5. Ceterum dubium non est, quin is quoque, qui jussu domini contraxerit cuique institoria vel exercitoria actio competit, de peculio deque eo, quod in rem domini versum est, agere possit: sed erit stultissimus, si omissa actione, qua facillime solidum ex contractu consequi possit, se ad difficultatem perducat probandi, in rem domini versum esse, vel habere servum peculium et tantum habere, ut solidum sibi solvi possit. Is quoque, cui tributoria actio competit, æque de peculio et in rem verso agere potest: sed sane huic modo tributoria expedit agere, modo de peculio et in rem verso. Tributoria ideo expedit agere, quia in ea domini condicio præcipua non est, id est, quod domino debetur, non deducitur, sed ejusdem juris est dominus, cujus et ceteri creditores at in actione de peculio ante deducitur, quod domino debetur et in id, quod reliquum est, creditori dominus condemnatur. Rursus de peculio ideo expedit agere, quod in hac actione totius peculii ratio habetur, at in tributoria ejus tantum, quod negotiatur, et potest quisque tertia forte parte peculii aut quarta vel etiam minima negotiari, majorem autem partem in prædiis et mancipiis aut fenebri pecunia habere. Prout ergo expedit, ita quisque vel hanc actionem vel illam eligere debet: certe qui potest probare, in rem domini versum esse, de in rem verso agere debet.

5. It need hardly be said that a person who has contracted with a slave acting by his master's command, and who may bring either the action institoria or exercitoria, may also bring the action de peculio et in rem verso. But it would be the height of folly in any one to give up an action by which he might easily recover his whole demand, and have recourse to another by which he would be reduced to the difficulty of proving that the money he lent to the slave was employed to the profit of the master, or that the slave is possessed of a peculium, and that sufficient to answer the whole debt. Any one, again, in whose power it is to bring the actio tributoria, may equally bring the action de peculio et in rem verso; and it is expedient, in some cases, to employ the former, and in some cases the latter. On the one hand, the actio tributoria is preferable, because in this no privilege is accorded to the master, i.e. there is no previous deduction made in his favour of what is due to him, but he stands in the same position as the rest of the creditors; whereas in the action de peculio, there is first deducted the debt due to the master, who is only condemned to distribute the remainder among the creditors. On the other hand, in some cases, it may be more convenient to bring the action de peculio, because it affects the whole peculium, whereas the action tributoria affects only so much of it as has been employed in trade; and it is possible that a slave may have traded only with a third, a fourth, or some very small part of it, and that the rest may consist in lands, slaves, or money lent at interest. Every one ought, therefore, to select the one or the other action as may seem most advantageous to him. If, however, a creditor can prove that anything has been employed to the profit of the master, he ought to bring the action de in rem verso. GAI. iv. 74; D. xiv. 4. 11.

Any one who could bring an actio quod jussu, exercitoria, or institoria, could also, at option, bring an actio de peculio et in rem verso, but not at all necessarily vice versa.

6. Quæ diximus de servo et domino, eadem intellegimus et de filio et filia aut nepote et nepte, et patre

6. What we have said in relation to a slave and his master, is equally applicable to children and grandchil

avove, cujus in potestate sunt.

dren, and to their ascendants, in whose power they are.

D. xiv. 4. 1. 4.

It may be observed, however, that (1) the master was never bound, if the slave engaged himself by mandate, or fidejussion, for a third person, but the father was bound to the extent of a son's peculium by the son's intercessio (D. xv. 1. 3. 9), and (2) the son was bound civilly, the slave only naturally. If the son was sued and condemned to pay, an action judicati could be brought against the father to the extent of the son's peculium.

7. Illud proprie servatur in eorum persona, quod senatusconsultum Macedonianum prohibuit, mutuas pecunias dari eis, qui in parentis erunt potestate: et ei, qui crediderit, denegatur actio tam adversus ipsum filium filiamve, nepotem neptemve, sive adhuc in potestate sunt, sive morte parentis vel emancipatione suæ potestatis esse coeperint, quam adversus patrem avumve, sive habeat eos adhuc in potestate sive emancipaverit. Quæ ideo senatus prospexit, quia sæpe onerati ære alieno creditarum pecuniarum, quas in luxuriam consumebant, vitæ parentium insidiabantur.

7. A peculiar provision has, however, been made in their favour by the senatusconsultum Macedonianum, which prohibits money to be lent to children under power of their parents, and refuses any action to the creditor, either against the descendants, whether still under power, or become sui juris by the death of the parent or by emancipation, or against the parent, whether he still retains them under his power, or has emancipated them. This provision was adopted by the senate, because they thought that persons under power, when loaded with debts contracted by borrowing sums to be wasted in debauchery, often attempted the lives of their parents.

