first deducting from it debts owed to himself in full. There is also a discussion of the relative advantages to the creditor of these different actions and of a condictio, where he has an option; and in § 7 we have a notice of the SC. Macedonianum, which refused an action upon money loans given to a child in power against the latter himself no less than against the paterfamilias.

In the following Title (8) there is a corresponding treatment of the dominus' and paterfamilias' liability on the delicts of those in their potestas. The law by which the several delicts had been constituted, whether civil or praetorian, had given the superior the option of paying damages or surrendering the delinquent, as a slave or in mancipio, to the injured person. Justinian definitely confirmed as law the usage which had grown up under the later Empire, and which limited this 'noxal' surrender to slaves: children in power were to be personally liable on their delicts, and the paterfamilias free. The maxim 'noxalis actio caput sequitur' is explained in § 5, and in § 6 there is a discussion of the effects of delicts committed by slaves against their own masters. The application of noxal surrender in the case of pauperies, or damage done by certain domesticated animals, is treated in Title 9, which also gives some account of a penal action introduced by the aedile for the redress of injuries or damage done by wild animals kept under insufficient control near places of public resort. The Titles between the 9th and the 15th have a nearer relation to Procedure proper than the other parts of this Book, and are all closely modelled after Gaius. The first of them deals, though somewhat uninstructively, with the employment of agents or attorneys in litigation, which, originally tolerated only in very few cases, had, as Justinian remarks, become almost universally permissible under the later practice. Title 11 gives a historical account of the earlier law as to the security to be given by plaintiffs and defendants, especially when represented by such attorneys, and then proceeds to state the rules in force upon this subject under Justinian, and Title 12 discusses the active and passive transmission of rights of action, their extinction by a longer or shorter prescription, and the right of a defendant under the maxim 'omnia iudicia absolutoria' to be acquitted if he satisfied the plaintiff's claim at any moment before judgment.

Exceptiones—a class of defences consisting in the plea of a countervailing right as distinct from a direct denial of the plaintiff's allegations-form the subject of Title 13, and are copiously illustrated in its first few paragraphs. The most important classification of them, which turns upon the energy of their operation in respect of time and

persons, is then pointed out and exemplified, and the effect of a plaintiff's bringing his action before really entitled to do so, both under the older law and as regulated by an enactment of Zeno, is carefully described. The possibility of meeting a defendant's exceptio by a replicatio on the part of the plaintiff—a fencing process whichmight be carried to any length by duplicationes, triplicationes, etc.is noticed and illustrated in Title 14, which concludes with a statement of the law as to how far sureties could defend themselves by the exceptiones of their principal. The subject of the 15th Title is interdicts, a class of actions relating for the most part to Possession and Quasi-possession, the acquisition and retention of which are lightly touched upon in § 5. The procedure in interdicts, which in the formulary period had been of a peculiar and complicated nature, of which some account is given in the notes, was under Justinian (as he points out in § 8) much the same as in an ordinary action. In general they are divided according as the object for which the interdict is brought is the prevention of some unlawful act, or the restitution or production of property: those which relate exclusively to possession fall into three classes, adipiscendae, retinendae, and recuperandae possessionis causa; the first kind is illustrated by the interdicta Salvianum and quorum bonorum, the second by uti possidetis and utrubi (in describing which the older procedure is incidentally touched upon), and the last by unde vi. Finally, interdicts are divided into simple and double, the latter being those in which neither party plays exclusively the role of either plaintiff or defendant; a peculiarity from which had resulted the very complicated character of their procedure as described by Gaius. This is followed in Title 16 by an account of the precautions taken by Roman law to prevent people from either beginning or defending actions without just and reasonable cause. Among these are the oath exacted from both parties and their counsel that they honestly believe their case to be a good one; the duplication of damages in some actions if the defendant denied his liability; the association of infamia with condemnation in others; and the obligation of the losing side to pay the other's costs. The last paragraph relates to summons, and to the penalty inflicted on freedmen and children in power if they presumed to commence litigation against their patron or paterfamilias without first obtaining the praetor's permission. Title 17 explains the duties of the judge in different kinds of suits, real and noxal actions and the iudicia divisoria being selected for special treatment; and in Title 18, the Book concludes with a short account of public prosecutions,

and the leading statutes by which crimes were defined, and their punishment prescribed. Treason is dealt with in § 3: adultery and similar offences in § 4: murder in § 5, and the peculiar form of it known as parricidium in § 6: forgery in § 7: violence to the person .in § 8 embezzlement in § 9: manstealing and kidnapping in § 10: and a variety of minor offences punished more lightly than these in § II.

LIBER QUARTUS.

I.

DE OBLIGATIONIBUS QUAE EX DELICTO NASCUNTUR.

CUM expositum sit superiore libro de obligationibus ex contractu et quasi ex contractu, sequitur ut de obligationibus ex maleficio dispiciamus. sed illae quidem, ut suo loco tradidimus, in quattuor genera dividuntur: hae vero unius generis sunt, nam omnes ex re nascuntur, id est ex ipso maleficio, veluti ex furto aut rapina aut damno aut iniuria.

Tit. I. A delict is usually defined as a violation of a ius in rem which generates an obligation remissible by the private individual who is wronged. This, though it serves to distinguish delict, as a source of obligations, from contract, and as a private wrong from a crime, is insufficient when applied to Roman law. Such wrongs as the withholding of possession by a defendant who bona fide believes in his own title are not delicts, at any rate in the specific sense in which the term is used in the Institutes; they give rise, it is true, to a right of action, but a right of action is a different thing from an obligatio ex delicto: they are redressed by mere reparation, by the wrong-doer being compelled to put the other in the position in which he would have been had the wrong never been committed. But delicts, as contrasted with them and with contracts, possess three peculiarities. The obligations which arise from them are independent, and do not merely modify obligations already subsisting : they always involve dolus or culpa; and the remedies by which they are redressed are penal. From every true delict arises an obligation to pay a penalty to the person who pursues it; and from every delict which causes damnum or proprietary loss arises also an obligation to compensate the injured person for that loss. This latter obligation, though it does not enrich the person wronged, may itself be penal-as where the wrong-doer has derived little or no material benefit from the wrong, so that after making compensation he is poorer than before he committed the delict. In such cases the action is treated as a penal action; e. g. in not being passively transmissible except so far as the delinquent's property has been augmented by the wrong; Savigny proposes to term it 'unilaterally penal.' The two obligations arising from delicts which cause proprietary loss are not always pursued by different remedies; this is so

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