraordinary penalty on the offender. It should be remembered, however, that by a constitution of Zeno persons of illustrious or still higher rank may bring or defend such criminal actions on outrage by an agent, provided they comply with the requirements of the constitution, as may be more clearly ascertained by a perusal of the same. 11. Liability to an action on outrages attaches not only to him who commits the act, – the striking of a blow, for instance – but also to those who maliciously counsel or abet in the commission, as, for instance, to a man who gets another struck in the face. 12. The right of action on outrage is lost by condonation; thus, if a man be outraged, and takes no steps to obtain redress, but at once lets the matter, as it is said, slip out of his mind, he cannot subsequently alter his intentions, and resuscitate an affront which he has once allowed to rest. |
The obligation incurred by a judge who delivers an
unjust or partial decision cannot properly be called delictal, and yet
it does not arise from contract; consequently, as he cannot but be held
to have done a wrong, even though it may be due to ignorance, his liability
would seem to be quasi-delictal, and a pecuniary penalty will be imposed
on him at the judge’s discretion. 1. Another case of quasi-delictal obligation is that of a person from whose residence, whether it be his own, or rented, or gratuitously lent him, anything is thrown or poured out whereby another is injured; the reason why his liability cannot properly be called delictal being that it is usually incurred through the fault of some other person, such as a slave or freedman. Of a similar character is the obligation of one who keeps something placed or hung over a public way, which might fall and injure any one. In this last case the penalty has been fixed at ten aurei; in that of things thrown or poured out of a dwelling-house the action is for damages equivalent to double the loss sustained, though if a free man be thereby killed the penalty is fixed at fifty aurei, and even if he be merely injured he can sue for such damages as the judge shall in his discretion award; and here the latter should take into account the medical and other expenses of the plaintiff’s illness, as well as the loss which he has sustained through being disabled from work. 2. If a son in power lives apart from his father, and anything is thrown or poured out of his place of residence, or if he has anything so placed or hung as to be dangerous to the public, it is the opinion of Julian that no action lies against the father, but that the son should be made sole defendant; and the same principle should be applied to a son in power who is made a judge, and delivers an unjust or partial decision. 3. Similarly ship-owners, and inn and stable keepers are liable as on a quasi-delict for wilful damage or theft committed in their ships, inns, or stables, provided the act be done by some or one of their servants there employed, and not by themselves; for the action which is given in such cases is not based on contract, and yet as they are in some sense at fault for employing careless or dishonest servants, their liability would seem to be quasi-delictal. In such circumstances the action which is given is on the case, and lies at suit of the injured person’s heir, though not against the heir of the ship-owner, or inn or stable keeper. |
The subject of actions still remains for discussion. An action
is nothing else than the right of suing before a judge for what is due
to one. 1. The leading division of all actions whatsoever, whether tried before a judge or a referee, is into two kinds, real and personal; that is to say, the defendant is either under a contractual or delictal obligation to the plaintiff, in which case the action is personal, and the plaintiff’s contention is that the defendant ought to convey something to, or do something for him, or of a similar nature; or else, though there is no legal obligation between the parties, the plaintiff asserts a ground of action against some one else relating to some thing, in which case the action is real. Thus, a man may be in possession of some corporeal thing, in which Titius claims a right of property, and which the possessor affirms belongs to him; here, if Titius sues for its recovery, the action is real. 2. It is real also if a man asserts that he has a right of usufruct over a landed estate or a house, or a right of going or driving cattle over his neighbor’s land, or of drawing water from the same; and so too are the actions relating to urban servitudes, as, for instance, where a man asserts a right to raise his house, to have an uninterrupted prospect, to project some building over his neighbour’s land, or to rest the beams of his own house on his neighbour’s wall. Conversely, there are actions relating to usufructs, and to rustic and urban servitudes, of a contrary import, which lie at the suit of plaintiffs who deny their opponent’s right of usufruct, of going or driving cattle, of drawing water, of raising their house, or having an uninterrupted view, of projecting some building over the plaintiff’s land, or of resting the beams of their house in the plaintiff’s wall. These actions too are real, but negative, and never occur in disputes as to corporeal things, in which the plaintiff is always the party out of possession; and there is no action by which the possessor can (as plaintiff) deny that the thing in question belongs to his adversary, except in one case only, as to which all requisite information can be gathered from the fuller books of the Digest. 3. The actions which have hitherto been mentioned, and others which resemble them, are either of statutory origin, or at any rate belong to the civil law. There are other actions, however, both real and personal, which the praetor has introduced in virtue of his jurisdiction, and of which it is necessary to give examples. For instance, he will usually, under the circumstances to be mentioned, allow a real action to be brought with a fictitious allegation – namely, that the plaintiff has acquired a title by usucapion where this, in fact, is not the case; or, conversely, he will allow a fictitious plea on the part of the defendant, to the effect that the plaintiff has not acquired such a title where, in point of fact, he has. 4. Thus, if possession of some object be delivered on a ground sufficient to legally transfer the same – for instance, under a sale or gift, as part of a dowry, or as a legacy – and the transferee has not yet acquired a complete title by usucapion, he has no direct real action for its recovery, if he accidentally loses possession, because by the civil law a real action lies at the suit of the owner only. But as it seemed hard that in such a case there should be no remedy, the praetor introduced an action in which the plaintiff, who has lost possession, fictitiously allege that he has acquired a full title by usucapion, and thus claims the thing as his own. This is called the Publician action, because it was first placed in the Edict by a praetor called Publicius. 5. Conversely, if a person, while absent in the service of the State, or while in the power of an enemy, acquires by usucapion property belonging to some one resident at home, the latter is allowed, within a year from the cessation of the possessor’s public employment, to sue for a recovery of the property by a rescission of the usucapion: by fictitiously alleging, in other words, that the defendant has not thus acquired it; and the praetor from motives of equity allows this kind of action to be brought in certain other cases, as to which information may be gathered from the larger work of the Digest or Pandects. 6. Similarly, if a person conveys away his property in fraud of creditors, the latter, on obtaining from the governor of the province a decree vesting in them possession of the debtor’s estate, are allowed to avoid the conveyance, and sue for the recovery of the property; in other words, to allege that the conveyance has never taken place, and that the property consequently still belongs to the debtor. 7. Again, the Servian and quasi-Servian actions, the latter of which is also called "hypothecary," are derived merely from the praetor’s jurisdiction. The Servian action is that by which a landlord sues for his tenant’s property, over which he has a right in the nature of mortgage as security for his rent; the quasi-Servian is a similar remedy, open to every pledgee or hypothecary creditor. So far then as this action is concerned, there is no difference between a pledge and a hypothec: and indeed whenever a debtor and a creditor agree that certain property of the former shall be the latter’s security for his debt, the transaction is called a pledge or a hypothec indifferently. In other points, however, there is a distinction between them; for the term "pledge" is properly used only where possession of the property in question is delivered to the creditor, especially if that property be movable: while a hypothec is, strictly speaking, such a right created by mere agreement without delivery of possession. 8. Besides these, there are also personal actions which the praetor has introduced in virtue of his jurisdiction, for instance, that brought to enforce payment of money already owed, and the action on a banker’s acceptance, which closely resembled it. By our constitution, however, the first of these actions has been endowed with all the advantages which belonged to the second, and the latter, as superfluous, has therefore been deprived of all force and expunged from our legislation. To the praetor is due also the action claiming an account of the peculium of a slave or child in power, that in which the issue is whether a plaintiff has made oath, and many others. 