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25° Injuria.

arborem ascenderet vel in puteum descenderet, et is ascendendo aut descendendo cecideri/, et aut mortuus fuerit aut aliqua parte corporis laesus sit. item si quis alienum servum de ponte aut ripa in flumen proiecerit et is suffocatus fuerit, tum hic corpore suo damnum dedisse eo quod proiecerit, non difficiliter intelligi potest.

220. Iniuria autem committitur non solum cum quis pugno pulsa/«j aut fuste percussus vel etiam verberatus erit, sed et si cui convicium factum fuerit, sive quis bona alicuius quasi debitoris sciens eum nihil debere sibi proscripserit, sive quis ad infamiam alicuius libellum aut carmen scripserit, sive quis matremfamiliar aut praetextatum adsectatus fuerit, et denique aliis pluribus modis. (221.) Pati autem iniuriam videmur non solum per nosmet ipsos, sed ttiam per liberos nostros quos in

in going up or down he have fallen, and either been killed or injured in some part of his body. So also if a man have thrown another person's slave from a bridge or bank into a river and he have been drowned, it is plain enough that he has caused the damage with his body inasmuch as he cast him in.

220. Injury1 is inflicted not only when a man is struck with the fist, or beaten with a stick or lashed, but also when abusive language* is publicly addressed to any one, or when any person knowing that another owes him nothing advertises3 that othefs goods for sale as though he were a debtor, or when any one writes a libel or a song to bring disgrace on another, or when any one follows about a married woman or a young4 boy, and in fact in many other ways. 221. We can suffer injury not only in our own persons but also in the persons of our children whom we have in orxr potestas; and so

1 For the different significations addressed to a man publicly, or the of the word injuria see Justinian, act of inciting a crowd to beset a lv. 4. pr., a passage which is in great man's house or to mob the man himmeasure borrowed from Paulus. self.

2 An explanation of the word con- 3 Sc. obtains from the Praetor an vicium is given by Ulpian in D. 47. order for possession and leave to ad10. 15. 4: "Convicium autem dici- vertise, by making false representatur vel a concitatione vel a conventu, tions to that magistrate.

hoc est, a collatione vocum, quum 4 Praetextatus signifies under the

enim in unum complures voces age of puberty, as at the age of four

conferuntur, convicium appellatur, teen the toga virilis was assumed and

quasi convocium." Hence convi- the toga praetextata discarded. cium means either abusive language

Penalty for Injuria. 25«

potestate habemus; item per uxores nostras quamvis in manu nostra non sint. itaque si veluti filiae meae quae Titio nupta est iniuriam feceris, non solum filiae nomine tecum agi iniuriarum potest, verum etiam meo quoque et Titii nom/nc (222.) Servo autem ipsi quidem nulla iniuria intelligitur fieri, sed domino per eum fieri videtur: non tamen iisdem modis quibus etiam per liberos nostros vel uxores, iniuriam pati videmur, sed ita, cum quid atrocius commissum fuerit, quod aperte in contumeliam domini fieri videtur, veluti si quis alienum servum verberaverit ; et in hunc casum formula proponitur. at si quis servo convicium fecerit vel pugno eum percusserit, non proponitur ulla formula, nec temere prtenti datur.

223. Poena autem iniuriarum ex legi xii tabular«w propter membrum quidem ruptum talio erat; propter os vero fractum aut co/lisum trecentorum assium poena erat statuta, si libero os fractum erat; at si servo, Cl. propter ceteras vero iniurias xxv

too in the persons of our wives, even though they be not in our manus. For example then, if you do an injury to my daughter who is married to Titius, not only can an action for injuries be brought against you in the name of my daughter, but also one in my name, and one in that of Titius. 222. To a slave himself it is considered that no injury can be done, but it is regarded as done to his master through him: we are not, however, looked upon as suffering injury under the same circumstances (through slaves) as through our children or wives, but only when some atrocious act is done, which is plainly seen to be intended for the insult of the master, for instance when a man has flogged the slave of another, and a formula is set forth1 to meet such a case. But if a man have used abusive language to a slave in public or struck him with his fist, no formula is set forth, nor is one granted to a demandant except for good reason*.

223. By a law of the Twelve Tables3 the penalty for injuries was like for like in the case of a limb destroyed ; but for a bone broken or crushed a penalty of 300 asses was appointed, if the sufferer were a free man, and 150 if he were a

1 Sc. in the edict . unless there be some special circum

'That is to say he has neither an stances of aggravation.

action framed on any known formula, s Tab. vi11. IL 2, 3, and 4.

nor even one "praescriptis verbis,"

252 Atrox lnjuria.

assium poena erat constituta. et videbantur illis teraporibus in magna paupertate satis idoneae istae pecuniae poenae esse. (224.) Sed nunc alio iure utimur. permittitur enim nobis a Praetore z^>s/s iniuriam aestimare; et iudex vel tanti condemnat quanti nos aestimaverimus, vel minoris, pro«/ illz visam fuerit. sed cum atrocem iniuriam Praetor aestimare soleat, si simul constituerit quantae pecuniae nomine fieri debeat vadimonium, hac ipsa quantitate taxamar formulam, et iudex quamvis possit vel minoris damnare, plerumque tamen propter ipsius Praetoris auctoritatem non audet minuere condemnationem. (225.) Atrox autem iniuria aestimatur vel ex facto, velut si quis ab aliquo vulneratus aut verberatus fustibusve caesus fuerit; vel ex loco, velut si cui in theatro aut in foro iniuria facta sit; vel ex persona, velut si magistratus iniuriam passus fuerit, vel senatoribus ab humili persona facta sit iniuria.

