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tem tripli est. Sed et legis Aquiliæ quadruple value to be recovered by actio de damno mixta est, non solum the action ; and thus the penalty is si adversus infitiantem in duplum but triple. The action introduced by agatur, sed interdum et si in sim- the lex Aquilia, for wrongful damage, plum quisque agit. Veluti si quis is also a mixed action; not only when hominem claudum aut luscum occi- brought for double value against a derit, qui in eo anno integer et magni man denying the fact, but sometimes pretii fuerit ; tanti enim damnatur, when the action is only for the single quanti is homo in eo anno plurimi value; for instance, if a man has killed fuerit, secundum jam traditam divi- a slave, who at the time of his death sionem. Item mixta est actio contra was lame, or wanted an eye, but within eos, qui relicta sacrosanctis ecclesiis the year, previous to his decease, was vel aliis venerabilibus locis legati free from any defect, and of great vel fideicommissi nomine dare dis- value, here, according to the distinctulerint usque adeo, ut etiam in tion previously laid down, the wrongjudicium vocarentur: tunc etenim doer is condemned to pay an amount et ipsam rem vel pecuniam, quæ representing the greatest value of the relicta est, dare compelluntur et slave within the year. The action is aliud tantum pro poena, et ideo in also mixed which is brought against duplum ejus fit condemnatio.
those who have delayed the payment of a legacy, or fideicommissum, left to our holy churches, or any other sacred place, until at last they have been summoned before a magistrate ; for then they are compelled to give the thing, or to pay the money left by the deceased, and in addition an equivalent thing or an equal sum, by way of penalty; and thus they are con
demned in a double amount. C. ix. 33. 1; D. ix. 2. 23. 3-6 ; C. i. 3. 46. pr. and 7.
whether it be the proper determ
Interdum et si in simplum. An action could be brought in simplum under the lex Aquilia, if the object of the action was not to determine whether the defendant had done the injury, but to fix the sum which would be the proper compensation for it. It could not be brought in simplum to determine the fact of the defendant having done the injury: for if he denied it, the action was in duplum; if he confessed it, there was no need of an action to prove what he confessed.
Sacrosanctis ecclesiis. The punishment had formerly been enforced in the case of all legacies in which a certain sum had been given per damnationem. (See Bk. iii. Tit. 27. 7.)
Dare distulerint. Formerly the punishment had only been inflicted in case of an absolute refusal of the legacy. (C. i. 3. 46. 7.)
The use in this paragraph of the word mixto in the sense of • brought at once to recover a thing and to enforce a penalty,' seems to have suggested the reference in the next paragraph to actions which were mixto in a very different sense, viz., both real and personal.'
20. Quædam actiones mixtam 20. Some actions are also mixed, as causam optinere videntur tam in being both real and personal ; as, for rem ,quam in personam. Qualis est instance, the action familiæ erciscundæ, familiæ erciscundæ actio, quæ com- brought between co-heirs for the parpetit coheredibus de dividenda here- tition of the inheritance ; the action ditate : item communi dividundo, de communi dividundo, between partquæ inter eos redditur, inter quos ners for the division of things held for aliquid commune ex quacumque any reason in common; also, the causa est, ut id dividatur : item action finium regundorum, between finium regundorum, quæ inter eos owners of contiguous estates. And, agitur, qui confines agros habent. in these three actions, the judge, folIn quibus tribus judiciis permittitur lowing the rules of equity, may give judici rem alicui ex litigatoribus ex any particular thing to any of the bono et æquo adjudicare et, si uniuis parties to the suit, and then condemn pars prægravari videbitur, eum him, if he seems to have an undue invicem certa pecunia alteri con- advantage, to pay the other a certain demnare.
sum of money.
These actions, though entirely personal, as being founded on obligations and brought against particular persons, are here said to seem in one aspect like real actions, because they involved an adjudicatio. Particular things were adjudged and given over to the parties. Even here, however, the analogy to real actions was not very complete, as real actions were always brought for some definite thing, ascertainable before the action was brought; but in the actions mentioned in the text, the thing to be adjudged was only ascertained by the action.
As to the formula in these actions, see Introd. sec. 103. In these actions no distinction can properly be made of plaintiff and defendant. Ulpian says, Mixto sunt actiones, in quibus uterque actor est.' (D. xliv. 7. 37. 1.) The judge discharged the function assigned him equally for the benefit of all persons interested in the subject-matter of the action.
21. Omnes autem actiones vel in 21. All actions are for the single, simplum conceptæ sunt vel in du- double, triple, or quadruple value; plum vel in triplum vel in quadru- beyond that no action extends. plum : ulterius autem nulla actio extenditur.