9. The action brought to enforce payment of money already owed is the proper remedy against a person who, by a mere promise, without stipulation, has engaged to discharge a debt due either from himself or from some third party. If he has promised by stipulation, he is liable by the civil law. 10. The action claiming an account of a peculium is a remedy introduced by the praetor against a master or a father. By strict law, such persons incur no liability on the contracts of their slaves or children in power; yet it is only equitable that damages should still be recoverable against them to the extent of the peculium, in which children in power and slaves have a sort of property. 11. Again, if a plaintiff, on being challenged by the defendant, deposes on oath that the latter owes him the money which is the object of the action, and payment is not made to him, the praetor most justly grants to him an action in which the issue is, not whether the money is owing, but whether the plaintiff has sworn to the debt. 12. There is also a considerable number of penal actions which the praetor has introduced in the exercise of his jurisdiction; for instance, against those who in any way injure or deface his album; or who summon a parent or patron without magisterial sanction; or who violently rescue persons summoned before himself, or who compass such a rescue; and others innumerable. 13. "Prejudicial" actions would seem to be real, and may be exemplified by those in which it is inquired whether a man is free born, or has become free by manumission, or in which the question relates to a child’s paternity. Of these the first alone belongs to the civil law: the others are derived from the praetor’s jurisdiction. 14. The kinds of action having been thus distinguished, it is clear that a plaintiff cannot demand his property from another in the form "if it be proved that the defendant is bound to convey." It cannot be said that what already belongs to the plaintiff ought to be conveyed to him, for conveyance transfers ownership, and what is his cannot be made more his than it is already. Yet for the prevention of theft, and multiplication of remedies against the thief, it has been provided that, besides the penalty of twice or four times the value of the property stolen, the property itself, or its value, may be recovered from the thief by a personal action in the form "if it be proved that the defendant ought to convey," as an alternative for the real action which is also available to the plaintiff, and in which he asserts his ownership of the stolen property. 15. We call a real action a "vindication," and a personal action, in which the contention is that some property should be conveyed to us, or some service performed for us, a "condiction," this term being derived from condicere, which has an old meaning of "giving notice." To call a personal action, in which the plaintiff contends that the defendant ought to convey to him, a condiction, is in reality an abuse of the term, for nowadays there is no such notice as was given in the old action of that name. 16. Actions may be divided into those which are purely reparative, those which are purely penal, and those which are mixed, or partly reparative, partly penal. 17. All real actions are purely reparative. Of personal actions those which spring from contract are nearly all of the same character; for instance, the actions on loans of money, or stipulations, on loans for use, on deposit, agency, partnership, sale, and hire. If, however, the action be on a deposit occasioned by a riot, a fire, the fall of a building, or a shipwreck, the praetor enables the depositor to recover double damages, provided he sues the bailee in person; he cannot recover double damages from the bailee’s heir, unless he can prove personal fraud against the latter. In these two cases the action, though on contract, is mixed. 18. Actions arising from delict are sometimes purely penal, sometimes are partly penal and partly reparative, and consequently mixed. The sole object of the action of theft is the recovery of a penalty, whether that penalty be four times the value of the property stolen, as in theft detected in the commission, or only twice that value, as in simple theft. The property itself is recoverable by an independent action in which the person from whom it has been stolen claims it as his own, whether it be in the possession of the thief himself or of some third person; and against the thief himself he may even bring a condiction, to recover the property or its value. 19. The action on robbery is mixed, for the damages recoverable thereunder are four times the value of the property taken, three-fourths being pure penalty, and the remaining fourth compensation for the loss which the plaintiff has sustained. So too the action on unlawful damage under the lex Aquilia is mixed, not only where the defendant denies his liability, and so is sued for double damages, but also sometimes where the claim is for simple damages only; as where a lame or one-eyed slave is killed, who within the year previous was sound and of large value; in which case the defendant is condemned to pay his greatest value within the year, according to the distinction which has been drawn above. Persons too who are under an obligation as heirs to pay legacies or trust bequests to our holy churches or other venerable places, and neglect to do so until sued by the legatee, are liable to a mixed action, by which they are compelled to give the thing or pay the money left by the deceased, and, in addition, an equivalent thing or sum as penalty, the condemnation being thus in twice the value of the original claim. 20. Some actions are mixed in a different sense, being partly real, partly personal. They are exemplified by the action for the division of a "family," by which one of two or more joint heirs can enforce against the other or rest a partition of the inheritance, and by the actions for the division of common property, and for rectification of boundaries between adjoining landed proprietors. In these three actions the judge has power, according as shall to him seem fair and equitable, to adjudge any part of the joint property, or of the land in dispute, to any one of the parties, and to order any one of them who seems to have an undue advantage in the partition or rectification to pay a certain sum of money to the other or the rest as compensation. 21. The damages recoverable in an action may be either once, twice, three, or four times the value of the plaintiff’s original interest; there is no action by which more than fourfold damages can be claimed. 22. Single damages only are recoverable in the actions on stipulation, loan for consumption, sale, hire, agency, and many others besides. 23. Actions claiming double damages are exemplified by those on simple theft, on unlawful damage under the lex Aquilia, on certain kinds of deposit, and for corruption of a slave, which lies against any one by whose instigation and advice another man’s slave runs away, or becomes disobedient to his master, or takes to dissolute habits, or becomes worse in any way whatsoever, and in which the value of property which the runaway slave has carried off is taken into account. Finally, as we remarked above, the action for the recovery of legacies left to places of religion is of this character. 24. An action for triple damages is grounded when a plaintiff makes an overstatement of his claim in the writ of summons, in consequence of which the officers of the court take too large a fee from the defendant. In such a case the latter will be able to recover from the plaintiff three times the loss which he sustains by the overcharge, including in these damages simple compensation for the sum paid in excess of the proper fee. This is provided by a distinguished constitution in our Code, under which a statutory condiction clearly lies for the damages in question. 25. Quadruple damages are recoverable by the action on theft detected in the commission, by the action on intimidation, and by the action grounded on the giving of money in order to induce one man to bring a vexatious suit against another, or to desist from a suit when brought. Under our constitution too a statutory condiction lies for the recovery of fourfold damages from officers of the court, who exact money from defendants in excess of its provisions. 26. There is this difference between the actions on simple theft and for the corruption of a slave, and the other of which we spoke in connexion with them, that by the two former double damages are recoverable under any circumstances; the latter, namely the action on unlawful damage under the lex Aquilia, and that on certain kinds of deposit, entail double damages on the defendant only if he denies his liability; if he admits it, simple damages alone can be recovered. The damages are double under an action for recovery of legacies left to religious places not only when the liability is denied, but also when the defendant delays payment until sued by the order of a magistrate; if he admits his liability, and pays before being so sued, he cannot be compelled to pay more than the original debt. 27. The action on intimidation also differs from the others which we mentioned in the same connexion, in that it contains in its very nature an implied condition that the defendant is entitled to acquittal if, on being so ordered by the judge, he restores to the plaintiff the property of which the latter has been deprived. In other actions of the same class this is not so; for instance, in the action on theft detected in the commission, the defendant has under any circumstances to pay fourfold damages. 