Chapter XI: Book IV: Title I. of Obligations Arising From Delict (1)

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.