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9. De pecunia autem constituta 9. The actio de constituta pecunia cum omnibus agitur, quicumque vel may be brought against any person pro se vel pro alio soluturos se con- who has engaged to pay money, either stituerint, nulla scilicet stipulatione for himself or another, that is, withinterposita. Nam alioquin si stipu- out having made a stipulation ; for, if lanti promiserint, jure civili te- he has promised a stipulator, he is nentur.

bound by the civil law. D. xiii. 5. 14. 3.

nary od enough ptitia. ayment of recipe

The actio de constituta pecunia was an action by which the prætor enforced a mere pact or agreement (not a stipulation, for then the action would have been ex stipulatu) by which a person promised again what he already owed, or promised what another owed, fixing the time for payment. This agreement (constitutum) did not operate as a novation, and was enforced as subsidiary to the main contract. The actio de constituta pecunia could only be brought within a year, and only applied to things which could form the subject of a inutuum, i.e. things quo numero, pondere, mensurave constant. The pecunia was said to be constituta because it was agreed to be paid on a particular day. The actio receptitia was an action given against bankers (argentarii) who promised to satisfy the demands of a creditor of one of their customers. This creditor was said recipere diem, to have a day fixed by the banker for payment of his claim, and hence the action was called receptitia. The mere promise of the banker was considered enough to ground an action on, an exception to the ordinary rules of the civil law which must have grown out of the peculiar character of a banker's business. What the civil law confined to bankers only the prætor extended to every one alike; and whenever any one, who owed a debt to another or had funds of another in his hand, promised to pay the money owed by or deposited with him on a particular day, the prætor gave the action de constituta pecunia to enforce the fulfilment of the promise.

Justinian abolished the actio receptitia, and invested the actio de constituta pecunia with privileges which had before belonged exclusively to the actio receptitia; for he made it perpetual, and he allowed it to be brought whatever was the nature of the thing promised. (C. iv. 18. 2.)

The pact to pay might be advantageous to the creditor, if it was the debt of another that was agreed to be paid, or if the antecedent obligation was only a natural one, or if the time in which the original debt could be sued on was on the point of expiring.

10. Actionem autem de peculio 10. The prætor has introduced ideo adversus patrem dominumve actions de peculio against fathers and comparavit prætor, quia licet ex masters, because, although they are contractu filiorum servorumve ipso not, according to the civil law, bound jure non teneantur, æquum tamen by the contracts of their children and esset, peculio tenus, quod veluti pa- slaves, yet they ought in equity to be trimonium est filiorum filiarumque, bound to the extent of the peculium, item servorum, condemnari eos. which is a kind of patrimony of sons

and daughters, and of slaves. D. xv. 1. 47. 6.

Actions de peculio are treated of in par. 4 of next Title.

11. Item si quis postulante arl. 11. Also, if any one, when called versario juraverit, deberi sibi pecu- upon by his adversary, makes oath niam, quam peteret, neque ei solva- that the debt which he sues for is due tur, justissime accommodat ei talem and unpaid, the prætor most justly actionem, per quam non illud quæ- grants him an action, in which the ritur, an ei pecunia debeatur, sed an inquiry is not whether the debt is due, juraverit.

but whether the oath has been made. D. xii. 2. 3. 5. 2.

Either party might challenge the other to swear to the truth of his statement. This might be done out of court, and if the party challenged took the oath, his statement could no longer be impugned by the person who had challenged him. For instance, if the creditor, being challenged, swore that the debt was due, the debtor was obliged to pay. The only question, therefore, which could be subsequently referred to a court of justice was whether the oath had or had not been taken, inquiry into which circumstance was made under an actio in factum given by the prætor.

12. Pænales quoque actiones præ- 12. The prætor has also introduced tor bene multas ex sua jurisdictione very many penal actions by virtue of introduxit: veluti adversus eum, qui his jurisdiction. As, for instance, quid ex albo ejus corrupisset : et in against a person who has damaged eum, qui patronum vel parentem in any part of the prætor's album ; against jus vocasset, cum id non impetras- those who summon patron or ascendant set : item adversus eum, qui vi ex- without obtaining previous permission; emerit eum, qui in jus vocaretur, against those who carry away by force cujusve dolo alius exemerit: et alias any one summoned to appear before innumerabiles.

a magistrate, or fraudulently induce a third person to carry him off; and very

many other actions. Gal. iv. 46.

The album was the tablet suspended in the forum, containing the ordinances of the prætor. Any attempt to injure or deface it was punished by an action de albo corrupto. (D. ii. 1. 7. pr.)