D. xiv. 6. 1; D. xiv. 6. 3. 3; D. xiv. 6. 7. 10.

The senatusconsultum Macedonianum was made, according to Tacitus, in the reign of Claudius (Ann. xi. 31); according to Suetonius, in that of Vespasian (Vesp. 11). Perhaps it was only renewed in the latter reign. Theophilus informs us that it was made to meet the case of a young prodigal named Macedo, who attempted the life of his father. The terms of the senatusconsultum (D. xiv. 6. 1) would rather lead us to suppose Macedo was the name of a usurer. The text says denegatur actio; but if there was any doubt as to the facts, the action was brought, and the senatusconsultum Macedonianum made the ground of an exception. (D. xiv. 6. 11.)

8. Illud in summa admonendi sumus, id, quod jussu patris dominive contractum fuerit quodque in rem ejus versum fuerit, directo quoque posse a patre dominove condici, tamquam si principaliter cum ipso negotium gestum esset. Ei quoque, qui vel exercitoria vel institoria actione tenetur, directo posse condici placet, quia hujus quoque jussu contractum intellegitur.

8. Lastly, we may observe, that whenever any contract has been made by command of a father or master, or anything employed to their profit, a condictio may be brought directly against the father or master exactly as if the contract had been originally made with them. So when any one is liable to the action exercitoria or institoria, a condictio may also be brought directly against him, as in this case also it is by his order that the contract is understood to have been made. D. xvii. 2. 84; D. xiv. 3. 17. 5; D. xii. 1. 29.

Posse condici. If a condiction could be brought, of what use were the peculiar prætorian actions of which, as the text informs us, the plaintiff could avail himself? Probably the institution of these actions was long antecedent to the time when the condiction was admitted as an appropriate form of action in cases where a paterfamilias was to be made responsible for the acts of his son or slave. It was only by a great extension of the scope of the condiction that it was given, first, when one man profited in any way by the property of another (D. xii. 1. 23. 32); and, secondly, against a person by whose order another person had contracted, or whose manager (institor) the person contracting was. (D. xii. 1. 9. 2.) After it had received this extension, the condictio would be a concurrrent remedy with the prætorian actions. But there would still be cases, namely, bilateral contracts, giving rise to prætorian actions, such as those empti or venditi, pro socio, locati or conducti, or contracts giving rise to actions in factum, in which the condiction would not be given against the paterfamilias, and in which recourse must be had to the prætorian actions proper to the kind of contract. These prætorian actions would, in the particular case of the paterfamilias, receive a slight modification of form, and a new name, and be termed quod jussu, de in rem verso, de peculio, &c., though remaining substantially empti, locati, pro socio, &c., according to the character of the transaction.

TIT. VIII. DE NOXALIBUS ACTIONIBUS.

Ex maleficiis servorum, veluti si furtum fecerint aut bona rapuerint aut damnum dederint aut injuriam commiserint, noxales actiones proditæ sunt, quibus domino damnato permittitur, aut litis æstimationem sufferre aut hominem noxæ dedere.

The wrongful acts of a slave, whether he commits a theft or robbery, or does any damage or injury, give rise to noxal actions in which the master of the slave, if judgment is against him, may either pay the estimated amount of damage done, or deliver up his slave as a noxa.

GAI. iv. 75.

We now pass to actions given to enforce obligations arising from the delicts of persons alieni juris. These actions, which were given against the master of the slave, and, in ancient times, against the parent of the filiusfamilias, were termed noxales because the master or parent could rid himself of all liability, by abandoning the slave or child committing the delict to the person injured. There was, however, no distinct actio noxalis. The action brought on the delict was one furti, vi bonorum raptorum, &c., as the case might be, the difference being that the condemnatio was alternative, either to pay so much or to abandon the slave, instead of simply to pay so much.

If at any time, either before or after the litis contestatio, the master abandoned the slave, all right of action for damages against

him became immediately extinct. The actio noxalis had thus a kind of resemblance to the actiones arbitraria, in which the judex first ordered the defendant to make satisfaction, and then, if he did not comply, proceeded to condemn him.

:

3. A master sued in a noxal action on account of his slave, frees himself if he gives up his slave to the plaintiff, and then the property in the slave is thus transferred for ever; but, if the slave can procure money, and satisfy the master to whom he has been given up for all damage he has sustained, he is manumitted by the intervention of the prætor, though against the wish of his new master.

