to be acknowledged in the case of slaves) remains questionable. On the other hand, Dig. 44, 7, 14a demands consideration, as well as the effect of consumption of Litis Contestatio and Judgment." Iust. iv. 8, § 1 i.e. servus, noxia Noxa est corpus quod nocuit, ipsum maleficium.-Serv. in Verg. Aen. 1, 41: Noxia culpa est, i.e. peccatum, noxa autem poena.1 Fest. h. v.:-Noxia (damnum significat); Gai. (Noxalium) actionum vis et potestas haec est, ut si damnati fuerimus, liceat nobis deditione ipsius corporis quod deliquerit, evitare litis aestimationem.-1. 1 pr., D. h. t. (de nox. act. 9, 4). Id. Non solum adversus bona fide possessorem, sed etiam adversus eos, qui mala fide possident, noxalis actio datur.-1. 13 eod.* I Call. Is qui in aliena potestate est si noxam commisisse dicatur, si non defendatur, ducitur; et si praesens est dominus, tradere eum et de dolo malo promittere debet (1. 32 eod.). Gai.: sed huic necesse est ius suum ad actorem transferre, perinde ac si damnatus esset (1. 29 eod.).— Pomp.: Noxali iudicio invitus nemo cogitur alium defendere, sed carere debet eo, quem non defendit, 1 Noxa is the body which has caused the injury, that is, the slave; noxia is the tort itself.-Noxia is the fault, that is, offence, whilst noxa is the punishment. 2 Noxia (denotes injury); . . . noxa, an offence or punishment for an offence; . . . when the statute enjoins noxae dedere, it enjoins delivery up for an offence. ... 3 The force and power of noxal actions is this, that if we have been condemned, we are allowed, by surrender of the actual person of the wrongdoer, to avoid an assessment of the damages. A noxal action is given not only against the possessor in good faith, but against those who possess in bad faith. BOOK III. Pt. I. Ch. II. si servus est: quod si liber est qui in potestate sit, ipsi sui defensio danda est.-1. 33, D. eod.' Iust. iv. 17, § Inoxali iudicio . . . si condemnandus videbitur dominus, ita debeat condemnare: Publium Maevium Lucio Titio decem aureis condemno aut noxam dedere.' Ulp. Decem aut noxae dedere ' condemnatus iudicati in decem tenetur: facultatem enim noxae dedendae ex lege accipit. . . . Iudicium solius noxae deditionis nullum est, sed pecuniariam condemnationem sequitur; et ideo iudicati decem agitur, his enim solis condemnatur; noxae deditio in solutione est, quae e lege tribuitur.-D. 42, I, 6, 1. 3 Next, Noxa caput sequitur.' Paul. Actionum ex delicto venientium obligationes cum capite ambulant.-D. 4, 5, 7, 1.a Gai. iv. §§ 76-78: Constitutae sunt autem noxales actiones aut legibus aut edicto praetoris : 1 If he who is under the power of another be alleged to have committed an injury, and is not defended, he is led away [by the plaintiff]; and if the master be present, he must deliver him up and undertake to answer for his bad intention.-But the latter has to transfer his right to the plaintiff, just as if he had been condemned.-No one can be compelled against his will to defend another in a noxal action, but if the one whom he does not defend is a slave, the master must renounce him; but if he is a freeman under power, he must be allowed to defend himself. 2 If in a noxal action he shall consider the master ought to be condemned, he must give judgment thus: 'I condemn P. M. (to pay) ten aurei to L. T., or to surrender the wrongdoer.' 3 He that has been condemned to pay 'ten [aurei] or to surrender for punishment' is liable for ten, &c.; for by virtue of the statute he is empowered to surrender for punishment . . . There is no judgment of mere surrender for punishment. but it follows the pecuniary condemnation; and therefore the action is directed to a judgment for ten, &c., for in such alone is he condemned. The surrender for punishment lies in the payment, which is given by the statute. • Obligations appertaining to actions arising from delict shift with the person. legibus, velut furti lege XII tabularum, damni 1 Now noxal actions have been created either by leges or the Praetor's Edict: by leges, for instance, in respect of theft according to a law of the Twelve Tables, and of wrongful damage according to the l. Aquilia; by the Praetor's Edict, for example, in respect of insults and goods taken with violence. § All noxal actions follow the person, for if your son or slave has committed an offence, so long as he is in your power, an action lies against you; if he has come under the power of another, an action arises against that other; if he is once independent, a direct action lies against him and noxal surrender is at an end. On the other hand, the direct action also becomes noxal, for if the pat. fam. has BOOK III. Pt. I. Ch. 11. BOOK III. Pt. 1. Ch. II. a See Bell, s. VV. If the delict have been committed with the knowledge and by the will (scientia) of the master or paterfam., the action lies against him with the omission of the noxae deditio. : Ulp. Si servus sciente domino occidit, in solidum dominum obligat, . . . si autem iusciente, noxalis est.