Part 19 (1/2)
2 An outrage or injury may be suffered either in one's own person, or in the person of a child in one's power, or even, as now is generally allowed, in that of one's wife. Accordingly, if you commit an 'outrage'
on a woman who is married to t.i.tius, you can be sued not only in her own name, but also in those of her father, if she be in his power, and of her husband. But if, conversely, it be the husband who is outraged, the wife cannot sue; for wives should be protected by their husbands, not husbands by their wives. Finally, a father-in-law may sue on an outrage committed on his daughterinlaw, if the son to whom she is married is in his power.
3 Slaves cannot be outraged themselves, but their master may be outraged in their person, though not by all the acts by which an outrage might be offered to him in the person of a child or wife, but only by aggravated a.s.saults or such insulting acts as clearly tend to dishonour the master himself: for instance, by flogging the slave, for which an action lies; but for mere verbal abuse of a slave, or for striking him with the fist, the master cannot sue.
4 If an outrage is committed on a slave owned by two or more persons jointly, the damages to be paid to these severally should be a.s.sessed with reference not to the shares in which they own him, but to their rank or position, as it is to the reputation and not to the property that the injury is done;
5 and if an outrage is committed on a slave belonging to Maevius, but in whom t.i.tius has a usufruct, the injury is deemed to be done to the former rather than to the latter.
6 But if the person outraged is a free man who believes himself to be your slave, you have no action unless the object of the outrage was to bring you into contempt, though he can sue in his own name. The principle is the same when another man's slave believes himself to belong to you; you can sue on an outrage committed on him only when its object is to bring contempt upon you.
7 The penalty prescribed for outrage in the Twelve Tables was, for a limb disabled, retaliation, for a bone merely broken a pecuniary mulct proportionate to the great poverty of the age. The praetors, however, subsequently allowed the person outraged to put his own estimate on the wrong, the judge having a discretion to condemn the defendant either in the sum so named by the plaintiff, or in a less amount; and of these two kinds of penalties that fixed by the Twelve Tables is now obsolete, while that introduced by the praetors, which is also called 'honorary,'
is most usual in the actual practice of the courts. Thus the pecuniary compensation awarded for an outrage rises and falls in amount according to the rank and character of the plaintiff, and this principle is not improperly followed even where it is a slave who is outraged; the penalty where the slave is a steward being different from what it is when he is an ordinary menial, and different again when he is condemned to wear fetters.
8 The lex Cornelia also contains provisions as to outrages, and introduced an action on outrage, available to a plaintiff who alleges that he has been struck or beaten, or that a forcible entry has been made upon his house; the term 'his house' including not only one which belongs to him and in which he lives but also one which is hired by him, or in which he is received gratuitously as a guest.
9 An outrage becomes 'aggravated' either from the atrocious character of the act, as where a man is wounded or beaten with clubs by another; or from the place where it is committed, for instance, in the theatre or forum, or in full sight of the praetor; or from the rank of the person outraged,--if it be a magistrate, for instance, or if a senator be outraged by a person of low condition, or a parent by his child, or a patron by his freedman; for such an injury done to a senator, a parent, or a patron has a higher pecuniary compensation awarded for it than one done to a mere stranger, or to a person of low condition. Sometimes too the position of the wound makes an outrage aggravated, as where a man is struck in the eye. Whether the person on whom such an outrage is inflicted is independent or in the power of another is almost entirely immaterial, it being considered aggravated in either case.
10 Finally, it should be observed that a person who has been outraged always has his option between the civil remedy and a criminal indictment. If he prefers the former, the penalty which is imposed depends, as we have said, on the plaintiff's own estimate of the wrong he has suffered; if the latter, it is the judge's duty to inflict an extraordinary penalty on the offender. It should be remembered, however, that by a const.i.tution of Zeno persons of ill.u.s.trious or still higher rank may bring or defend such criminal actions on outrage by an agent, provided they comply with the requirements of the const.i.tution, as may be more clearly ascertained by a perusal of the same.
11 Liability to an action on outrages attaches not only to him who commits the act,--the striking of a blow, for instance--but also to those who maliciously counsel or abet in the commission, as, for instance, to a man who gets another struck in the face.
12 The right of action on outrage is lost by condonation; thus, if a man be outraged, and takes no steps to obtain redress, but at once lets the matter, as it is said, slip out of his mind, he cannot subsequently alter his intentions, and resuscitate an affront which he has once allowed to rest.
t.i.tLE V. OF QUASI-DELICTAL OBLIGATIONS
The obligation incurred by a judge who delivers an unjust or partial decision cannot properly be called delictal, and yet it does not arise from contract; consequently, as he cannot but be held to have done a wrong, even though it may be due to ignorance, his liability would seem to be quasidelictal, and a pecuniary penalty will be imposed on him at the judge's discretion.