28. Again, some actions are equitable, others are actions of strict law. To the former class belong the actions on sale, hire, unauthorized agency, agency proper, deposit, partnership, guardianship, loan for use, mortgage, division of a "family," partition of joint property, those on the innominate contracts of sale by commission and exchange, and the suit for recovery of an inheritance. Until quite recently it was a moot point whether the last-named was properly an equitable action, but our constitution has definitely decided the question in the affirmative. 29. Formerly too the action for the recovery of a dowry was an equitable action: but as we found that the action on stipulation was more convenient, we have, while establishing many distinctions, attached all the advantages which the former remedy possessed to the action on stipulation, when employed for the recovery of a dowry. The former action being thus by a judicious reform abolished, that on stipulation, by which it has been replaced, has deservedly been invested with all the characteristics of an equitable action, so far as and whenever it is brought for the recovery of a dowry. We have also given persons entitled to sue for such recovery a tacit hypothec over the husband’s property, but this right is not to give any priority over other hypothecary creditors except where it is the wife herself who sues to recover her dowry; it being in her interest only that we have made this new provision. 30. In equitable actions the judge has full power to assess on good and fair grounds the amount due to the plaintiff, and in so doing to take into account counterclaims of the defendant, condemning the latter only in the balance. Even in actions of strict law counterclaims have been permitted since a rescript of the Emperor Marcus, the defendant meeting the plaintiff’s claim by a plea of fraud. By our constitution, however, a wider field has been given to the principle of set-off, when the counterclaim is clearly established, the amount claimed in the plaintiff’s action, whether real or personal, or whatever its nature, being reduced by operation of law to the extent of the defendant’s counterclaim. The only exception to this rule is the action on deposit, against which we have deemed it no less than dishonest to allow any counterclaim to be set up; for if this were permitted persons might be fraudulently prevented from recovering property deposited under the pretence of a set-off. 31. There are some actions again which we call arbitrary, because their issue depends on an "arbitrium" or order of the judge. Here, unless on such order the defendant satisfies the plaintiff’s claim by restoring or producing the property, or by performing his obligation, or in a noxal action by surrendering the guilty slave, he ought to be condemned. Some of such actions are real, others personal. The former are exemplified by the Publician action, the Servian action for the recovery of a tenant farmer’s stock, and the quasi-Servian or so-called hypothecary action; the latter by the actions on intimidation and on fraud, by that for the recovery of a thing promised at a particular place, and by the action claiming production of property. In all these actions, and others of a similar nature, the judge has full power to determine on good and just grounds, according to the circumstances of each particular case, the form in which reparation ought to be made to the plaintiff. 32. It is the judge’s duty, in delivering judgement, to make his award as definite as possible, whether it relate to the payment of money or the delivery of property, and this even when the plaintiff’s claim is altogether unliquidated. 33. Formerly, if the plaintiff, in his statement of claim, demanded more than he was entitled to, his case fell to the ground, that is, he lost even that which was his due, and in such cases the praetor usually declined to restore him to his previous position, unless he was a minor; for in this matter too the general rule was observed of giving relief to minors after inquiry made, if it were proved that they had made an error owing to their lack of years. If, however, the mistake was entirely justifiable, and such as to have possibly misled even the discreetest of men, relief was afforded even to persons of full age, as in the case of a man who sues for the whole of a legacy, of which part is found to have been taken away by codicils subsequently discovered; or where such subsequently discovered codicils give legacies to other persons, so that, the total amount given in legacies being reduced under the lex Falcidia, the first legatee is found to have claimed more than the three-fourths allowed by that statute. Over-statement of claim takes four forms; that is, it may relate either to the object, the time, the place, or the specification. A plaintiff makes an over-claim in the object when, for instance, he sues for twenty aurei while only ten are owing to him, or when, being only part owner of property, he sues to recover the whole or a greater portion of it than he is entitled to. Over-claim in respect of time occurs when a man sues for money before the day fixed for payment, or before the fulfillment of a condition on which payment was dependent; for exactly as one who pays money only after it falls due is held to pay less than his just debt, so one who makes his demand prematurely is held to make an over-claim. Over-claim in respect of place is exemplified by a man suing at one place for performance of a promise which it was expressly agreed was to be performed at another, without any reference, in his claim, to the latter: as, for instance, if a man, after stipulating thus, "Do you promise to pay at Ephesus?" were to claim the money as due at Rome, without any addition as to Ephesus. This is an over-claim, because by alleging that the money is due at Rome simply, the plaintiff deprives his debtor of the advantage he might have derived from paying at Ephesus. On this account an arbitrary action is given to a plaintiff who sues at a place other than that agreed upon for payment, in which the advantage which the debtor might have had in paying at the latter is taken into consideration, and which usually is greatest in connexion with commodities which vary in price from district to district, such as wine, oil, or grain; indeed even the interest on loans of money is different in different places. If, however, a plaintiff sues at Ephesus – that is, in our example, at the place agreed upon for the payment – he need do no more than simply allege the debt, as the praetor too points out, because the debtor has all the advantage which payment in that particular place gives him. Over-claim in respect of specification closely resembles over-claim in respect of place, and may be exemplified by a man’s stipulating from you "do you promise to convey Stichus or ten aurei?" and then suing for the one or the other – that is to say, either for the slave only, or for the money only. The reason why this is an over-claim is that in stipulations of this sort it is the promisor who has the election, and who may give the slave or the money, whichever he prefers; consequently if the promisee sues, alleging that either the money alone, or the slave alone, ought to be conveyed to him, he deprives his adversary of his election, and thereby puts him in a worse position, while he himself acquires an undue advantage. Other cases of this form of over-claim occur where a man, having stipulated in general terms for a slave, for wine, or for purple, sues for the particular slave Stichus, or for the particular wine of Campania, or for Tyrian purple; for in all of these instances he deprives his adversary of his election, who was entitled, under the terms of the stipulation, to discharge his obligation in a mode other than that which is required of him. And even though the specific thing for which the promisee sues be of little or no value, it is still an over-claim: for it is often easier for a debtor to pay what is of greater value than what is actually demanded of him. Such were the rules of the older law, which, however, has been made more liberal by our own and Zeno’s statutes. Where the over-claim relates to time, the constitution of Zeno prescribes the proper procedure; if it relates to quantity, or assumes any other form, the plaintiff, as we have remarked above, is to be condemned in a sum equivalent to three times any loss which the defendant may have sustained thereby. 34. If the plaintiff in his statement of claim demands less than is his due, as for instance by alleging a debt of five aurei, when in fact he is owed ten, or by claiming only half of an estate the whole of which really belongs to him, he runs no risk thereby, for, by the constitution of Zeno of sacred memory, the judge will in the same action condemn the defendant in the residue as well as in the amount actually claimed. 35. If he demands the wrong thing in his statement of claim, the rule is that he runs no risk; for if he discovers his mistake, we allow him to set it right in the same action. For instance, a plaintiff who is entitled to the slave Stichus may claim Eros; or he may allege that he is entitled to a conveyance under a will, when his right is founded in reality upon a stipulation. 36. There are again some actions in which we do not always recover the whole of what is due to us, but in which we some- times get the whole, sometimes only part. For instance, if the fund to which our claim looks for satisfaction be the peculium of a son in power or a slave, and it is sufficient in amount to meet that claim, the father or master is condemned to pay the whole debt; but if it is not sufficient, the judge condemns him to pay only so far as it will go. Of the mode of ascertaining the amount of a peculium we will speak in its proper place. 