it may be observed, appears to exact a greater amount of diligence than this from Trustees, though they are equally unremunerated). The same amount of diligence is required from the partner, (Venit autem in hoc judicium pro socio bona fides. Et Celsus scripsit socios inter se dolum et culpam praestare oportere, Dig. 17, 2; 52, 1. Socius socio etiam culpae nomine tenetur, id est, desidiae atque negligentiae. Culpa autem non ad exactissimam diligentiam dirigenda est sufficit enim talem diligentiam communibus rebus adhibere qualem suis rebus adhibere solet, quia qui parem diligentem sibi socium acquirit, de se queri debet, Dig. 17, 2, 72), the husband in respect of the dotal estate, (In rebus dotalibus virum praestare oportet tam dolum quam culpam, quia causa sui dotem accipit; sed etiam diligentiam praestabit quam in suis rebus exhibet, Dig. 23, 3, 17), the coheir and colegatee, (Non tantum dolum sed et culpam in re hereditaria praestare debet coheres, quoniam cum coherede non contrahimus sed incidimus. in eum. Non tamen diligentiam praestare debet qualem diligens paterfamilias, quoniam hic propter suam partem causam habuit gerendi.... Talem igitur diligentiam praestare debet qualem in suis rebus, Dig. 10, 2; 25, 16). In these latter relations both parties are interested and their interests are identical. It must be observed that Ulpian, Dig. 13, 6, 5, places the husband and partner in the same category with the vendor vendee, hirer letter, mortgagor and mortgagee, whom we have put into the opposite category. This does not harmonize with the authorities we have quoted, and must be regarded as an inexactitude of Ulpian. Misled by Ulpian, Sir William Jones in his treatise on Bailments lays down the principle that, when a contract is reciprocally beneficial, only ordinary diligence is required, whereas we have shown that if the interests of the parties are not identical, the Roman law, at least, requires extraordinary diligence. He also, in measuring diligence and negligence, introduces the conception of a mean and two extremes, making three gradations of diligence (and correspondingly of negligence), ordinary diligence, less than ordinary diligence, more than ordinary diligence: but this tripartite division produces an intricacy and complication that is not to be found in the Roman jurists. We may observe that the investigation of Imputability is only a portion of a larger department of jurisprudence, the investigation of the general nature and import of Title. A large proportion of Titles, i. e. facts to which Law annexes Rights and Obligations, are human Actions; and human Actions in their character of Titles to Obligations are deeply influenced and modified by certain incidents or attributes to which they are liable, such as ignorance or mistake, whether of law or of fact, motive or inducement, such as extraordinary provocation, great intimidation, overwhelming terror, and the like. It is impossible when he makes his synthesis of Title and Obligation, for the lawgiver to overlook these distinctions-if he did, law would be nugatory and could never answer its purpose, the attainment of the common weal, or whatever end the lawgiver proposes and hence the necessity in jurisprudence of fixing, as we have attempted to do, the meanings of Volitional, Intentional, Deliberate, Culpa, Dolus, and similar Ethical terms. A more complete theory of the Voluntary or Intentional would require us not to confine our view, as to a great extent we have done in the foregoing discussion, to delict or physical action, but to extend it to all juristic actions or manifestations of will (negotia gesta), whether bilateral, as contracts, or unilateral, as testamentary dispositions, acceptance or refusal of a succession, &c. In this wider field of view the definitions of Volition and Intention and their correlatives, Ignorance and Error, would require some modification. Under the head of Obligatio ex delicto should be placed, in an exposition of Roman law governed by Roman views of jurisprudence, the doctrine of POSSESSION (Interdict-possession), or, rather, of Dispossession, with its remedies, the Interdicts Utrubi, Uti possidetis, and Unde vi. It should be placed here because this is the Roman arrangement. The Roman jurists, instead of recognizing in Possession a primary right, imposing a negative obligation on all the world (jus in rem), were content with regarding Dispossession as a wrong imposing a secondary positive obligation on the individual dispossessor, and treated the possessory Interdicts as actions ex delicto. In a system of theoretic jurisprudence Possession might perhaps with equal propriety be classed with Dominion as a primary right demanding universal recognition (jus in rem), and the Interdicts allotted for its protection might be coordinated, not with Personal actions ex delicto, but with Real actions (vindicatio), the remedy whereby Dominion is protected and recovered against all the world. BOOK IV. DE ACTIONIBUS. § 1. Si quaeritur, quot genera actionum sint, verius videtur duo esse: in rem et in personam. nam qui IIII esse dixerunt ex sponsionum generibus, non animadverterunt quasdam species actionum inter genera se rettulisse. § 2. In personam actio est qua agimus quotiens cum aliquo qui nobis vel ex contractu vel ex delicto obligatus est contendimus, id est cum intendimus dare, facere, praestare oportere. § 3. In rem actio est, cum aut corporalem rem intendimus nostram esse, aut ius aliquod nobis competere, velut utendi, aut utendi fruendi, eundi, agendi aquamve ducendi, vel altius tollendi vel prospiciendi. item actio ex diverso adversario est negativa. § 4. Sic itaque discretis actionibus, certum est non posse nos rem § 1. We have now to treat of Actions, which fall into two classes, being either Real or Personal: for those who count four classes, including the forms of sponsio, commit the error of co-ordinating subclasses and classes. § 2. A Personal