—Is qui non prohibuit, sive dominus manet sive desiit esse dominus, hac actione tenetur.-1. 2 pr., § 1, h. t.1 Id. Scientia . . . domini sic accipienda est, si, cum prohibere posset, non prohibuit.-1. 3 eod.2 § 114. EFFECT OF OBLIGATIONS WITH REGARD TO LEGAL ENFORCEMENT. NATURALIS OBLIGATIO," To the legal and complete efficacy of an obligation belongs its actionable character, i.e., the power of the committed a wrong, and then have given himself to you in arrogation. . . the action becomes noxal against you. § But if a son has committed a wrongful act against his father, or a slave against his master, no action arises; for there can be no obligation at all between me and a person who is under my power; and therefore, although he may have passed under the power of a third party, or has become independent, no action can be brought against either the man himself or the person under whose power he now is. Hence arises the question, whether if another's slave or son has committed an injury against me, and he afterwards has become subject to my power, the right of action is gone, or is only in abeyance. The authorities of our school think it is gone, because matters have fallen into such a plight, that no action can arise, and therefore, although he should pass out of my power, I cannot sue. The authorities of the opposite school are of opinion that, as he is under my power, the action is in abeyance (since I cannot proceed against myself); but that it is revived when he passes out of my power. 1 1 If the slave with the privity of the master have committed a murder, he renders his master liable for the whole . . . but if without such privity, it is noxal. To this action he is liable who did not forbid the act, whether he remain master or have ceased to be master. 2 By knowledge of the master we must understand: if he did not forbid it when he could. creditor to give effect by actio to the claim which belongs to him." a BOOK III. Pt. I. Ch. II. (1) According as the protection afforded by Law D. 50, 16, 108. to the obligation is that derived from ius civile or from ius praetorium, we have the distinction of obligationes civiles' and 'praetoriae' (honorariae); on the other hand, to civiles' obligationes, as those ius e See Poste, Gaius,' p. 359; Brown, s. Moral Obliga rooted in the ius proprium civium Romanorum, are § 116: Gai. opposed the naturales' obligationes, as those obli- iii. 92-93; gations which are already grounded in the $119, ad init. gentium, but recognised in the Roman Civil Law. Inst. iii. 13, § 1. Omnium autem obligationum summa divisio in duo genera deducitur, namque aut civiles sunt, aut praetoriae civiles D. 2, 14, 7. sunt, quae aut legibus constitutae aut certe iure civili comprobatae sunt; praetoriae sunt, quas praetor ex sua iurisdictione constituit, quae etiam honorariae vocantur.' tions,' and s. vv. d Inst. i. 2, 2; (2) As a rule, however, the distinction between. obligationes civiles and naturales relates to the efficacy of the obligations, so that civilis obligatio is every one that has to be made good by an actio, is actionable or perfect; whilst obligatio (tantum) naturalis is an imperfect obligation deprived of an actio, but otherwise in various ways juristically operative in contrast with obligations fully inoperative, whether ipso iure' or 'ope exceptionis.' § 128, ad init. Iul. Naturales obligationes non eo solo aestimantur, si actio aliqua earum nomine competit, verum etiam cum soluta pecunia repeti non potest: nam licet minus proprie debere dicantur naturales debitores, per abusionem intelligi с 1 Now the chief division of all actions is reduced to two classes; for they are either Civil or Praetorian. Civil are such as either are founded upon statutes, or at least are recognised by the Civil Law. Praetorian are such as the Praetor has created by virtue of his jurisdiction; they are also called Magisterial. N N |