BOOK I. Chapter II. a See Smith, Dict.of Antiqq., 8. Sestertius; Roby, School Lat. Gr. p. 67. Cic. pro Rosc. Com. 4: aliud est iudicium aliud est arbitrium. Iudicium est pecuniae certae, arbitrium pecuniae incertae ; ad iudicium hoc modo venimus, ut totam litem aut obtineamus aut amittamus; ad arbitrium hoc modo adimus ut neque nihil neque tantum, quantum postulavimus, consequamur; eius rei ipsa verba formulae testimonio sunt. . . . Quid est in iudicio? directum, asperum, simplex: SI PARET HS 1ƆƆƆ DARI.' a Hic nisi plenum facit HS 1000 ad libellam sibi deberi, causam perdit. Quid est in arbitrio ? mite, moderatum: 'QVANTVM AEQVIVS MELIVS SIT ID DARI.' 1 Id. de Off. iii. 17, Q. Scaevola pont. max. summam vim esse dicebat in omnibus iis arbitriis in quibus adderetur EX FIDE BONA, fideique bonae nomen existimabat manare latissime idque versari in tutelis, societatibus, fiduciis, mandatis, rebus emptis venditis, conductis locatis, quibus vitae societas contineretur: in iis magni esse iudicis iudex of estimating fairly and equitably what is the right amount to be paid to the plaintiff; which comprises that of estimating what the plaintiff ought in turn to pay, so that, allowing such rebate, the iudex should make an order upon the defendant for the balance. [The iudex, however, is free to take no account whatever of such set-off, for it is not even plainly enjoined by the words of the formula, but is considered to be part of his duty, because it would seem to comport with a bonae fidei action.] 1... iudicium and arbitrium differ from one another. Iudicium is a matter of a liquidated sum, arbitrium, of one unascertained. We arrive at a iudicium in this way, that we either carry or lose the whole suit; we come to an arbitrium thusthat neither do we obtain nothing, nor just so much as we have claimed, as witnessed by the very words of the formula. . . . . What characterises the iudicium? It is summary, rigid, simple: 'If it appear that 50,000 sesterces should be given.' Unless he make out that exactly 50,000 sesterces are due to him, he loses the cause. But what characterises the arbitrium? It is mild and moderate. Let that be given which may be the fairer and 1 BOOK I. statuere, quid quemque cuique praestare opor- Chapter II. teret.1 Bonae fidei sunt hae: ex empto vendito, locato conducto, negotiorum gestorum, mandati, depositi [fiduciae], pro socio, tutelae, commodati, pigneraticiae, familiae erciscundae, communi dividundo, praescriptis verbis, quae de aestimato proponitur, et ea quae ex permutatione competit, et . . . rei uxoriae actio. §§ 28-29, I. h. t. Cf. Gai. iv. 62.2 2. Arbitrariae actiones.' These are the actions (especially in rem') in which the judge, in accordance with the direction contained in the formula NISI ARBITRATV TVO RESTITVAT, before he gives judgment against the defendant, has to enjoin upon him that he should conciliate the plaintiff in the manner ex aequo et bono' prescribed by such judge. Praeterea quasdam actiones arbitrarias, i.e. ex arbitrio iudicis pendentes appellamus, in quibus nisi arbitrio iudicis is cum quo agitur actori satisfaciat, veluti rem restituat vel exhibeat vel solvat vel ex noxali causa servum dedat condemnari debeat. Sed istae actiones tam in rem quam in personam inveniuntur. . . . In his enim actionibus permittitur iudici ex bono et aequo Q. Scaevola the pont. max. used to say that the greatest virtue resided in all those actions in which was added 'ex fide bona,' and he thought that the designation bonae fidei was of the widest extent, and was employed in guardianships, partnerships, pledges, gratuitous agencies, buying and selling, letting and hiring, in which daily intercourse was concerned; that in them it was the part of a great iudex to decide what each man ought to give to some one else. 2 Bonae fidei are the following: actions of buying and selling, letting and hiring, management of business, gratuitous agency, deposit [fiduciary agreement to restore], partnership, guardianship, loan, pledge, division of an inheritance, partition of common property, the action praescriptis verbis, the action arising out of a commission-sale, the action which arises out of an exchange and .. the action to recover a wife's property. secundum cuiusque rei de qua actum est naturam aestimare, quemadmodum actori satisfieri oporteat. - 31, I. h. t.al 1 'Actiones populares' are such actions as, conceived in the interest of public order, belong to everybody. I. In the strict sense, honorary penal actions, in which with the public can be associated a private interest of the plaintiff, although not a pecuniary one.c Paul. Eam popularem actionem dicimus, quae [suum] ius populi tenetur.-1. 1, D. h. t. (de pop. act. 47, 23).2 quis Id. In popularibus actionibus : quasi unus ex populo agit.-1. 43, § 2, D. de proc. 3, 3.3 : Id. Si plures simul agant populari actione, praetor eligat idoneiorem.-1. 2, D. h. t.