37. So too if a woman sues for the recovery of her dowry, the rule is that the husband is to be condemned to restore it only so far as he is able, that is, so far as his means permit. Accordingly, if his means will enable him to restore the dowry in full, he will be condemned to do so; if not, he will be condemned to pay only so much as he is able. The amount of the wife’s claim is also usually lessened by the husband’s right of retaining some portion for himself, which he may do to the extent of any outlay he has made on dowry property, according to the rule, stated in the larger work of the Digest, that a dowry is diminished by operation of law to the extent of all necessary outlay thereon. 38. Again, if a man goes to law with his parent or patron, or if one partner brings an action of partnership against another, he cannot get judgement for more than his adversary is able to pay. The rule is the same when a man is sued on a mere promise to give a present. 39. Very often too a plaintiff obtains judgement for less than he was owed through the defendant’s pleading a set-off: for, as has already been observed, the judge, acting on equitable principles, would in such a case take into account the cross demand in the same transaction of the defendant, and condemn him only in the residue. 40. So too if an insolvent person, who surrenders all his effects to his creditors, acquires fresh property of sufficient amount to justify such a step, his creditors may sue him afresh, and compel him to satisfy the residue of their claims so far as he is able, but not to give up all that he has; for it would be inhuman to condemn a man to pay his debts in full who has already been once deprived of all his means. |
As we have already mentioned the action in respect of the peculium
of children in power and slaves, we must now explain it more fully,
and with it the other actions by which fathers and masters are sued
for the debts of their sons or slaves. Whether the contract be made
with a slave or with a child in power, the rules to be applied are much
the same; and therefore, to make our statements as short as possible,
we will speak only of slaves and masters, premising that what we say
of them is true also of children and the parents in whose power they
are; where the treatment of the latter differs from that of the former,
we will point out the divergence. 1. If a slave enters into a contract at the bidding of his master, the praetor allows the latter to be sued for the whole amount: for it is on his credit that the other party relies in making the contract. 2. On the same principle the praetor grants two other actions, in which the whole amount due may be sued for; that called exercitoria, to recover the debt of a ship-master, and that called institoria, to recover the debt of a manager or factor. The former lies against a master who has appointed a slave to be captain of a ship, to recover a debt incurred by the slave in his character of captain, and it is called exercitoria, because the person to whom the daily profits of a ship belong is termed an exercitor. The latter lies against a man who has appointed a slave to manage a shop or business, to recover any debt incurred in that business; it is called institoria, because a person appointed to manage a business is termed an institor. And these actions are granted by the praetor even if the person whom one sets over a ship, a shop, or any other business, be a free man or another man’s slave, because equity requires their application in these latter cases no less than in the former. 3. Another action of the praetor’s introduction is that called tributoria. If a slave, with the knowledge of his master, devotes his peculium to a trade or business, the rule which the praetor follows, in respect of contracts made in the course of such trade or business, is that the peculium so invested and its profits shall be divided between the master, if anything is due to him, and the other creditors in the ratio of their claims. The distribution of these assets is left to the master, subject to this provision, that any creditor who complains of having received less than his proper share can bring this action against him for an account. 4. There is also an action in respect of peculium and of what has been converted to the uses of the master, under which, if a debt has been contracted by a slave without the consent of his master, and some portion thereof has been converted to his uses, he is liable to that extent, while if no portion has been so converted, he is liable to the extent of the slave’s peculium. Conversion to his uses is any necessary expenditure on his account, as repayment to his creditors of money borrowed, repair of his falling house, purchase of corn for his slaves, or of an estate for him, or any other necessary. Thus, if out of ten aurei which your slave borrows from Titius, he pays your creditor five, and spends the remainder in some other way, you are liable for the whole of the five, and for the remainder to the extent of the peculium: and from this it is clear that if the whole ten were applied to your uses Titius could recover the whole from you. Thus, though it is but a single action which is brought in respect of peculium and of conversion to uses, it has two condemnatory clauses. The judge by whom the action is tried first looks to see whether there has been any application to the uses of the master, and does not proceed to ascertain the amount of the peculium unless there has been no such application, or a partial application only. In ascertaining the amount of the peculium deduction is first made of what is owed to the master or any person in his power, and the residue only is treated as peculium; though sometimes what a slave owes to a person in his master’s power is not deducted, for instance, where that person is another slave who himself belongs to the peculium; thus, where a slave owes a debt to his own vicarial slave, its amount is not deducted from the peculium. 5. There is no doubt that a person with whom a slave enters into a contract at the bidding of his master, or who can sue by the actions exercitoria or institoria, may in lieu thereof bring an action in respect of the peculium and of conversion to uses; but it would be most foolish of him to relinquish an action by which he may with the greatest ease recover the whole of what is owing to him under the contract, and undertake the trouble of proving a conversion to uses, or the existence of a peculium sufficient in amount to cover the whole of the debt. So too a plaintiff who can sue by the action called tributoria may sue in respect of peculium and conversion to uses, and sometimes the one action is the more advisable, sometimes the other. The former has this advantage, that in it the master has no priority; there is no deduction of debts owing to him, but he and the other creditors stand on precisely the same footing; while in the action in respect of peculium deduction is first made of debts owing to the master, who is condemned to pay over to the creditors only what then remains. On the other hand, the advantage of the action in respect of peculium is that in it the slave’s whole peculium is liable to his creditors, whereas in the action called tributoria only so much of it is liable as is invested in the trade or business; and this may be only a third, a fourth, or even a less fraction, because the slave may have the rest invested in land or slaves, or out on loan. A creditor ought therefore to select the one or the other action by considering their respective advantages in each particular case; though he certainly ought to choose that in respect of conversion to uses, if he can prove such conversion. 6. What we have said of the liability of a master on the contracts of his slave is equally applicable where the contract is made by a child or grandchild in the power of his or her father or grandfather. 7. A special enactment in favour of children in power is found in the senatusconsult of Macedo, which has prohibited the giving of loans of money to such persons, and refused an action to the lender both against the child, whether he be still in power, or has become independent by death of the ancestor or emancipation, and against the parent, whether he still retains the child in his power, or has emancipated him. This enactment was made by the Senate because it was found that persons in power, when dragged down by the burden of loans which they had squandered in profligacy, often plotted against the lives of their parents. 8. Finally, it should be observed that where a contract has been entered into by a slave or son in power at his master’s or parent’s bidding, or where there has been a conversion to his uses, a condiction may be brought directly against the parent or master, exactly as if he had been the original contracting party in person. So too, wherever a man is suable by either of the actions called exercitoria and institoria, he may, in lieu thereof, be sued directly by a condiction, because in effect the contract in such cases is made at his bidding. |
Where a delict, such as theft, robbery, unlawful damages,
or outrage, is committed by a slave, a noxal action lies against the
master, who on being condemned has the option of paying the damages
