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tem tripli est. Sed et legis Aquiliæ actio de damno mixta est, non solum si adversus infitiantem in duplum agatur, sed interdum et si in simplum quisque agit. Veluti si quis hominem claudum aut luscum occiderit, qui in eo anno integer et magni pretii fuerit; tanti enim damnatur, quanti is homo in eo anno plurimi fuerit, secundum jam traditam divisionem. Item mixta est actio contra eos, qui relicta sacrosanctis ecclesiis vel aliis venerabilibus locis legati vel fideicommissi nomine dare distulerint usque adeo, ut etiam in judicium vocarentur: tunc etenim et ipsam rem vel pecuniam, quæ relicta est, dare compelluntur et aliud tantum pro pœna, et ideo in duplum ejus fit condemnatio.

quadruple value to be recovered by the action; and thus the penalty is but triple. The action introduced by the lex Aquilia, for wrongful damage, is also a mixed action; not only when brought for double value against a man denying the fact, but sometimes when the action is only for the single value; for instance, if a man has killed a slave, who at the time of his death was lame, or wanted an eye, but within the year, previous to his decease, was free from any defect, and of great value, here, according to the distinction previously laid down, the wrongdoer is condemned to pay an amount representing the greatest value of the slave within the year. The action is also mixed which is brought against 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 demned in a double amount.

C. ix. 33. 1; D. ix. 2. 23. 3-6; C. i. 3. 46. pr. and 7.

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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 mixte 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 mixta in a very different sense, viz., both real and personal.'

20. Quædam actiones mixtam causam optinere videntur tam in rem quam in personam. Qualis est familiæ erciscundæ actio, quæ com

20. Some actions are also mixed, as being both real and personal; as, for instance, the action familiæ erciscundæ, brought between co-heirs for the par

petit coheredibus de dividenda hereditate item communi dividundo, quæ inter eos redditur, inter quos aliquid commune ex quacumque causa est, ut id dividatur: item finium regundorum, quæ inter eos agitur, qui confines agros habent. In quibus tribus judiciis permittitur judici rem alicui ex litigatoribus ex bono et æquo adjudicare et, si unius pars prægravari videbitur, eum invicem certa pecunia alteri condemnare.

tition of the inheritance; the action de communi dividundo, between partners for the division of things held for any reason in common; also, the action finium regundorum, between owners of contiguous estates. And, in these three actions, the judge, following the rules of equity, may give any particular thing to any of the parties to the suit, and then condemn him, if he seems to have an undue advantage, to pay the other a certain sum of money.

D. x. 1. 2. 1; D. x. 1. 3; D. x. 2. 55.

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, 'Mixta 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 simplum conceptæ sunt vel in duplum vel in triplum vel in quadruplum ulterius autem nulla actio extenditur.

21. All actions are for the single, double, triple, or quadruple value; beyond that no action extends.

D. ii. 8. 3.

We have 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 concepta, therefore, which properly refers to the intentio, is not very strictly used.

22. In simplum agitur veluti ex stipulatione, ex mutui datione, ex empto, vendito, locato, conducto, mandato et denique ex aliis compluribus causis.

22. The simple value is sued for ; as, for example, in case of a stipulation, a loan, a sale, a letting on hire, a mandate, and in numberless other cases.

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 furti nec manifesti, damni injuriæ ex lege Aquilia, depositi ex quibusdam casibus item servi corrupti, quæ competit in eum, cujus hortatu consiliove servus alienus fugerit aut contumax adversus dominum factus est aut luxuriose vivere cœperit aut denique quolibet modo deterior factus sit (in qua actione etiam earum rerum, quas fugiendo servus abstulit, æstimatio deducitur): item ex legato, quod venerabilibus locis relictum est, secundum ea, quæ supra diximus.

23. The double value is sued for ; as, for example, in an action of theft not manifest, of wrongful injury under the lex Aquilia, and, in certain cases, in an action of deposit. Also in an action on account of the corruption of a slave brought against him by whose advice or instigation the slave has fled from his master, has grown disobedient towards him, become dissolute in his habits, or been made in any manner worse; and, in this action, an estimate is also to be made of whatever things the slave has stolen from his master in 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; GAI. 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 majorem veræ estimationis quantitatem in libello conventionis inseruit, ut ex hac causa viatores, id est exsecutores littum, ampliorem summam sportularum nomine exigerent: tunc enim quod propter eorum causam damnum passus fuerit reus, id triplum ab actore consequetur, ut in hoc triplo et simplum, in quo damnum passus est, connumeretur. Quod nostra constitutio induxit, quæ in nostro codice fulget, ex qua dubio procul est ex lege condicticiam emanare.

