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Penalty for Injuria.

251

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 nomine. (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 petenti datur.

223. Poena autem iniuriarum ex lege XII tabularum propter membrum quidem ruptum talio erat; propter os vero fractum aut collisum trecentorum assium poena erat statuta, si libero os fractum erat; at si servo, CL. propter ceteras vero iniurias xxv

222.

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. 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 forth' 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 reason2.

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.

2 That is to say he has neither an action framed on any known formula, nor even one "praescriptis verbis,"

unless there be some special circumstances of aggravation.

3 Tab. VIII. ll. 2, 3, and 4.

assium poena erat constituta. et videbantur illis temporibus in magna paupertate satis idoneae istae pecuniae poenae esse. (224) Sed nunc alio iure utimur. permittitur enim nobis a Praetore ipsis iniuriam aestimare; et iudex vel tanti condemnat quanti nos aestimaverimus, vel minoris, prout illi visum fuerit. sed cum atrocem iniuriam Praetor aestimare soleat, si simul constituerit quantae pecuniae nomine fieri debeat vadimonium, hac ipsa quantitate taxamus 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 vadimonium' which is to be given, we limit the formula 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 the character 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.

2 IV. 5I.

3 IV. 39, 43

( 253 )

BOOK IV.

Superest, ut de actionibus loquamur.

1. Si quaeritur, quot genera actionum sint, verius videtur duo esse: in rem et in personam. nam qui I esse dixerunt ex sponsionum generibus, non animadverterunt quasdam species actionum inter genera se rettulisse. (2.) In personam actio est

I. 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 personam': 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 heut. Rom. recht., translated into French by Guénoux, Traité de dr. Rom. v. § 207, p. 44. Austin, Vol. III. p. 215 (Vol. II. p. 1011, third edition).

2 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 (sponsio) "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 ob viously derived from the old actio

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 form themselves into classes'. 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, there was a difference between the two, for the sum of the sponsio or restipulatio went to the victorious litigant, whilst that of the sacramentum was forfeited to the state.

Heffter thinks the "four kinds of actions framed on the various classes of sponsions" were:

(1) Actions in rem with a sponsion
pro praede litis et vindiciarum,
and without a restipulation
(see IV. 16).

(2) Actions in personam for money
lent or promised, with a spon-
sion and a restipulation calum-
niae causa (see IV. 178).
(3) Actions of any kind, where
the proper matter was con-
verted into a pecuniary sum by
the introduction of a sponsion,
and wherein there was also
a restipulation.
(4) Actions in rem or in personam
without a sponsion attached.

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rem nostram ab alio ita petere, SI PARET EUM DARE OPORTERE : nec enim quod nostrum est, nobis dari potest, cum solum id dari nobis intelligatur 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 EOS DARE OFORTERE, 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

we cannot sue another person for a thing that is ours in this form: "Should it appear that he ought to give it," for that cannot be given to us which is ours, inasmuch as that only can be looked upon as a gift to us, which is given for the express purpose of becoming ours; nor can a thing which is ours become ours more than it already is. But from a detestation of thieves, in order that they may be made liable to a greater number of actions, it has been settled that besides the penalty of double or quadruple the amount (of the thing stolen), thieves may, with the object of recovering the thing, also be made liable under the action running thus: "Should it appear that they ought to give the thing';" although there also lies against them the form of action whereby we sue for a thing on the ground that it is our own3. 5. Now actions in rem are called vindications, whilst actions in personam, wherein we assert that our opponent ought to give us something, or that something ought to be done by him3, are called condictions.

6. Sometimes the object of our action is to recover only the thing itself, sometimes only a penalty, sometimes both the thing and a penalty. 7. We sue for the thing only, as in actions

1 Sc. a condictio.

2 Sc. a vindicatio.

3 Savigny says that Dare, in the strict terminology of the formulary system, means to transfer property ex jure Quiritium; whilst Facere, on

the other hand, embraces every kind of act, whether juridical or not, and hence comprises, amongst other things, dare, solvere, numerare, ambulare, reddere, non facere, curare ne fiat. Cf. D. 50. 16. 175, 189, 218.

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