awarded, or surrendering the slave in satisfaction of the injury. 1. The wrongdoer, that is, the slave, is called "noxa"; "noxia" is the term applied to the wrong itself, that is, the theft, damage, robbery, or outrage. 2. This principle of noxal surrender in lieu of paying damages awarded is based on most excellent reason, for it would be unjust that the misdeed of a slave should involve his master in any detriment beyond the loss of his body. 3. If a master is sued by a noxal action on the ground of his slave’s delict, he is released from all liability by surrendering the slave in satisfaction of the wrong, and by this surrender his right of ownership is permanently transferred; though if the slave can procure enough money to compensate the surrenderee in full for the wrong he did him, he can, by applying to the praetor, get himself manumitted even against the will of his new master. 4. Noxal actions were introduced partly by statute, partly by the Edict of the praetor; for theft, by the statute of the Twelve Tables; for unlawful damages, by the lex Aquilia; for outrage and robbery, by the Edict. 5. Noxal actions always follow the person of the wrongdoer. Thus, if your slave does a wrong while in your power, an action lies against you; if he becomes the property of some other person, that other is the proper person to be sued; and if he is manumitted, he becomes directly and personally liable, and the noxal action is extinguished. Conversely, a direct action may change into noxal; thus, in an independent person has done a wrong, and then becomes your slave (as he may in several ways described in the first Book), a noxal action lies against you in lieu of the direct action which previously lay against the wrongdoer in person. 6. But no action lies for an offence committed by a slave against his master, for between a master and a slave in his power there can be no obligation; consequently, if the slave becomes the property of some other person, or is manumitted, neither he nor his new master can be sued; and on the same principle, if another man’s slave commits a wrong against you, and then becomes your property, the action is extinguished, because it has come into a condition in which an action cannot exist; the result being that even if the slave passes again out of your power you cannot sue. Similarly, if a master commits a wrong against his slave, the latter cannot sue him after manumission or alienation. 7. These rules were applied by the ancients to wrongs committed by children in power no less than by slaves; but the feeling of modern times has rightly rebelled against such inhumanity, and noxal surrender of children under power has quite gone out of use. Who could endure in this way to give up a son, still more a daughter, to another, whereby the father would be exposed to greater anguish in the person of a son than even the latter himself, while mere decency forbids such treatment in the case of a daughter? Accordingly, such noxal actions are permitted only where the wrongdoer is a slave, and indeed we find it often laid down by old legal writers that sons in power may be sued personally for their own delicts. |
A noxal action was granted by the statute of the Twelve Tables
in cases of mischief done through wantonness, passion, or ferocity,
by irrational animals; it being by an enactment of that statute provided,
that if the owner of such an animal is ready to surrender it as compensation
for the damage, he shall thereby be released from all liability. Examples
of the application of this enactment may be found in kicking by a horse,
or goring by a bull, known to be given that way; but the action does
not lie unless in causing the damage the animal is acting contrary to
its natural disposition; if its nature be to be savage, this remedy
is not available. Thus, if a bear runs away from its owner, and causes
damage, the quondam owner cannot be sued, for immediately with its escape
his ownership ceased to exist. The term pauperies, or "mischief,"
is used to denote damage done without there being any wrong in the doer
of it, for an unreasoning animal cannot be said to have done a wrong.
Thus far as to the noxal action. 1. It is, however, to be observed that the Edict of the aedile forbids dogs, boars, bears, or lions to be kept near where there is a public road, and directs that if any injury be caused to a free man through disobedience of this provision, the owner of the beast shall be condemned to pay such sum as to the judge shall seem fair and equitable: in case of any other injury the penalty is fixed at double damages. Besides this aedilician action, that on pauperies may also be sometimes brought against the same defendant; for when two or more actions, especially penal ones, may be brought on one and the same ground, the bringing of one does not debar the plaintiff from subsequently bringing the other. |
We must now remark that a man may sue either for himself, or for
another as attorney, guardian, or curator: whereas formerly one man
could not sue for another except in public suits, as an assertor of
freedom, and in certain actions relating to guardianship. The lex Hostilia
subsequently permitted the bringing of an action of theft on behalf
of persons who were in the hands of an enemy, or absent on State employment,
and their pupils. It was, however, found extremely inconvenient to be
unable to either bring or defend an action on behalf of another, and
accordingly men began to employ attorneys for this purpose; for people
are often hindered by ill-health, age, unavoidable absence, and many
other causes from attending to their own business. 1. For the appointment of an attorney no set form of words is necessary, nor need it be made in the presence of the other party, who indeed usually knows nothing about it; for in law any one is your attorney whom you allow to bring or defend an action on your behalf. 2. The modes of appointing guardians and curators have been explained in the first Book. |
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 also 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 by his principal; and the rule is the same if a guardian, curator, or other person who has undertaken the management of another’s affairs begins an action through an attorney. 4. If a defendant appears, and is ready to appoint an attorney to defend the action for him, he can do this either by coming personally into court, and confirming the appointment by the solemn stipulations employed when security is given for satisfaction of judgement, or by giving security out of court whereby, as surety for his attorney, he guarantees the observance of all the clauses of the so-called security for satisfaction of judgement. In all such cases, he is obliged to give a right of hypothec over all his property, whether the security be given in or out of court, and this right avails against his heirs no less than against himself. Finally, he has to enter into a personal engagement or recognizance to appear in court when judgement is delivered; and in default of such appearance his surety will have to pay all the damages to which he is condemned, unless notice of appeal is given. 5. If, however, the defendant for some reason or other does not appear, and another will defend for him, he may do so, and it is immaterial whether the action be real or personal, provided he will give security for satisfaction of the judgement in full; for we have already mentioned the old rule, that no one is allowed to defend another without security. 6. All this will appear more clearly and fully by reference to the daily practice of the courts, and to actual cases of litigation: 7. and it is our pleasure that these rules shall hold not only in this our royal city, but also in all our provinces, although it may be that through ignorance the practice elsewhere was different: for it is necessary that the provinces generally shall follow the lead of the capital of our empire, that is, of this royal city, and observe its usages. |
It should be here observed that actions founded on statutes, senatusconsults,
and imperial constitutions could be brought at any length of time from
the accrual of the cause of action, until certain limits were fixed
for actions both real and personal by imperial enactments; while actions
which were introduced by the praetor in the exercise of his jurisdiction
could, as a rule, be brought only within a year, that being the duration
of his authority. Some praetorian actions, however, are perpetual, that
is to say, can be brought at any time which does not exceed the limit
fixed by the enactments referred to; for instance, those granted to
"possessors of goods" and other persons who are fictitiously
represented as heirs. So, too, the action for theft detected in the
commission, though praetorian, is perpetual, the praetor having judged
it absurd to limit it by a year. 1. Actions which will lie against a man under either the civil or the praetorian law will not always lie against his heir, the rule being absolute that for delict – for instance, theft, robbery, outrage, or unlawful damage – no penal action can be brought against the heir. The heir of the person wronged, however, may bring these actions, except in outrage, and similar cases, if any. Sometimes, even an action on contract cannot be brought against the heir; this being the case where the testator has been guilty of fraud, and his heir has not profited thereby. If, however, a penal action, such as those we have mentioned, has been actually commenced by the original parties, it is transmitted to the heirs of each. 2. Finally, it must be remarked that if, before judgement is pronounced, the defendant satisfies the plaintiff, the judges ought to absolve him, even though he was liable to condemnation at the time when the action was commenced; this being the meaning of the old dictum, that all actions involve the power of absolution. |
We have next to examine the nature of exceptions. Exceptions are
intended for the protection of the defendant, who is often in this position,
that though the plaintiff’s case is a good one in the abstract, yet
