fuerit, vel si senatori ab humili injuria facta sit, aut parenti patronoque fiat a liberis vel libertis; aliter enim senatoris et parentis patronique, aliter extranei et humilis personæ injuria æstimatur. Nonnumquam et locus vulneris atrocem injuriam facit, veluti si in oculo quis percussus sit. Parvi autem refert, utrum patrifamilias an filiofamilias talis injuria facta sit: nam et hæc atrox æstimabitur.

sometimes from the quality of the person, as when it is a magistrate that has received the injury, or a senator has sustained it at the hands of a person of low condition, or an ascendant or patron at the hands of a child or freedman. For the injury done to a senator, an ascendant, or a patron is estimated differently from an injury done to a person of low condition or to a stranger. Sometimes it is the part of the body injured that gives the character of gravity to the injury, as if any one has been struck in the eye. Nor does it make any difference whether such an injury has been done to a paterfamilias or a filiusfamilias, for in the latter case also it is considered of a grave character.

GAI. iii. 225; D. xlvii. 10. 7, 8; D. xlvii. 8, 9. 1, 2.

If the injury was atrox, a freedman might bring an action against his patron, and the emancipated son against his father, but not otherwise. (D. xlvii. 10. 7. 3.) And the prætor himself, in cases of atrox injuria, when he gave the formula to the judge, fixed the maximum of the condemnation, and the judge would not condemn the defendant in a less sum. (GAI. iii. 224.)

10. In summa sciendum est, de omni injuria eum, qui passus est, posse vel criminaliter agere vel civiliter. Et si quidem civiliter agatur, æstimatione facta secundum quod dictum est, pœna imponitur. Sin autem criminaliter, officio judicis extraordinaria pœna reo irrogatur: hoc videlicet observando, quod Zenoniana constitutio introduxit, ut viri illustres quique supra eos sunt, et par procuratores possint actionem injuriarum criminaliter vel persequi vel suscipere secundum ejus tenorem, qui ex ipsa manifestius apparet.

10. Lastly, it must be observed, that in every case of injury he who has received it may bring either a criminal or a civil action. In the latter, it is a sum estimated as we have said that constitutes the penalty; in the former, the judge, in the exercise of his duty, inflicts on the offender an extraordinary punishment. We must, however, remark, that a constitution of Zeno permits men of the rank of illustris, or of any higher rank, to bring or defend by a procurator the actio injuriarum if brought criminally, as may be seen more clearly by reading the constitution itself.

D. xlvii. 10. 6; C. ix. 35. 11.

It was only as a very peculiar exception that criminal actions could, like private actions, be brought or defended through a procurator.

The viri illustres constituted the highest rank of the imperial officials such as the prætorian and urban prefects, the masters of the horse, and the seven ministers of the palace. (GIBBON, ch. 17.)

11. Non solum autem is injuriarum tenetur, qui fecit injuriam, hoc est qui percussit: verum ille quoque continebitur, qui dolo fecit vel qui

11. Not only is he liable to the actio injuriarum who has inflicted the injury, as, for instance, the person who has struck the blow; but he also

curavit, ut cui mala pugno percu- who has maliciously caused or conteretur. trived that any one should be struck in the face with the fist.

D. xlvii. 10, 11. 1.

12. Hæc actio dissimulatione aboletur: et ideo, si quis injuriam dereliquerit, hoc est statim passus ad animum suum non revocaverit, postea ex pœnitentia remissam injuriam non poterit recolere.

12. This action is extinguished by a person acting as if he had not received an injury; and, therefore, a person who has taken no account of the injury, that is, who immediately on receiving it has shown no resentment at it, cannot afterwards change his mind and resuscitate the injury he has allowed to rest.

D. xlvii. 10, 11. 1.

If the person injured, though expressing indignation at the time, did not take any steps towards enforcing reparation within a year, the action was extinct. (D. xlvii. 10. 17. 6; C. ix. 35. 5.) The action was personal to the person injured, and could not be transmitted to his heirs, unless before his death the action had already proceeded as far as the litis contestatio.

