9. De pecunia autem constituta cum omnibus agitur, quicumque vel pro se vel pro alio soluturos se constituerint, nulla scilicet stipulatione interposita. Nam alioquin si stipulanti promiserint, jure civili te

nentur.

9. The actio de constituta pecunia may be brought against any person who has engaged to pay money, either for himself or another, that is, without having made a stipulation; for, if he has promised a stipulator, he is bound by the civil law. D. xiii. 5. 14. 3.

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 mutuum, i.e. things quæ 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 ideo adversus patrem dominumve comparavit prætor, quia licet ex contractu filiorum servorumve ipso jure non teneantur, æquum tamen esset, peculio tenus, quod veluti patrimonium est filiorum filiarumque, item servorum, condemnari eos.

10. The prætor has introduced actions de peculio against fathers and masters, because, although they are not, according to the civil law, bound by the contracts of their children and slaves, yet they ought in equity to be bound to the extent of the peculium, 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 adversario juraverit, deberi sibi pecuniam, quam peteret, neque ei solvatur, justissime accommodat ei talem actionem, per quam non illud quæritur, an ei pecunia debeatur, sed an juraverit.

11. Also, if any one, when called upon by his adversary, makes oath that the debt which he sues for is due and unpaid, the prætor most justly grants him an action, in which the inquiry is not whether the debt is due, 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. Poenales quoque actiones prætor bene multas ex sua jurisdictione introduxit: veluti adversus eum, qui quid ex albo ejus corrupisset: et in eum, qui patronum vel parentem in jus vocasset, cum id non impetrasset item adversus eum, qui vi exemerit eum, qui in jus vocaretur, cujusve dolo alius exemerit: et alias innumerabiles.

12. The prætor has also introduced very many penal actions by virtue of his jurisdiction. As, for instance, against a person who has damaged any part of the prætor's album; against those who summon patron or ascendant without obtaining previous permission; against those who carry away by force any one summoned to appear before a magistrate, or fraudulently induce a third person to carry him off; and very many other actions.

GAI. 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. (GAI. 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, quales sunt, per quas real actions; such are those by which

quæritur, an aliquis liber vel an libertus sit, vel de partu agnoscendo. Ex quibus fere una illa legitimam causam habet, per quam quæritur, an aliquis liber sit : ceteræ ex ipsius prætoris jurisdictione substantiam capiunt.

it is inquired whether a man is born free, or has been made free; whether he is a slave, or whether he is the offspring of his reputed father. But of these, that alone by which it is inquired whether a man is free, belongs to the civil law. The others spring from the prætor's jurisdiction.

GAI. iv. 44; C. viii. 47. 9.

The object of a præjudicialis 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 particular 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 (GAI. 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 actionibus, certum est, non posse actorem rem suam ita ab aliquo petere 'si paret eum dare oportere : nec enim quod actoris est, id ei dari oportet, quia scilicet dari cuiquam id intellegitur, quod ita datur, ut ejus fiat, nec res, quæ jam actoris est, magis ejus fieri potest. Plane odio furum, quo magis pluribus actionibus teneantur, effectum est, ut extra poenam dupli aut quadrupli rei recipiendæ nomine fures etiam hac actione teneantur 'si paret eos dare oportere,' quamvis sit adversus eos etiam hæc

14. Actions being thus divided, it is certain that a plaintiff cannot sue for his own property by such a formula as this, If it appears that the defendant ought to give.' For it is not a duty to give the plaintiff that which is his own. To give a thing is to transfer the property in it, and that which is already the property of the plaintiff cannot belong to him more than it does already. However, to show detestation for thieves, and to make them liable to a greater number of actions, it has been determined, 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.

GAI. 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 his 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 pœnalis (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 quidem actiones vindicationes: in personam vero actiones, quibus dare facere oportere intenditur, condictiones. Condicere enim est denuntiare prisca lingua: nunc vero abusive dicimus condictionem actionem in personam, qua actor intendit, dari sibi oportere nulla enim hoc tempore eo nomine denuntiatio fit.

15. Real actions are called vindications; and personal actions, in which it is maintained that something ought to be done or given, are called condictions; for condicere, in old language, meant the same as denuntiare; and it is improperly that condiction is now used as the name of the personal action, by which the plaintiff contends 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 quædam actiones rei persequendæ gratia comparatæ sunt, quædam pœnæ persequendæ, quædam mixtæ

sunt.

16. Actions may be next divided into actions given to recover the thing, actions given to recover a penalty, and mixed actions.

GAI. 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 (mixta) in which both these objects were united.

17. Rei persequendæ causa comparatæ sunt omnes in rem actiones. Earum vero actionum, quæ in personam sunt, hæ quidem, quæ ex contractu nascuntur, fere omnes rei persequendæ causa comparatae videntur: veluti quibus mutuam pecuniam vel in stipulatum deductam petit actor, item commodati, depositi, mandati, pro socio, ex empto, vendito, locato, conducto. Plane si depositi agatur eo nomine, quod tumultus, incendii, ruinæ, naufragii causa depositum sit, in duplum actionem prætor reddit, si modo cum ipso, apud quem depositum sit, aut cum herede ejus ex dolo ipsius agitur: quo casu mixta est actio.

17. For the recovery of the thing are given all real actions; and of personal actions almost all those which arise from contract, as the action for a sum lent or stipulated for, a commodatum, a deposit, a mandate, a partnership, a sale, or a letting on hire. But, no doubt, when the action on a deposit is brought for a thing deposited by reason of a riot, a fire, the fall of a building, or a shipwreck, the prætor gives the action for the double of the value of the thing deposited, provided the suit is brought against the depositary himself, or against his heir, if personally guilty of dolus malus, in which case the action is mixed.

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 proditæ actiones aliæ tantum pœnæ persequendæ causa comparatæ sunt, aliæ tam pœnæ quam rei persequendæ et ob id mixtæ sunt. Poenam tantum persequitur quis actione furti; sive enim manifesti agatur quadrupli sive nec manifesti dupli, de sola pœna agitur: nam ipsam rem propria actione persequitur quis, id est suam esse petens, sive fur ipse eam rem possideat, sive alius quilibet: eo amplius adversus furem etiam condictio est rei.

18. Actions arising from a delict are either for the penalty only, or both for the thing and the penalty, which makes them mixed. But, in an action of theft, nothing more is sued for than the penalty; whether, as in manifest theft, the quadruple, or, in theft not manifest, the double, is sued for, the owner recovers the thing itself by a separate action, by claiming it as proprietor, whether it is in the possession of a thief or of any one else. He may also bring against the thief a condiction for the thing.

GAI. 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, three, 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, poena au- thing taken is included under the