The descendant or freedman who summoned before a magistrate (in jus) his ascendant or patron without the permission of the prætor, was liable to an action termed de parente aut patrono in jus vocato. (Gal. iv. 46.)

The actio de in jus vocato vi exempto was given against a person who rescued with violence any one who, after disobeying a notice to appear in jure, was being forcibly conveyed before the magistrate. The penalty was a sum equivalent to that which the plaintiff would have received from the action he had commenced against the person rescued, while this person rescued remained still liable to the action he had been summoned to answer. The actions under all the heads mentioned in this paragraph were in factum. (D. ii. 7. 5. 1.)

| 13. Præjudiciales actiones in rem 13. Prejudicial actions seem to be esse videntur, qualts sunt, per quas real actions ; such are those by which

quæritur, an aliquis liber vel an it is inquired whether a man is born libertus sit, vel de partu agnoscendo. free, or has been made free ; whether Ex quibus fere una illa legitimam he is a slave, or whether he is the offcausam habet, per quam quæritur, spring of his reputed father. But of an aliquis liber sit : ceteræ ex ipsius these, that alone by which it is inprætoris jurisdictione substantiam quired whether a man is free, belongs capiunt.

to the civil law. The others spring

from the prætor's jurisdiction. Gai. iv. 44; C. viii. 47. 9.

The object of a prajudicialis actio was to ascertain a fact, the establishing of which was a necessary preliminary to further judicial proceedings. (See Introd. sec. 104.) Such actions differ from actions in rem, because in an actio præjudicialis no one is condemned, only the fact is ascertained; but they are said in the text to resemble actions in rem, because they were not brought on any obligation, and because in the intentio, which indeed composed the whole formula in this case, no mention was made of any particuiar person against whom the action was directed.

Questions of status, such as those of paternity, filiation, patronage, and the like, were most commonly the subjects of actiones præjudiciales, but were by no means the only ones. We hear of others, such as quanta dos sit (Gal. iv. 44); an res de qua agitur major sit centum sestertiis; an bona jure venierint. (D. xlii 5. 30.)

The liberalis causa, the suit in which the status of a supposed slave was ascertained, was originally nothing else but a vindicatio. The person called the assertor libertatis claimed him, and the master of the slave defended his possession. If the decision was in favour of the assertor, it was still open to another person to attempt to prove that the subject of the suit was really a slave; if the decision was in favour of the master, another assertor could bring a fresh suit; but there could only be three assertores in all. If the supposed slave was thrice adjudged a slave, his status could be no further questioned. Justinian entirely altered the action, by allowing the slave himself to claim his liberty, and making the first decision final. (C. vii. 16.)

14. Sic itaque discretis actioni- 14. Actions being thus divided, it bus, certum est, non posse actorem is certain that a plaintiff cannot sue rem suam ita ab aliquo petere "si for his own property by such a forparet eum dare oportere :' nec enim mula as this, 'If it appears that the quod actoris est, id ei dari oportet, defendant ought to give.' For it is quia scilicet dari cuiquam id intel- not a duty to give the plaintiff that legitur, quod ita datur, ut ejus fiat, which is his own. To give a thing is nec res, quæ jam actoris est, magis to transfer the property in it, and that ejus fieri potest. Plane odio furum, which is already the property of the quo magis pluribus actionibus tene- plaintiff cannot belong to him more antur, effectum est, ut extra panam than it does already. However, to dupli aut quadrupli rei recipiendæ show detestation for thieves, and to nomine fures etiam hac actione te- make them liable to a greater number neantur 'si paret eos dare oportere,' of actions, it has been determined, quamvis sit adversus eos etiam hæc that besides the penalty of double or

in rem actio, per quam rem suam quadruple the amount taken, they quis esse petit.

may, for the recovery of the thing taken, be subjected to the action, 'If it appear that they ought to give;' although the party injured may also bring the real action against them, by which the plaintiff demands the thing

as proprietor. Gal. iv. 4.

We have already seen (Tit. 1. 19) that the plaintiff might benefit by being allowed to bring a personal instead of a real action, as the things taken might have perished. But why should the condictio be so shaped as described in the text? The reason was this: the plaintiff, by being allowed to frame bis action with the word dare, which was technically wrong, as this implied to transfer the full ownership, whereas the plaintiff remained the owner of the thing stolen, had the advantage, under the formulary system, of recovering the sponsio penalis (Gai. iv. 171), or wager of one-third of the value of the thing, which was added to a condictio certi. (See Introd. sec. 99.)