TIT. V. DE OBLIGATIONIBUS, QUÆ QUASI EX

DELICTO NASCUNTUR.

Si judex litem suam fecerit, non proprie ex maleficio obligatus videtur. Sed quia neque ex contractu obligatus est et utique peccasse aliquid intellegitur, licet per imprudentiam ideo videtur quasi ex maleficio teneri, et in quantum de ea re æquum religioni judicantis videbitur, poenam sustinebit.

If a judge makes a cause his own, he does not, properly speaking, seem to be bound ex maleficio; but as he is not bound ex contractu, and as he has, nevertheless, done a wrong, although perhaps only from ignorance, he seems to be bound as it were ex maleficio, and will be condemned to the amount which seems equitable to the conscience of the judge.

D. 1. 13. 6.

The Roman law characterised rather arbitrarily certain wrongful acts as delicts, and then, as there were many other wrongful acts which bound the wrongdoer to make reparation, and as it could not be said that the wrongdoer was bound ex delicto, he was said to be bound quasi ex delicto, i.e. there was an evident analogy between the mode in which the obligation arose from other kinds of wrongdoing and that in which it arose from the kinds of wrongdoing technically called delicts. The principle was exactly the same, but the particular act did not happen to be among those technically termed delicts. The first instance given is that of a judge qui litem suam fecerit, that is, who, through favour, corruption, or fear (D. v. 1. 15. 1), or even ignorance of law (licet per imprudentiam), gives a manifestly wrong sentence, and who thus makes the lis or suit to be sua, that is, affect himself by render

ing him responsible for the sentence. Gaius gives an example, in the case of a judge condemning a defendant in a sum different from that fixed in the formula. (GAI. iv. 52.)

The defendant might, if he pleased, instead of bringing an action against the judge, appeal from his decision (see Tit. 17. pr.); and in some cases, as when the judge had violated public law, or been corrupted, he might treat the decision as null, and commence the action afresh (D. xlix. 1. 5. 19); but his adversary might be insolvent, or his indignation, or many other reasons, might make him prefer suing the judge.

Ducaurroy points out that the distinction made between the seemingly parallel cases of an ignorant physician and an ignorant judge, the fault of the former being punished under the lex Aquilia, the latter being bound quasi ex delicto, arises from the injury of the physician being done to the body. The severity of the penalty against a judge who was merely ignorant of the law, is owing probably to the great checks against ignorance which the judge possessed if he pleased to avail himself of them in the advice of the prudentes,' whose business it was to assist him, and in the possibility of having recourse to the magistrate who had given the action to him.

6

1. Item is, ex cujus cœnaculo vel proprio ipsius vel conducto vel in quo gratis habitabat, dejectum effusumve aliquid est, ita ut alicui noceretur, quasi ex maleficio obligatus intellegitur: ideo autem non proprie ex maleficio obligatus intellegitur, quia plerumque ob alterius culpam tenetur aut servi aut liberi. Cui similis est is, qui ea parte, qua vulgo iter fieri solet, id positum aut suspensum habet, quod potest, si ceciderit, alicui nocere: quo casu pœna decem aureorum constituta est. De eo vero, quod dejectum effusumve est, dupli quanti damnum datum sit, constituta est actio. Ob

hominem vero liberum occisum quinquaginta aureorum pœna constituitur si vero vivet nocitumque ei esse dicetur, quantum ob eam rem æquum judici videtur, actio datur judex enim computare debet mercedes medicis præstitas ceteraque impendia, quæ in curatione facta sunt, præterea operarum, quibus caruit aut cariturus est ob id, quod inutilis factus est.

1. So, too, he who occupies, whether as proprietor, hirer, or gratuitously, an apartment, from which anything has been thrown or poured down, which has done damage to another, is said to be bound quasi ex maleficio, for he is not exactly bound ex maleficio, as it is generally by the fault of another, a slave, for instance, or a freeman, that he is bound. It is the same with regard to a person who, where there is a public way, keeps something placed or suspended, which may, if it fall, hurt any one; in this case, a penalty has been fixed of ten aurei. With respect to things thrown or poured down, an action is given for double the amount of the damage done; and if a freeman has been killed, there is a penalty of fifty aurei. If he is not killed, but only hurt, the action is given for the amount which the judge considers equitable under the circumstances; the judge ought to take into account the fees paid to the physician, and all the other expenses of the man's illness, as well as the employment which he has lost, or will lose, by being incapacitated.