action seeks to enforce an obligation imposed on the defendant by his contract or delict, that is to say, is the contention that he is bound to transfer some dominion or to perform some service or to repair some loss. § 3. A Real action is my claim of some dominion or some fraction of dominion, as a right of use or usufruct of a thing belonging to my neighbour, a right of horseway or carriage-way through his land, of fetching water from a source in his land, of raising my house above a certain height, or of having the prospect from my windows unobstructed; or the opposite contention of my neighbour, his denial that I have any such fraction of dominion. § 4. Real and Personal actions being thus distinguished, it is clear nostram ab alio ita petere, SI PARET EUM DARE OPORTERE: nec enim quod nostrum est, nobis dari potest, cum solum id dari nobis intellegatur quod ita datur, ut nostrum fiat; nec res quae est nostra, nostra amplius fieri potest. plane odio furum, quo magis pluribus actionibus teneantur, effectum est, ut extra poenam dupli aut quadrupli rei recipiendae nomine fures ex hac actione etiam teneantur, SI PARET FOS DARE OPORTERE, quamvis sit etiam adversus eos haec actio qua rem nostram esse petimus. § 5. Appellantur autem in rem quidem actiones vindicationes; in personam vero actiones quibus dare fierive oportere intendimus, condictiones. § 6. Agimus autem interdum, ut rem tantum consequamur, interdum ut poenam tantum, alias ut rem et poenam, § 7. Rem tantum persequimur velut actionibus quibus ex contractu agimus. § 8. Poenam tantum consequimur velut actione furti et iniuriarum, et secundum quorundam opinionem actione vi bonorum raptorum; nam ipsius rei et vindicatio et condictio nobis competit. § 9. Rem vero et poenam persequimur velut ex his causis ex quibus adversus infitiantem in duplum agimus quod accidit per actionem iudicati, depensi, damni iniuriae that I cannot demand my property from another in the following form: 'If it be proved that the defendant is bound to convey such property to me.' What is my own cannot be conveyed to me, for conveyance to me makes a thing mine, and what is already mine cannot be made more mine than it is. Yet, for the prevention of theft and multiplication of remedies against the thief, besides the penalty of twice the value of the thing stolen awarded against the thief not caught in the act, and the penalty of four times the value against the thief caught in the act, the thing itself may be recovered by a personal action in which the contention is thus worded: 'If it be proved that the defendant ought to convey the thing in question,' as well as by the real action thus formulated: 'If it be proved that the thing in question is the property of the plaintiff.' § 5. A Real action is called vindicatio; a Personal action, whereby we contend that some property should be conveyed to us or some service performed for us, is called condictio. § 6. We sue sometimes only for property to which we have a title, real or personal, sometimes only for a penalty, sometimes both for our property and for a penalty. §7. We sue only for our property in (real actions and in) personal actions founded on contract. § 8. We sue only for a penalty in actions of Theft and Outrage, and, according to some, of Rapine; for our property itself may be recovered either by Real or by Conservative (non-penal) personal action. § 9. We sue both for our property and for a penalty in those actions where the defendant who denies his obligation is condemned to pay double, as in the action to recover a legis Aquiliae, et rerum legatarum nomine quae per damnationem certae relictae sunt. judgment debt, to recover money paid by a sponsor for his principal, to recover damages for injury to property under the lex Aquilia, and to recover legacies of a definite amount bequeathed by condemnation of the successor. § 1. Sponsio or wager was an indirect mode of submitting questions to judicial decision, which seems to have been very commonly employed before the introduction of the formulary system. We are left to conjecture how its classification enabled any jurist to count four classes of action. Its principal division seems to be into the sponsio where the pecuniary risk was serious and the penal sum important (sponsio poenalis), and the sponsio where the penal sum was nominal and not actually exacted (sponsio praejudicialis). Adding these two divisions to real and personal actions, we should have four classes. But as every sponsio, asserting an obligation arising from stipulation, was a species of personal action, this classification would involve a co-ordination of sub-genera and genera, or subdivisions and divisions. A Real action is one which asserts a jus in rem, a Personal action one which asserts a jus in personam. A jus in rem, we may remember, is a right to certain forbearances, or freedom from molestation, corresponding to a duty imposed on all the world; a jus in personam is a right to certain performances corresponding to a duty imposed on a determinate person. Jura in rem are Status, or Property, or Servitude, that is, some fraction of property. Jura in personam are Obligations founded on either contract or delict. Primordial rights (life, limb, liberty, honour, &c.), though jura in rem, do not give rise to real actions; their violation engenders an obligation in the violator, which is pursued by a personal action ex delicto. A Real action, accordingly, asserts either the status or the proprietorship of the plaintiff, if we include under proprietorship the elements of property called easements or servitudes; a Personal action asserts an obligation of the defendant towards the plaintiff. Real and Personal actions of Roman law must not be identified with those of English law. A Real action in English law may be defined with sufficient accuracy for our present purpose as an action whereby we claim property in an immovable; a claim of property D d |