as against him, the particular defendant, his contention is inequitable. 1. For instance, if you are induced by duress, fraud, or mistake to promise Titius by stipulation what you did not owe him, it is clear that by the civil law you are bound, and that the action on your promise is well grounded; yet it is inequitable that you should be condemned, and therefore in order to defeat the action you are allowed to plead the exception of duress, or of fraud, or one framed to suit the circumstances of the cases. 2. So too, if, as a preliminary to an advance of money, one stipulates from you for its repayment, and then never advances it after all, it is clear that he can sue you for the money, and you are bound by your promise to give it; but it would be iniquitous that you should be compelled to fulfil such an engagement, and therefore you are permitted to defend yourself by the exception that the money, in point of fact, was never advanced. The time within which this exception can be pleaded, as we remarked in a former Book, has been shortened by our constitution. 3. Again, if a creditor agrees with his debtor not to sue for a debt, the latter still remains bound, because an obligation cannot be extinguished by a bare agreement; accordingly, the creditor can validly bring against him a personal action claiming payment of the debt, though, as it would be inequitable that he should be condemned in the face of the agreement not to sue, he may defend himself by pleading such agreement in the form of an exception. 4. Similarly, if at his creditor’s challenge a debtor affirms on oath that he is not under an obligation to convey, he still remains bound; but as it would be unfair to examine whether he has perjured himself, he can, on being sued, set up the defence that he has sworn to the non-existence of the debt. In real actions, too, exceptions are equally necessary; thus, if on the plaintiff’s challenge the defendant swears that the property is his, there is nothing to prevent the former from persisting in his action; but it would be unfair to condemn the defendant, even though the plaintiff’s contention that the property is his be well founded. 5. Again, an obligation still subsists even after judgement in an action, real or personal, in which you have been defendnt, so that in strict law you may be sued again on the same ground of action; but you can effectually meet the claim by pleading the previous judgement. 6. These examples will have been sufficient to illustrate our meaning; the multitude and variety of the cases in which exceptions are necessary may be learnt by reference to the larger work of the Digest or Pandects. 7. Some exceptions derive their force from statutes or enactments equivalent to statutes, others from the jurisdiction of the praetor; 8. and some are said to be perpetual or peremptory, others to be temporary or dilatory. 9. Perpetual or peremptory exceptions are obstructions of unlimited duration, which practically destroy the plaintiff’s ground of action, such as the exceptions of fraud, intimidation, and agreement never to sue. 10. Temporary or dilatory exceptions are merely temporary obstructions, their only effect being to postpone for a while the plaintiff’s right to sue; for example, the plea of an agreement not to sue for a certain time, say, five years; for at the end of that time the plaintiff can effectually pursue his remedy. Consequently persons who would like to sue before the expiration of the time, but are prevented by the plea of an agreement to the contrary, or something similar, ought to postpone their action till the time specified has elapsed; and it is on this account that such exceptions are called dilatory. If a plaintiff brought his action before the time had expired, and was met by the exception, this would debar him from all success in those proceedings, and formerly he was unable to sue again, owing to his having rashly brought the matter into court, whereby he consumed his right of action, and lost all chance of recovering what was his due. Such unbending rules, however, we do not at the present day approve. Plaintiffs who venture to commence an action before the time agreed upon, or before the obligation is yet actionable, we subject to the constitution of Zeno, which that most sacred legislator enacted as to over-claims in respect of time; whereby, if the plaintiff does not observe the stay which he has voluntarily granted, or which is implied in the very nature of the action, the time during which he ought to have postponed his action shall be doubled, and at its termination the defendant shall not be suable until he has been reimbursed for all expenses hitherto incurred. So heavy a penalty it is hoped will induce plaintiffs in no case to sue until they are entitled. 11. Moreover, some personal incapacities produce dilatory exceptions, such as those relating to agency, supposing that a party wishes to be represented in an action by a soldier or a woman; for soldiers may not act as attorneys in litigation even on behalf of such near relatives as a father, mother, or wife, not even in virtue of an imperial rescript, though they may attend to their own affairs without committing a breach of discipline. We have sanctioned the abolition of those exceptions, by which the appointment of an attorney was formerly opposed on account of the infamy of either attorney or principal, because we found that they no longer were met with in actual practice, and to prevent the trial of the real issue being delayed by disputes as to their admissibility and operation. |
Sometimes an exception, which prima facie seems just to
the defendant, is unjust to the plaintiff, in which case the latter
must protect himself by another allegation called a replication, because
it parries and counteracts the force of the exception. For example,
a creditor may have agreed with his debtor not to sue him for money
due, and then have subsequently agreed with him that he shall be at
liberty to do so; here if the creditor sues, and the debtor pleads that
he ought not to be condemned on proof being given of the agreement not
to sue, he bars the creditor’s claim, for the plea is true, and remains
so in spite of the subsequent agreement; but as it would be unjust that
the creditor should be prevented from recovering, he will be allowed
to plead a replication, based upon that agreement. 1. Sometimes again a replication, though prima facie just, is unjust to the defendant; in which case he must protect himself by another allegation called a rejoinder: 2. and if this again, though on the face of it just, is for some reason unjust to the plaintiff, a still further allegation is necessary for his protection, which is called a surrejoinder. 3. And sometimes even further additions are required by the multiplicity of circumstances under which dispositions are made, or by which they are subsequently affected; as to which fuller information may easily be gathered from the larger work of the Digest. 4. Exceptions which are open to a defendant are usually open to his surety as well, as indeed is only fair: for when a surety is sued the principal debtor may be regarded as the real defendant, because he can be compelled by the action on agency to repay the surety whatsoever he has disbursed on his account. Accordingly, if the creditor agrees with his debtor not to sue, the latter’s sureties may plead this agreement, if sued themselves, exactly as if the agreement had been made with them instead of with the principal debtor. There are, however, some exceptions which, though pleadable by a principal debtor, are not pleadable by his surety; for instance, if a man surrenders his property to his creditors as an insolvent, and one of them sues him for his debt in full, he can effectually protect himself by pleading the surrender; but this cannot be done by his surety, because the creditor’s main object, in accepting a surety for his debtor, is to be able to have recourse to the surety for the satisfaction of his claim if the debtor himself becomes insolvent. |
We have next to treat of interdicts or of the actions
by which they have been superseded. Interdicts were formulae by which
the praetor either ordered or forbad some thing to be done, and occurred
most frequently in case of litigation about possession or quasi-possession. 1. The first division of interdicts is into orders of abstention, of restitution, and of production. The first are those by which the praetor forbids the doing of some act – for instance, the violent ejection of a bona fide possessor, forcible interference with the internment of a corpse in a place where that may lawfully be done, building upon sacred ground, or the doing of anything in a public river or on its banks which may impede its navigation. The second are those by which he orders restitution of property, as where he directs possession to be restored to a "possessor of goods" of things belonging to an inheritance, and which have hitherto been in the possession of others under the title of heir, or without any title at all; or where he orders a person to be reinstated in possession of land from which he has been forcibly ousted. The third are those by which he orders the production of persons or property; for instance, the production of a person whose freedom is in question, of a freedman whose patron wishes to demand from him certain services, or of children on the application of the parent in whose power they are. Some think that the term interdict is properly applied only to orders of abstention, because it is derived from the verb interdicere, meaning to denounce or forbid, and that orders of restitution or production are properly termed decrees; but in practice they are all called interdicts, because they are given inter duos, between two parties. 2. The next division is into interdicts for obtaining possession, for retaining possession, and for recovering possession. 