15. Appellamus autem in rem 15. Real actions are called vindicaquidem actiones vindicationes : in tions ; and personal actions, in which personam vero actiones, quibus dare it is maintained that something ought facere oportere intenditur, condic- to be done or given, are called condictiones. Condicere enim est denun- tions ; for condiceré, in old language, tiare prisca lingua : nunc vero abu- meant the same as denuntiare ; and it sive dicimus condictionem actionem is improperly that condiction is now in personam, qua actor intendit, used as the name of the personal ac

dari sibi oportere : nulla enim hoc tion, by which the plaintiff contends i tempore eo nomine denuntiatio fit. that something ought to be given to

him, for there is no denuntiatio now

actually in use. Gai. iv. 5. 18.

Gaius says, actor adversario denuntiabat, ut ad judicem capiendum die xxx. adesset' (iv. 18). Thus the proper meaning of condictio is the appointing of a day.

16. Sequens illa divisio est, quod 16. Actions may be next divided quædam actiones rei persequendæ into actions given to recover the thing, gratia comparatæ sunt, quædam actions given to recover a penalty, and poenæ persequendæ, quædam mixtæ mixed actions. sunt.

Gal. iv. 6.

We now come to the third division of actions, that, namely, according to the object for which they were brought; they were divided under this head into three classes—those in which it was sought to get a thing, rei persecutoriæ, including all real actions and all personal actions, except those in which something beyond the simple value was recovered, those in which it was sought to enforce a penalty, and those (mixto) in which both these objects were united.

17. Rei persequendæ causa com- 17. For the recovery of the thing! paratæ sunt omnes in rem actiones. are given all real actions; and of perEarum vero actionum, quæ in per- sonal actions almost all those which sonam sunt, hæ quidem, quæ ex arise from contract, as the action for a contractu nascuntur, fere omnes rei sum lent or stipulated for, a commodapersequendæ causa comparatæ vi- tum, a deposit, a mandate, a partnerdentur: veluti quibus mutuam pe- ship, a sale, or a letting on hire. But, cuniam vel in stipulatum deductam no doubt, when the action on a deposit petit actor, item commodati, depo- is brought for a thing deposited by siti, mandati, pro socio, ex empto, reason of a riot, a fire, the fall of a vendito, locato, conducto. Plane building, or a shipwreck, the prætor si depositi agatur eo nomine, quod gives the action for the double of the tumultus, incendii, ruinæ, naufragii value of the thing deposited, provided causa depositum sit, in duplum ac- the suit is brought against the depositionem prætor reddit, si modo cum tary himself, or against his heir, if peripso, apud quem depositum sit, aut sonally guilty of dolus malus, in which cum herede ejus ex dolo ipsius agi- case the action is mixed. tur: quo casu mixta est actio.

Gai. iv. 7 ; D. xvi. 3. 1. 1-4; D. xvi. 3. 18.

The action against a fraudulent depositary was not in duplum, unless the depositor had been forced by fire, shipwreck, the fall of a building, or other sudden calamity, to make the deposit. If, without being so forced, he had selected the depositary, then the action was only for the single value. It was his own fault not to have chosen an honester man. (See Bk. iii. Tit. 13. 3.)

18. Ex maleficiis vero prodita 18. Actions arising from a delict actiones aliæ tantum pænæ perse are either for the penalty only, or both quendæ causa comparatæ sunt, aliæ for the thing and the penalty, which

et ob id mixtæ sunt. Penam tan- of theft, nothing more is sued for than! tum persequitur quis actione furti ; the penalty; whether, as in manifest sive enim manifesti agatur quadru- theft, the quadruple, or, in theft not pli sive nec manifesti dupli, de sola manifest, the double, is sued for, the pæna agitur: nam ipsam rem pro- owner recovers the thing itself by a pria actione persequitur quis, id est separate action, by claiming it as prosuam esse petens, sive fur ipse eam prietor, whether it is in the possession rem possideat, sive alius quilibet: of a thief or of any one else. He may eo amplius adversus furem etiam also bring against the thief a condiction condictio est rei.

for the thing. Gal. iv. 8. 3; D. xiii. 1. 7. 1.

Persons who suffered from crimes had a private action against the wrongdoer for compensation, quite apart from, and independent of, the prosecution of the offender for his outrage on the laws of society. There was, indeed, something more than an exact compensation enforced by the private actions; for, by way of penalty, the defendant had often to pay two, threo, or four times the amount of loss actually sustained, and also to give back the thing or its value; but still this penalty was given as a punishment for the injury to the individual, and not as a punishment for the infraction of public law.

19. Vi autem bonorum raptorum 19. An action for goods taken by actio mixta est, quia in quadruplo force is a mixed action ; because the rei persecutio continetur, pcena au- thing taken is included under the

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