24. The triple value is sued for when any person inserts in his statement of demand a greater sum than is due to him, so that the viatores, that is, the officers of suits, exact a larger sum as their fee. In this case the defendant may obtain from the plaintiff the triple value of the loss he has sustained by giving the fee, but the amount which, by being overcharged, he disbursed is counted as one of the three sums in the triple value. This, a constitution inserted in our code has established, on which constitution, 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. (GAI. 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. under a statute.'

Condictio ex lege is literally 'a condiction (See Introd. sec. 111.)

25. Quadrupli veluti furti manifesti, item de eo, quod metus causa factum sit, deque ea pecunia, quæ in hoc data sit, ut is, cui datur, calumniæ causa negotium alicui faceret vel non faceret: item ex lege condicticia a nostra constitutione oritur, in quadruplum condemnationem imponens his exsecutoribus litium, qui contra nostræ constitutionis normam a reis quidquam exegerint.

25. The quadruple value is sued for; as, for example, in an action for manifest theft, in an action quod metus causa, and an action relating to money given to any one to set on foot, or to desist from, a vexatious suit. The statutory condiction is also for the quadruple value, which is established in our constitution against those officers of suits who demand anything from the defendant, contrary to the regulations 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 manifesti actio et servi corrupti a ceteris, de quibus simul locuti sumus, eo differt, quod hæ actiones omnimodo dupli sunt: at illæ, id est damni injuriæ ex lege Aquilia et interdum depositi, infitiatione duplicantur, in confitentem autem in simplum dantur: sed illa, quæ de his competit, quæ relicta venerabilibus locis sunt, non solum infitiatione duplicatur, sed et si distulerit relicti solutionem, usque quo jussu magistratuum nostrorum conveniatur, in confitentem vero et antequam jussu magistratuum conveniatur solventem simpli redditur.

26. But an action of theft not manifest, and an action on account of a slave corrupted, differ from the others, which we have placed under the same head, in that they are always brought for double the value; but the others, that is, the action given by the lex Aquilia for a wrongful injury, and the action of deposit under pressure, are brought for the double value in case of denial; but if the defendant confesses, the single value only can be recovered. In actions brought for things given to sacred places, double is recovered, not only on the denial of the defendant, but also on payment 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.

GAI. iv. 9. 171. 173; C. i. 3. 46. 7.

27. Item actio de eo, quod metus causa factum sit, a ceteris, de quibus simul locuti sumus, eo differt, quod ejus natura tacite continetur, ut, qui judicis jussu ipsam rem actori restituat, absolvatur. Quod in ceteris casibus non ita est, sed omnimodo quisque in quadruplum condemnatur, quod est et in furti manifesti actione.

27. The action quod metus causa differs also from the other actions included under the same head, because it is tacitly implied in the nature of this action, that a defendant, who, in obedience to the command of the judge, restores the things taken, ought to be acquitted; in all the other actions, on the contrary, the defendant must always be condemned to pay the fourfold value, as, for instance, in the action of manifest theft.

D. iv. 2. 14. 1. 4.

444

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 bonæ fidei sunt, quædam stricti juris. Bonæ fidei sunt hæ: ex empto, vendito, locato, conducto, negotiorum gestorum, mandati, depositi, pro socio, tutela, commodati, pigneraticia, familiæ erciscundæ, communi dividundo, præscriptis verbis, quæ de æstimato proponitur, et ea, quæ ex permutatione competit, et hereditatis petitio. Quamvis enim usque adhuc incertum erat, sive inter bonæ fidei judicia connumeranda sit sive non, nostra tamen constitutio aperte eam esse bonæ fidei disposuit.

GAI. iv. 62;

fidei, some are stricti juris. Of those 28. Again, some actions are bonæ the actions empti and venditi, locati bona fidei there are the following and conducti, negotiorum gestorum; those brought on a mandate, deposit, partnership, tutelage, loan, or pledge; the action familiæ erciscunda; that communi dividundo; the action præscriptis verbis, arising from a commission to sell at a fixed price, or an exchange; and the demand of an inheritance. For although it was, till recently, doubtful whether this last action should be included among those bonæ fidei, our constitution has clearly decided that it is to be included among them.

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 bona 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 præstare 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 (GAI. 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

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