3. Interdicts for obtaining possession are exemplified by the one given to a "possessor of goods," which is called Quorum bonorum, and which enjoins that whatever portion of the goods, whereof possession has been granted to the claimant, is in the hands of one who holds by the title of heir or as mere possessor only, shall be delivered up to the grantee of possession. A person is deemed to hold by the title of heir who thinks he is an heir; he is deemed to hold as mere possessor who relies on no title at all, but holds a portion of the whole of the inheritance, knowing that he is not entitled. It is called an interdict for obtaining possession, because it is available only for initiating possession; accordingly, it is not granted to a person who has already had and lost possession. Another interdict for obtaining possession is that named after Salvius, by which the landlord gets possession of the tenant’s property which has been hypothecated as a security for rent. 4. The interdicts Uti possidetis and Utrubi are interdicts for retaining possession, and are employed when two parties claim ownership in anything, in order to determine which shall be defendant and which plaintiff; for no real action can be commenced until it is ascertained which of the parties is in possession, because law and reason both require that one of them shall be in possession and shall be sued by the other. As the role of defendant in a real action is far more advantageous than that of plaintiff, there is almost invariably a keen dispute as to which party is to have possession pending litigation: the advantage consisting in this, that, even if the person in possession has no title as owner, the possession remains to him unless and until the plaintiff can prove his own ownership: so that where the rights of the parties are not clear, judgement usually goes against the plaintiff. Where the dispute relates to the possession of land or buildings, the interdict called Uti possidetis is employed; where to movable property, that called Utrubi. Under the older law their effects were very different. In Uti possidetis the party in possession at the issue of the interdict was the winner, provided he had not obtained that possession from his adversary by force, or clandestinely, or by permission; whether he had obtained it from some one else in any of these modes was immaterial. In Utrubi the winner was the party who had been in possession the greater portion of the year next immediately preceding, provided that possession had not been obtained by force, or clandestinely, or by permission, from his adversary. At the present day, however, the practice is different, for as regards the right to immediate possession the two interdicts are now on the same footing; the rule being, that whether the property in question be movable or immovable, the possession is adjudged to the party who has it at the commencement of the action, provided he had not obtained it by force, or clandestinely, or by permission, from his adversary. 5. A man’s possession includes, besides his own personal possession, the possession of any one who holds in his name, though not subject to his power; for instance, his tenant. So also a depositary or borrower for use may possess for him, as is expressed by the saying that we retain possession by any one who holds in our name. Moreover, mere intention suffices for the retention of possession; so that although a man is not in actual possession either himself or through another, yet if it was not with the intention of abandoning the thing that he left it, but with that of subsequently returning to it, he is deemed not to have parted with the possession. Through what persons we can obtain possession has been explained in the second Book; and it is agreed on all hands that for obtaining possession intention alone does not suffice. 6. An interdict for recovering possession is granted to persons who have been forcibly ejected from land or buildings; their proper remedy being the interdict Unde vi, by which the ejector is compelled to restore possession, even though it had been originally obtained from him by the grantee of the interdict by force, clandestinely, or by permission. But by imperial constitutions, as we have already observed, if a man violently seizes on property to which he has a title, he forfeits his right of ownership; if on property which belongs to some one else, he has not only to restore it, but also to pay the person whom he has violently dispossessed a sum of money equivalent to its value. In cases of violent dispossession the wrongdoer is liable under the lex Iulia relating to private or public violence, by the former being meant unarmed force, by the latter dispossession effected with arms; and the term "arms" must be taken to include not only shields, swords, and helmets, but also sticks and stones. 7. Thirdly, interdicts are divided into simple and double. Simple interdicts are those wherein one party is plaintiff and the other defendant, as is always the case in orders of restitution or production; for he who demands restitution or production is plaintiff, and he from whom it is demanded is defendant. Of interdicts which order abstention some are simple, others double. The simple are exemplified by those wherein the praetor commands the defendant to abstain from desecrating consecrated ground, or from obstructing a public river or its banks; for he who demands such order is the plaintiff, and he who is attempting to do the act in question is defendant. Of double interdicts we have examples in Uti possidetis and Utrubi; they are called double because the footing of both parties is equal, neither being exclusively plaintiff or defendant, but each sustaining the double role. 8. To speak of the procedure and result of interdicts under the older law would now be a waste of words; for when the procedure is what is called "extraordinary," as it is nowadays in all actions, the issue of an interdict is unnecessary, the matter being decided without any such preliminary step in much the same way as if it had actually been taken, and a modified action had arisen on it. |
It should here be observed that great pains have been taken by
those who in times past had charge of the law to deter men from reckless
litigation, and this is a thing that we too have at heart. The best
means of restraining unjustifiable litigation, whether on the part of
a plaintiff or of a defendant, are money fines, the employment of the
oath, and the fear of infamy. 1. Thus under our constitution, the oath has to be taken by every defendant, who is not permitted even to state his defence until he swears that he resists the plaintiff’s claim because he believes that his cause is a good one. In certain cases where the defendant denies his liability the action is for double or treble the original claim, as in proceedings on unlawful damages, and for recovery of legacies bequeathed to religious places. In various actions the damages are multiplied at the outset; in an action on theft detected in the commission they are quadrupled; for simple theft they are doubled; for in these and some other actions the damages are a multiple of the plaintiff’s loss, whether the defendant denies or admits the claim. Vexatious litigation is checked on the part of the plaintiff also, who under our constitution is obliged to swear on oath that his action is commenced in good faith; and similar oaths have to be taken by the advocates of both parties, as is prescribed in other of our enactments. Owing to these substitutes the old action of dishonest litigation has become obsolete. The effect of this was to penalize the plaintiff in a tenth part of the value he claimed by action; but, as a matter of fact, we found that the penalty was never exacted, and therefore its place has been taken by the oath above mentioned, and by the rule that a plaintiff who sues without just cause must compensate his opponent for all losses incurred, and also pay the costs of the action. 2. In some actions condemnation carries infamy with it, as in those on theft, robbery, outrage, fraud, guardianship, agency, and deposit, if direct, not contrary; also in the action on partnership, which is always direct, and in which infamy is incurred by any partner who suffers condemnation. In actions on theft, robbery, outrage, and fraud, it is not only infamous to be condemned, but also to compound, as indeed is only just; for obligation based on delict differs widely from obligation based on contract. 3. In commencing an action, the first step depends upon that part of the Edict which relates to summons; for before anything else is done, the adversary must be summoned, that is to say, must be called before the judge who is to try the action. And herein the praetor takes into consideration the respect due to parents, patrons, and the children and parents of patrons, and refuses to allow a parent to be summoned by his child, or a patron by his freedman, unless permission so to do has been asked of and obtained from him; and for non-observance of this rule he has fixed a penalty of fifty solidi. |
Finally we have to treat of the duties of a judge;
of which the first is not to judge contrary to statutes, the imperial