D. ix. 4. 20.

4. Sunt autem constitutæ noxales actiones aut legibus aut edicto prætoris legibus veluti furti lege duodecim tabularum, damni injuria lege Aquilia edicto prætoris veluti injuriarum et vi bonorum raptorum.

4. Noxal actions are established either by the laws, or by the edict of the prætor. By the laws, as for theft, by the law of the Twelve Tables; for wrongful damage, by the lex Aquilia; by the prætor's edict, as for injuries and robbery with violence. GAI. iv. 76.

These are but examples; any delict whatsoever committed by a slave would furnish ground for an actio noxalis.

5. Omnis autem noxalis actio caput sequitur. Nam si servus tuus noxiam commiserit, quamdiu in tua potestate sit, tecum est actio: si in alterius potestatem pervenerit, cum illo incipit actio esse, aut si manumissus fuerit, directo ipse tenetur et extinguitur noxæ deditio. Ex diverso quoque directa actio noxalis esse incipit: nam si liber homo noxiam commiserit et is servus tuus esse cœperit (quod casibus quibusdam effici primo libro tradidimus),

5. Every noxal action follows the delinquent. The delicts committed by your slave are a ground of action against you, while the slave belongs to you; if the slave becomes subject to another, the action must be brought against the new master; but if the slave is manumitted, the action is brought directly against him, and there cannot then be any giving up of the slave in satisfaction. Conversely, an action, which was at first direct, may afterwards become noxal; for if a free

incipit tecum esse noxalis actio, quæ ante directa fuisset.

man commits a wrongful act, and then becomes your slave, which may happen in some cases, of which we have spoken in our First Book, then the direct action against the slave is changed into a noxal action against you.

GAL. iv. 77.

He was the person in possession of the slave, and not necessarily his owner, who was liable for his delicts. The references to the First Book are Tit. 3. 4, and Tit. 16. 1.

6. Si servus domino noxiam commiserit, actio nulla nascitur: namque inter dominum et eum, qui in ejus potestate est, nulla obligatio nasci potest. Ideoque et si in alienam potestatem servus pervenerit aut manumissus fuerit, neque cum ipso neque cum eo, cujus nunc in potestate sit, agi potest. Unde si alienus servus noxiam tibi commiserit et is postea in potestate tua esse cœperit, intercidit actio, quia in eum casum deducta sit, in quo consistere non potuit ideoque licet exierit de tua potestate, agere non potes, quemadmodum si dominus in servum suum aliquid commiserit, nec si manumissus vel alienatus fuerit servus, ullam actionem contra dominum habere potest.

6. If a slave commits a wrongful act against his master, no action can be brought; for no obligation can arise between a master and one in his power; and if the slave passes under the power of another master, or is manumitted, no action can be brought either against him or his new master; whence it follows, that, if the slave of another should commit a wrongful act against you, and become your slave, the action is extinguished; as it has become impossible in the actual position of the parties. And although he subsequently passes out of your power, yet you cannot bring an action. Neither, if a master injures his slave in any way, can the slave, after having been alienated or manumitted, bring any action against his master. GAI. iv. 78.

The Proculians had thought that a master could, after a slave had passed out of his power, bring an action against the slave for anything done by him whilst his slave. (GAI. iv. 78.)

7. Sed veteres quidem hæc et in filiisfamilias masculis et feminis admiserunt. Nova autem hominum conversatio hujusmodi asperitatem recte respuendam esse existimavit et ab usu communi hæc penitus recessit quis enim patitur filium suum et maxime filiam in noxam alii dare, ut pene per corpus filii pater magis, quam filius periclitetur, cum in filiabus etiam pudicitiæ favor hoc bene excludit? Et ideo placuit, in servos tantummodo noxales actiones esse proponendas, cum apud veteres legum commentatores invenimus sæpius dictum, ipsos filiosfamilias pro suis delictis posse conveniri.

7. The ancients, indeed, applied the same rules to children of both sexes in the power of ascendants; but the feeling of later times has rightly rejected such extreme rigour, and it has therefore passed wholly into dis use. For who could bear to deliver up as a noxa a son, and still more a daughter? for, in the person of his son, the father would almost suffer more than the son himself, and mere regard to decency forbids such treatment of a daughter. Noxal actions have, therefore, been allowed to apply to slaves only; and we find it often laid down in the older jurists, that an action may be brought directly against sons in power for their wrongful acts. GAI. iv. 75. 77-79; D. ix. 4. 33-35.