slave. For all other injuries the penalty was set at 25 asses. And these pecuniary penalties appeared sufficient in those times of great poverty. 224. But now-a-days we follow a different rule, for the Praetor allows us to assess our injury for ourselves: and the judex awards damages either to the amount at which we have assessed or to a smaller amount, according to his own discretion. But in cases where the Praetor accounts an injury "atrocious," if he at the same time have settled the amount of vadimonium1 which is to be given, we limit" theformula to this quantity, and although the judex can award a smaller amount of damages, yet generally, on account of the respect which is due to the Praetor, he dare not make his award smaller than the condemnatio3. 225. Now an injury is considered " atrocious" either from thecharacter of the act, for instance, if a man be wounded, or flogged, or beaten with sticks by another; or from the place, for instance, if the injury be done in the theatre or the forum; or from the person, for instance, if a magistrate have suffered the injury, or it have been inflicted by a man of low rank on a senator.

1 iv. 184. » iv. 51. » iv. 39, 43.

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Superest, ut de actionibus loquamur.

I. Siquaeritur, quot genera actionum sint, verius videtur duo esse: in rem et in personam, nam qui nil esse dixer«n/ ex sponsionum generibus, non animadverterunt quasdam species actionum inter genera se rettulisse. (2.) In personam actio est

1. It now remains for us to speak of actions. If it be asked how many classes of actions there are, the more correct answer is that there are two, those in rem and those in personam1: for they who have asserted that there are four, framed on the different classes of sponsiones', have not noticed the fact that some individual kinds of actions unite together and

1 It is thought better to keep the terms in rem and in personam, than to employ the apparent English equivalents " real" and "personal," for though "personal" may, and frequently does, closely correspond with the Roman term in personam, real never does with in rem. See Savigny, Syst. des hent. Rom. recht., translated into French by Gue'noux, Traiti de dr. Rom. v. §207, P- 44- Austin,Vol. III. p. 215 (Vol. II. p. 1011, third edition).

3 Sponsiones belong to the time of the formulary method of suit, therefore the explanation now given of them will hardly be intelligible to a reader who is not acquainted, at least in outline, with the nature of the formulae, which is discussed somewhat later in this book.

When a controversy was raised on any point, whether of fact or of law, one of the'litigants might

challenge the other in a wager {sponsion "ni ita esset," i. e. that if it were as the challenger asserted, the challenged should pay him some amount specified: and generally, but not always, there was a restipulatio or counter-wager, that if it were not as the challenger stated, the challenger should pay the same amount to the challenged.

The origin of these sponsiones is referred by Heffter to a period subsequent to the passing of the Lex Silia (IV. 13), which brought into use the condiction de pecunia certa credita, for it is evident that by the introduction of a sponsio an obligation of any kind whatever might be turned into an equivalent pecuniary engagement, and so be sued upon under that Lex.

The notion of the wager was obviously derived from the old actio

254 Actions in personam and in rem.

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 corperalem rem intendimus nostram esse, aut /us aliquod nobis cowpetere, velut utend/, aut utendi fruend/, «rtidi, agendi, aquamve ducendi, vel altius tollendi w?//rospiciendi. item actio ex diverso adversario est negativa.

4. Sic itaque discretis actionibus, certum est non posse nos

form themselves into classes1. 2. The action in personam is the one we resort to whenever we sue some person, who has become bound to us either upon a contract or upon a delict, that is, when we assert in the intentio* that he ought to give or do something, or perform some duty. 3. The action is one in rem, when in the intentio we assert either that a corporeal thing is ours, or that some right belongs to us, as, for example, that of usus3 or usufruct, of way, of passage for cattle, of conducting water, of raising one's buildings, or of view and prospect. So on the other hand the opposite party's action is (also in rem, but) negative*.

4. Actions, therefore, being thus classified, it is certain that

sacramenti, but, as Gaius observes, Heffier defesds his introduction of

there was a difference between the the fourth class by saying that the

two, for the sum of the sponsio or words of Gaius only state that there

restipulatio went to the victorious were four classes of actions distin

litigant, whilst that of the sacra- guished by their various connection

mentum was forfeited to the state. (or want of connection) with spon

Heffter thinks the "four kinds sions, and not that all classes of

of actions framed on the various necessity contained a sponsion, classes of sponsions" were: See Heffter's Observations on Gai.

(1) Actions in rem with a sponsion IV. pp. 86—89.

propraede litis d vindiciarum, l For example, (taking Heffter's

and without a restipulation classification in the last note,) actions

(see IV. 16). in rem pro praede litis et vindiciarum

(2) Actions in personam for money are not a separate genus, but only a lent or promised, with a spon- species comprised in the genus, actions sion and a restipulation calum- in rem.

niae causa (see IV. 178). 2 IV. 41.

(3) Actions of any kind, where 3 Usus is not treated of by Gaius, the proper matter was con- but a discussion of it is to be found verted into a pecuniary sum by in Just. Inst. II. 5.

the introduction of a sponsion, * That is, the opponent in his in

and wherein there was also tenth alleges that these rights do not

a restipulation. belong to the claimant. Cf. Just.

(4) Actions in rem or in personam Inst. iv. 6. 2, with Sandars' note without a sponsion attached. thereon, and D. 8. 5. 2. pr.

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