—Ulp. : is cuius interest praefertur.-1. 3, § 1, eod.* Ulp. Omnes populares actiones neque in heredes dantur, neque supra annum extenduntur. -1, 8 eod. Paul. Item qui habet has actiones, non intelligitur esse locupletior.-1. 7, § 1 eod.-Ulp. : Si ex populari causa (debeatur), ante litis contes 1 Moreover, certain actions are called capricious, i.e., dependent upon the caprice of the iudex, in which the defendant, unless in the opinion of the iudex he offers satisfaction to the plaintiff, e.g., restores or produces or pays for a thing or gives up a slave because of injury done by him, must be condemned. Such actions occur both in rem and in personam. . . . In these actions. . . the iudex is allowed to decide according to right and equity in relation to the nature of the matter subject of the action, in what way satisfaction should be rendered to the plaintiff. 2 By a popular action we mean that which upholds the right of the people. 3 In popular actions . . . anybody acts as one of the people. If several at one time bring a popular action, the praetor shall select the fittest. . . the person interested is preferred. 5 No popular actions are given against the heirs, or are extended beyond a year. tationem recte dicetur creditoris loco non esse, Paul, Is qui eam (actionem) movet, procura- Id. Qui ita de publico agant, ut et privatum commodum defendant, causa cognita permittuntur procuratorem dare.—1. 45, § 1, D. de proc.3 2. Those legal, criminal suits for public order by which the State, or the Community, empowers every citizen to take up, in a representative character, such public interest as has been violated, and in which the penalty inflicted goes to the State, a part, however, frequently being given to the plaintiff as a reward. Lex Iulia mun. c. 23 (24, 27): QVEI.. ADVERSVS EA FECERIT IS HS 1000 POPVLO DARE BOOK I. Chapter II. § 25. COMMENCEMENT AND TERMINATION OF ACTIONS; AND OF PRESCRIPTION IN PARTICULAR. The right of action, as authority for summary prosecution, arises (actio nascitur) or can be exercised in real rights upon their infringement; in obligations, as soon as the creditor can demand the fulfilment of the obligation, and the debtor neglects it. The action once begun remains on foot so long as the right to be protected by it, or rather its violation, continues. 1 Likewise he does not appear the wealthier who has this action. If (a debt be owing) in consequence of a popular action, it will be rightly said that before the litis contestatio he is not in the position of a creditor, but is afterwards. 3 He who brings that action cannot appoint a representative. They who proceed because of some public matter, that they may also protect their private interest, are allowed upon investigation of the case to appoint a representative. 4 He... that shall have transgressed this, let him be sentenced to give 50,000 sesterces to the People, and let such money be claimed by whomsoever it pleases. K BOOK I. Chapter II. a § 147. • For the Ro Thus in particular does the action regularly not determine by the death of a party, with the exception First, of act. populares,' the so-called 'vindictam spirantes,' and certain actiones rei persequendae gratia' not having the character of pure Property Law (e.g., act. rei uxoriae,a querela inofficiosi ) which are extinguished by the death of the party entitled. Ulp.: Iniuriarum actio neque heredi neque in heredem datur.-D. 47, 10, 13 pr.1 Paul. Magis enim vindictae quam pecuniae habet persecutionem.-D. 37, 6, 2, 4.1 Secondly, of the 'act. poenales,' which are extinguished by the death of the party entitled. Non omnes autem actiones, quae in aliquem aut ipso iure competunt aut a praetore dantur, et in heredem aeque competunt aut dari solent. Est enim certissima iuris regula, ex maleficiis poenales actiones in heredem non competere, veluti furti, vi bonorum raptorum, iniuriarum, damni iniuriae. Sed heredibus huius modi actiones competunt nec denegantur, excepta iniuriarum actione et si qua alia similis inveniatur.— § 1, I. h. t. (de perp. et temp. act. 4, 12) = Gai. iv. 112.3 'Litis contestatio,' however, makes all actions transmissible as well actively as passively. Paul. Post litem contestatam heredi quoque 1 The action for injuries is neither given to the heir nor against him. 2 He has more the pursuit of revenge than of money. 3 But not all actions that either attach against any one ipso iure, or are granted by the Praetor, equally attach against the heir or are wont to be granted. For there is a clearly estab lished rule of law, that venal actions arising out of torts do man conception not lie against the heir; e.g., those of theft, of violent robbery, of injuries, of wrongful damage. But actions of this kind are available for heirs and are not denied them, except the action of injury and other like actions, if such are to be found. of Tort, see Maine, Anct. Law,' chap. x. |