D. ii. 8. 3. We bave now the fourth division of actions, that, namely, according to the amount of the condemnation.
In actions which were in duplum, in triplum, or in quadruplum conceptæ, the intentio only contained an estimate of the single value, the amount of actual loss, and then in the condemnatio this was doubled, tripled, or quadrupled, as the case might be ; the word concepto, therefore, which properly refers to the intentio, is not very strictly used.
22. In simplum agitur veluti ex 22. The simple value is sued for ;] stipulatione, ex mutui datione, ex as, for example, in case of a stipulation, empto, vendito, locato, conducto, a loan, a sale, a letting on hire, a manmandato et denique ex aliis com- date, and in numberless other cases. I pluribus causis.
If a person stipulated that in a certain case his debtor should give him double or triple of the value of the sum owed, the action brought to enforce the stipulation would still be in simplum concepta. It would be the agreement, and not the action, which would double or triple the sum to be paid.
23. In duplum agimus veluti 23. The double value is sued for ; furti nec manifesti, damni injuriæ as, for example, in an action of theft ex lege Aquilia, depositi ex quibus- not manifest, of wrongful injury under dam casibus : item servi corrupti, the lex Aquilia, and, in certain cases, quæ competit in eum, cujus hortatu in an action of deposit. Also in an consiliove servus alienus fugerit aut action on account of the corruption of contumax adversus dominum factus a slave brought against him by whose est aut luxuriose vivere cæperit aut advice or instigation the slave has fled denique quolibet modo deterior from his master, has grown disobedient factus sit (in qua actione etiam towards him, become dissolute in his earum rerum, quas fugiendo servus habits, or been made in any manner abstulit, æstimatio deducitur): item worse ; and, in this action, an estimate ex legato, quod venerabilibus locis is also to be made of whatever things relictum est, secundum ea, quæ the slave has stolen from his master in supra diximus.
his flight. An action also for the detention of a legacy, left to a sacred place, is brought for double value, as
we have before stated. Gai. iii. 190 ; Gal. iv. 9. 171; D. xvi. 3. 1. 1; D. xi. 3. 1; C. i. 3. 46. 7.
Depositi ex quibusdam casibus, i.e. when made under the pressure of a sudden calamity. See note on par. 17.
24. Tripli vero, cum quidam 24. The triple value is sued for majorem veræ æstimationis quanti- when any person inserts in his statetatem in libello conventionis in- ment of demand a greater sum than is seruit, ut ex hac causa viatores, id due to him, so that the viatores, that is, est exsecutores litium, ampliorem the officers of suits, exact a larger sum suinmam sportularum nomine exi- as their fee. In this case the defendgerent: tunc enim quod propter ant may obtain from the plaintiff the eorum causam damnum passus fuerit triple value of the loss he has sustained reus, id triplum ab actore conse- by giving the fee, but the amount quetur, ut in hoc triplo et simplum, which, by being overcharged, he disin quo damnum passus est, connu- bursed is counted as one of the three meretur. Quod nostra constitutio sums in the triple value. This, a coninduxit, quæ in nostro codice fulget, istitution inserted in our code has ex qua dubio procul est ex lege established, on which constitution, condicticiam emanare.
without doubt, a statutory condiction
may be grounded. C. iii. 10. 2. 2.
In the old law there had been other actions in triplum, as those furti concepti and furti oblati. (Gal. iii. 191 ; see Tit. 1. 4 of this Book.) The action, of which Justinian speaks in this paragraph, had been substituted by him for the penalty of entirely losing all right of action, to which a plaintiff who sued for more than was due to him had been liable.
The libellus conventionis, in the system of civil process obtaining in the Lower Empire, was the notification of an action and its grounds delivered by a bailiff of the court (executor) to a defendant, who, on the receipt of it, had to give security for his appearance before the judex. It thus, in the extraordinaria judicia, replaced
the old vocatio in jus. Condictio ex lege is literally “a condiction under a statute. (See Introd. sec. 111.)
25. Quadrupli veluti furti mani- 25. The quadruple value is sued festi, item de eo, quod metus causa for; as, for example, in an action for factum sit, deque ea pecunia, quæ in manifest theft, in an action quod metus hoc data sit, ut is, cui datur, calum- causa, and an action relating to money niæ causa negotium alicui faceret given to any one to set on foot, or to vel non faceret : item ex lege con- desist from, a vexatious suit. The stadicticia a nostra constitutione oritur, tutory condiction is also for the quain quadruplum condemnationem im- druple value, which is established in ponens his exsecutoribus litium, qui our constitution against those officers contra nostræ constitutionis normam of suits who demand anything from a reis quidquam exegerint.
the defendant, contrary to the regula
tions of the constitution. Gai. iii. 189; D. iv. 2. 14. 1; D. iii. 6. 1; C. iii. 2. 4.
De ea pecunia quæ datur. Titius is bribed by some one to institute a vexatious suit, or he threatens to bring a vexatious suit, and the person he threatens pays him not to bring it. In either case an action in quadruplum lies against him.
