BOOK IV.

TITLE I. OF OBLIGATIONS ARISING FROM DELICT

Having treated in the preceding Book of contractual and quasicontractual

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 nonproduction 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 lastnamed actions, namely, those for receiving stolen goods, for

introducing them, for refusal of search, and for nonproduction, 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 neighbourhood, 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 wouldbe 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.

TITLE II. OF ROBBERY

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 offence 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.

TITLE III. OF THE LEX AQUILIA

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 wrongdoing.

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 answerable 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.

TITLE IV. OF INJURIES

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 'ubris': 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 daughterinlaw, 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.

TITLE V. OF QUASI-DELICTAL OBLIGATIONS

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 quasidelictal, and a pecuniary penalty will be imposed on him at

the judge's discretion.

1 Another case of quasidelictal 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 shipowners, 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 quasidelictal. 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 shipowner, inn or stable keeper.

TITLE VI. OF ACTIONS

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 neighbour'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, threefourths

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, unauthorised

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 lastnamed 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 setoff, 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 setoff.

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 socalled 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

threefourths allowed by that statute. Overstatement 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 overclaim 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. Overclaim in respect

of time occurs when a man sues for money before the day fixed for

payment, or before the fulfilment 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 overclaim. Overclaim 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 overclaim, 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. Overclaim in respect

of specification closely resembles overclaim 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 overclaim 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 overclaim 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

overclaim: 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 overclaim 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 sometimes 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 setoff: 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.

TITLE VII. OF CONTRACTS MADE WITH PERSONS IN POWER

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 shipmaster, 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.

TITLE VIII. OF NOXAL ACTIONS

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.

TITLE IX. OF PAUPERIES, OR DAMAGE DONE BY QUADRUPEDS

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.

TITLE X. OF PERSONS THROUGH WHOM WE CAN BRING AN ACTION

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 illhealth, 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.

TITLE XI. OF SECURITY

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 able 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 socalled 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.

TITLE XII. OF ACTIONS PERPETUAL AND TEMPORAL, AND WHICH MAY BE BROUGHT

BY AND AGAINST HEIRS

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.

TITLE XIII. OF EXCEPTIONS

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

nonexistence 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 defendent, 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 overclaims 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.

TITLE XIV. OF REPLICATIONS

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.

TITLE XV. OF INTERDICTS

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.

TITLE XVI. OF THE PENALTIES FOR RECKLESS LITIGATION

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 nonobservance of this rule he

has fixed a penalty of fifty solidi.

TITLE XVII. OF THE DUTIES OF A JUDGE

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 jointheirs 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

jointheirs 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

jointowner, 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 jointowners, 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 neighbour. 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.

TITLE XVIII. OF PUBLIC PROSECUTIONS

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.

THE END OF THE INSTITUTES OF JUSTINIAN