D. xliv. 7. 5. 5; D. ix. 3. 5, 6; D. ix. 3. 1 ; D. ix. 3. 7.

The edict of the prætor, in the cases referred to in the text, is given, D. ix. 3. 1; and D. ix. 3. 5. 6.

The action given in each case was popularis, that is, any one might bring it, but in the case of a freeman being killed, his heirs or relations, if they brought an action, were preferred to strangers.

D. xliv. 7. 5. 5; D. v. 1. 15.

The filiusfamilias could be sued himself for delicts, but the father was not obliged to repair the injury done even to the extent of the son's peculium, which was only made to meet the contracts or quasi contracts of the son; but if a slave had done the injury, the master was always bound to repair the damage, or to abandon the slave. (See Tit. 8. 7.)

D. xliv. 7. 5, 6 ; D. ix. 3. 5. 13.

The action was for double the value of the thing damaged or lost. (D. xlvii. 5. 2.) The person injured might also, at his option, have an actio furti, or Aquilia, as the case might be, against the actual wrongdoer. (D. xlvii. 5.) This action was different from that given by the prætor against innkeepers and others for the restoration of things confided to them. (D. iv. 9.)

TIT. VI. DE ACTIONIBUS.

quam jus persequendi judicio, quod the right of suing before a judge for sibi debetur. that which is due to us.

D. xliv. 7. 51.

We now come to the last division of the Institutes, that which treats of actions and the subsidiary subjects of exceptions and interdicts. A sketch has been given in the Introduction (sec. 90-111) of the old legal actions, of the formulary system, and of the system of extraordinaria judicia, by which, long before the time of Justinian, the formulary system had been replaced. In treating of actions the Institutes make such constant reference to the formulary system, and generally to the prætorian law on the subject, that it is necessary, for the comprehension of this part of the Institutes, to set out with a knowledge of the law of actions while the formulary system prevailed. For a statement of the mode in which this system replaced the older actions, and of the scheme of the formula, the reader is referred to sections 98 to 106 of the Introduction. But it will be convenient to add here an outline of the principal divisions of actions under the prætorian system, and to connect these divisions with the corresponding paragraphs of this Sixth Title.

in

1. Actions in rem, personam. A main division of actions is that into real actions and personal actions, a division based on the difference in the thing which the plaintiff claims to be due. In a real action, the plaintiff claims that, as against all the world, a thing corporeal or incorporeal is his. The intentio of such an action ran-Si paret hominem ex jure Quiritium Auli Agerii esse. But under the formulary system every condemnation was in a sum of money. It was the value of the thing, not the thing, that was awarded; and so the condemnatio in a real action ranQuanti ea res erit, tantam pecuniam Numerium Negidium Aulo Agerio condemna; si non paret, absolve. Actions in rem were, however, as is explained below, arbitrariæ, i.e. the judge ordered the unsuccessful defendant to restore the thing, and, if he failed to do so, condemned him in the sum of money. This was supposed to meet all the circumstances of the case. It seems, too, that, at any rate in the time of Ulpian, if the thing being in the possession of the defendant was not restored according to the order, force was employed under the direction of the judge to put the plaintiff in possession of it. (D. vi. 1. 68; see note on paragr. 31.) In all actions, when a defendant did not pay, he was liable, under the legislation of Antoninus Pius, to have sufficient of his goods to meet the liability seized and sold. (D. xlii. 1. 31.) (As to modes of execution see Introd. sec. 108, 111.)

A personal action was one in which the plaintiff claimed that the defendant should give, do, or make good something to or for him-Cum intendimus dare, facere, præstare oportere. For præstare, as in the action of theft (GAI. iv. 37), the words damnum decidere, to make good the loss, were sometimes substituted. Con