26. Sed furti quidem nec mani- 26. But an action of theft not festi actio et servi corrupti a ceteris, manifest, and an action on account de quibus simul locuti sumus, eo dif- of a slave corrupted, differ from the fert, quod hæ actiones omnimodo others, which we have placed under dupli sunt: at illæ, id est damni in the same head, in that they are always juriæ ex lege Aquilia et interdum brought for double the value ; but the depositi, infitiatione duplicantur, in others, that is, the action given by the confitentem autem in simplum dan- lex Aquilia for a wrongful injury, and tur: sed illa, quæ de his competit, the action of deposit under pressure, quæ relicta venerabilibus locis sunt, are brought for the double value in non solum infitiatione duplicatur, case of denial ; but if the defendant sed et si distulerit relicti solutionem, confesses, the single value only can be usque quo jussu magistratuum nos recovered. In actions brought for trorum conveniatur, in confitentem things given to sacred places, double vero et antequam jussu magistra is recovered, not only on the denial of tuum conveniatur solventem simpli the defendant, but also on payment redditur.
being delayed until a magistrate orders an action to be brought; but it is the single value only that can be recovered, if the debt is acknowledged, and paid
before such an order is given. Gal. iv. 9. 171. 173 ; C. i. 3. 46. 7.
27. Item actio de eo, quod metus 27. The action quod metus causa causa factum sit, a ceteris, de quibus differs also from the other actions insimul locuti sumus, eo differt, quod cluded under the same head, because ejus natura tacite continetur, ut, qui it is tacitly implied in the nature of judicis jussu ipsam rem actori resti- this action, that a defendant, who, in tuat, absolvatur. Quod in ceteris obedience to the command of the casibus non ita est, sed omnimodo judge, restores the things taken, ought quisque in quadruplum condemna- to be acquitted ; in all the other actions, tur, quod est et in furti manifesti on the contrary, the defendant must actione.
always be condemned to pay the fourfold value, as, for instance, in the ac
tion of manifest theft. D. iv. 2. 14. 1. 4.
The actio quod metus causa was given to a person who had, while under constraint from the fear of actual or threatened violence, alienated anything, created real rights, or entered into an obligation. The action was, as the text informs us, arbitraria. (See Introd. sec. 106.)
28. Actionum autem quædam 28. Again, some actions are bons bonæ fidei sunt, quædam stricti juris. fidei, some are stricti juris. Of those Bonæ fidei sunt hæ: ex empto, ven- bonæ fidei there are the following :dito, locato, conducto, negotiorum the actions empti and venditi, locati gestorum, mandati, depositi, pro and conducti, negotiorum gestorum ; socio, tutelæ, commodati, pignerati- those brought on a mandate, deposit, cia, familiæ erciscundæ, communi partnership, tutelage, loan, or pledge ; dividundo, præscriptis verbis, quæ the action familiæ erciscundæ ; that de æstimato proponitur, et ea, quæ communi dividundo; the action præex permutatione competit, et heredi- scriptis verbis, arising from a commistalis petitio. Quamvis enim usque sion to sell at a fixed price, or an exadhuc incertum erat, sive inter change; and the demand of an inbonæ fidei judicia connumeranda sit heritance. For although it was, till sive non, nostra tamen constitutio recently, doubtful whether this last aperte eam esse bonæ fidei disposuit. action should be included among
those bonæ fidei, our constitution has clearly decided that it is to be included
among them. Gal. iv. 62; C. iii. 31. 12. 3.
We here enter on the fifth division of actions, that, namely, according to the powers given to the judge, and according to which they are divided into actiones bona fidei, actiones stricti juris, and actiones arbitrariæ.
In actions bonæ fidei, the words ex bona fide, or some equivalent expression, were permitted to be added to the formula, so that the intentio, which was always incerta, ran, quicquid dare, or facere, or prostare oportet ex bona fide. The actions in which this was permitted were all prætorian. Justinian here gives a list of them; and probably, though not quite certainly, the list is meant to be a complete one. The principal effects of this addition to the formula were :--(1) That all circumstances tending to show dolus malus were taken into consideration, without an exception doli mali being inserted. (D. xxx. 84. 5.) (2) Every assistance which the consideration of customs and common use could give to the determination of the particular question was permitted to affect the decision of the judge. (D. xxi. 1. 31. 20.) (3) The judge would notice any counter claims which the defendant might have arising out of the same set of circumstances which gave rise to the action of the plaintiff (Gal. iv. 63), and would provide for future contingencies, as, e.g., in an action pro socio, he met the case of one partner having taken on himself liabilities not as yet enforceable. (D. xvii. 2. 38. pr.) (4) And, lastly, interest was due on the thing withheld from the time it ought to have been given. (D. xxii. 1. 32. 2.)
In the actions stricti juris, the judge was obliged to adhere strictly to the principles of the civil law. Dolus malus, or counter