laws, and custom. 1. Accordingly, if he is trying a noxal action, and thinks that the master ought to be condemned, he should be careful to word his judgement thus: "I condemn Publius Maevius to pay ten aurei to Lucius Titius, or to surrender to him the slave that did the wrong." 2. If the action is real, and he finds against the plaintiff, he ought to absolve the defendant; if against the latter, he ought to order him to give up the property in question, along with its fruits. If the defendant pleads that he is unable to make immediate restitution and applies for execution to be stayed, and such application appears to be in good faith, it should be granted upon the terms of his finding a surety to guarantee payment of the damages assessed, if restitution be not made within the time allowed. If the subject of the action be an inheritance, the same rule applies as regards fruits as we laid down in speaking of actions for the recovery of single objects. If the defendant is a mala fide possessor, fruits which but for his own negligence he might have gathered are taken into account in much the same way in both actions; but a bona fide possessor is not held answerable for fruits which he has not consumed or has not gathered, except from the moment of the commencement of the action, after which time account is taken as well of fruits which might have been gathered but for his negligence as of those which have been gathered and consumed. 3. If the object of the action be production of property, its mere production by the defendant is not enough, but it must be accompanied by every advantage derived from it; that is to say, the plaintiff must be placed in the same position he would have been in if production had been made immediately on the commencement of the action. Accordingly if, during the delay occasioned by trial, the possessor has completed a title to the property by usucapion, he will not be thereby saved from being condemned. The judge ought also to take into account the mesne profits, or fruits produced by the property in the interval between the commencement of the action and judgement. If the defendant pleads that he is unable to make immediate production, and applies for a stay, and such application appears to be in good faith, it should be granted on his giving security that he will render up the property. If he neither complies at once with the judge’s order for production, nor gives security for doing so afterwards, he ought to be condemned in a sum representing the plaintiff’s interest in having production at the commencement of the proceedings. 4. In an action for the division of a "family" the judge ought to assign to each of the heirs specific articles belonging to the inheritance, and if one of them is unduly favoured, to condemn him, as we have already said, to pay a fixed sum to the other as compensation. Again, the fact the one only of two joint-heirs has gathered the fruits of land comprised in the inheritance, or has damaged or consumed something belonging thereto, is ground for ordering him to pay compensation to the other; and it is immaterial, so far as this action is concerned, whether the joint-heirs are only two or more in number. 5. The same rules are applied in an action for partition of a number of things held by joint-owners. If such an action be brought for the partition of a single object, such as an estate, which easily admits of division, the judge ought to assign a specific portion of each joint-owner, condemning such one as seems to be unduly favoured to pay a fixed sum to the other as compensation. If the property cannot be conveniently divided – as a slave, for instance, or a mule – it ought to be adjudged entirely to one only of the joint-owners, who should be ordered to pay a fixed sum to the other as compensation. 6. In an action for rectification of boundaries the judge ought to examine whether an adjudication of property is actually necessary. There is only one case where this is so; where, namely, convenience requires that the line of separation between fields belonging to different owners shall be more clearly marked than heretofore, and where, accordingly, it is requisite to adjudge part of the one’s field to the owner of the other, who ought, in consequence, to be ordered to pay a fixed sum as compensation to his neighbor. Another ground for condemnation in this action is the commission of any malicious act, in respect of the boundaries, by either of the parties, such as removal of landmarks, or cutting down boundary trees: as also is contempt of court, expressed by refusal to allow the fields to be surveyed in accordance with a judge’s order. 7. Wherever property is adjudged to a party in any of these actions, he at once acquires a complete title thereto. |
Public prosecutions are not commenced as actions are, nor indeed
is there any resemblance between them and the other remedies of which
we have spoken; on the contrary, they differ greatly both in the mode
in which they are commenced, and in the rules by which they are conducted. 1. They are called public because as a general rule any citizen may come forward as prosecutor in them. 2. Some are capital, others not. By capital prosecutions we mean those in which the accused may be punished with the extremest severity of the law, with interdiction from water and fire, with deportation, or with hard labour in the mines: those which entail only infamy and pecuniary penalties are public, but not capital. 3. The following statutes relate to public prosecutions. First, there is the lex Iulia on treason, which includes any design against the Emperor or State; the penalty under it is death, and even after decease the guilty person’s name and memory are branded with infamy. 4. The lex Iulia, passed for the repression of adultery, punishes with death not only defilers of the marriage-bed, but also those who indulge in criminal intercourse with those of their own sex, and inflicts penalties on any who without using violence seduce virgins or widows of respectable character. If the seducer be of reputable condition, the punishment is confiscation of half his fortune; if a mean person, flogging and relegation. 5. The lex Cornelia on assassination pursues those persons, who commit this crime with the sword of vengeance, and also all who carry weapons for the purpose of homicide. By a "weapon," as is remarked by Gaius in his commentary on the statute of the Twelve Tables, is ordinarily meant some missile shot from a bow, but it also signifies anything thrown with the hand; so that stones and pieces of wood or iron are included in the term. Telum, in fact, or "weapon," is derived from the Greek "telou," and so means anything thrown to a distance. A similar connexion of meaning may be found in the Greek word "belos," which corresponds to our telum, and which is derived from "ballesthai," to throw, as we learn from Xenophon, who writes, "they carried with them belei, namely spears, bows and arrows, slings, and large numbers of stones." "Sicarius," or assassin, is derived from "sica," a long steel knife. This statute also inflicts punishment of death on poisoners, who kill men by their hateful arts of poison and magic, or who publicly sell deadly drugs. 6. A novel penalty has been devised for a most odious crime by another statute, called the lex Pompeia on parricide, which provides that any person who by secret machination or open act shall hasten the death of his parent, or child, or other relation whose murder amounts in law to parricide, or who shall be an instigator or accomplice of such a crime, although a stranger, shall suffer the penalty of parricide. This is not execution by the sword or by fire, or any ordinary form of punishment, but the criminal is sewn up in a sack with a dog, a cock, a viper, and an ape, and in this dismal prison is thrown into the sea or a river, according to the nature of the locality, in order that even before death he shall begin to be deprived of the enjoyment of the elements, the air being denied him while alive, and interment in the earth when dead. Those who kill persons related to them by kinship or affinity, but whose murder is not parricide, will suffer the penalties of the lex Cornelia on assassination. 7. The lex Cornelia on forgery, otherwise called the statute of wills, inflicts penalties on all who shall write, seal, or read a forged will or other document, or shall substitute the same for the real original, or who shall knowingly and feloniously make, engrave, or use a false seal. If the criminal be a slave, the penalty fixed by the statute is death, as in the statute relating to assassins and poisoners: if a free man, deportation. 8. The lex Iulia, relating to public or private violence, deals with those persons who use force armed or unarmed. For the former, the penalty fixed by the statute is deportation; for the latter, confiscation of one third of the offender’s property. Ravishment of virgins, widows, persons professed in religion, or others, and all assistance in its perpetration, is punished capitally under the provisions of our constitution, by reference to which full information on this subject is obtainable. 9. The lex Iulia on embezzlement punishes all who steal money or other property belonging to the State, or devoted to the maintenance of religion. Judges who during the term of office embezzle public money are punishable with death, as also are their aiders and abettors, and any who receive such money knowing it to have been stolen. Other persons who violate the provisions of this statute are liable to deportation. 10. A public prosecution may also be brought under the lex Fabia relating to manstealing, for which a capital penalty is sometimes inflicted under imperial constitutions, sometimes a lighter punishment. 11. Other statutes which give rise to such prosecutions are the lex Iulia on bribery, and three others, which are similarly entitled, and which relate to judicial extortion, to illegal combinations for raising the price of corn, and to negligence in the charge of public moneys. These deal with special varieties of crime, and the penalties which they inflict on those who infringe them in no case amount to death, but are less severe in character. 12. We have made these remarks on public prosecutions only to enable you to have the merest acquaintance with them, and as a kind of guide to a fuller study of the subject, which, with the assistance of Heaven, you may make by reference to the larger volume of the Digest or Pandects. |
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