1 Another case of quasidelictal obligation is that of a person from whose residence, whether it be his own, or rented, or gratuitously lent him, anything is thrown or poured out whereby another is injured; the reason why his liability cannot properly be called delictal being that it is usually incurred through the fault of some other person, such as a slave or freedman. Of a similar character is the obligation of one who keeps something placed or hung over a public way, which might fall and injure any one. In this last case the penalty has been fixed at ten aurei; in that of things thrown or poured out of a dwelling-house the action is for damages equivalent to double the loss sustained, though if a free man be thereby killed the penalty is fixed at fifty aurei, and even if he be merely injured he can sue for such damages as the judge shall in his discretion award; and here the latter should take into account the medical and other expenses of the plaintiff's illness, as well as the loss which he has sustained through being disabled from work.
2 If a son in power lives apart from his father, and anything is thrown or poured out of his place of residence, or if he has anything so placed or hung as to be dangerous to the public, it is the opinion of Julian that no action lies against the father, but that the son should be made sole defendant; and the same principle should be applied to a son in power who is made a judge, and delivers an unjust or partial decision.
3 Similarly s.h.i.+powners, inn and stable keepers are liable as on a quasi-delict for wilful damage or theft committed in their s.h.i.+ps, inns, or stables, provided the act be done by some or one of their servants there employed, and not by themselves; for the action which is given in such cases is not based on contract, and yet as they are in some sense at fault for employing careless or dishonest servants, their liability would seem to be quasidelictal. In such circ.u.mstances the action which is given is on the case, and lies at suit of the injured person's heir, though not against the heir of the s.h.i.+powner, inn or stable keeper.
t.i.tLE VI. OF ACTIONS
The subject of actions still remains for discussion. An action is nothing else than the right of suing before a judge for what is due to one.
1 The leading division of all actions whatsoever, whether tried before a judge or a referee, is into two kinds, real and personal; that is to say, the defendant is either under a contractual or delictal obligation to the plaintiff, in which case the action is personal, and the plaintiff's contention is that the defendant ought to convey something to, or do something for him, or of a similar nature; or else, though there is no legal obligation between the parties, the plaintiff a.s.serts a ground of action against some one else relating to some thing, in which case the action is real. Thus, a man may be in possession of some corporeal thing, in which t.i.tius claims a right of property, and which the possessor affirms belongs to him; here, if t.i.tius sues for its recovery, the action is real.
2 It is real also if a man a.s.serts that he has a right of usufruct over a landed estate or a house, or a right of going or driving cattle over his neighbour's land, or of drawing water from the same; and so too are the actions relating to urban servitudes, as, for instance, where a man a.s.serts a right to raise his house, to have an uninterrupted prospect, to project some building over his neighbour's land, or to rest the beams of his own house on his neighbour's wall. Conversely, there are actions relating to usufructs, and to rustic and urban servitudes, of a contrary import, which lie at the suit of plaintiffs who deny their opponent's right of usufruct, of going or driving cattle, of drawing water, of raising their house, or having an uninterrupted view, of projecting some building over the plaintiff's land, or of resting the beams of their house in the plaintiff's wall. These actions too are real, but negative, and never occur in disputes as to corporeal things, in which the plaintiff is always the party out of possession; and there is no action by which the possessor can (as plaintiff) deny that the thing in question belongs to his adversary, except in one case only, as to which all requisite information can be gathered from the fuller books of the Digest.
3 The actions which have hitherto been mentioned, and others which resemble them, are either of statutory origin, or at any rate belong to the civil law. There are other actions, however, both real and personal, which the praetor has introduced in virtue of his jurisdiction, and of which it is necessary to give examples. For instance, he will usually, under the circ.u.mstances to be mentioned, allow a real action to be brought with a fict.i.tious allegation--namely, that the plaintiff has acquired a t.i.tle by usucapion where this, in fact, is not the case; or, conversely, he will allow a fict.i.tious plea on the part of the defendant, to the effect that the plaintiff has not acquired such a t.i.tle where, in point of fact, he has.
4 Thus, if possession of some object be delivered on a ground sufficient to legally transfer the same--for instance, under a sale or gift, as part of a dowry, or as a legacy--and the transferee has not yet acquired a complete t.i.tle by usucapion, he has no direct real action for its recovery, if he accidentally loses possession, because by the civil law a real action lies at the suit of the owner only. But as it seemed hard that in such a case there should be no remedy, the praetor introduced an action in which the plaintiff, who has lost possession, fict.i.tiously allege that he has acquired a full t.i.tle by usucapion, and thus claims the thing as his own. This is called the Publician action, because it was first placed in the Edict by a praetor called Publicius.
5 Conversely, if a person, while absent in the service of the State, or while in the power of an enemy, acquires by usucapion property belonging to some one resident at home, the latter is allowed, within a year from the cessation of the possessor's public employment, to sue for a recovery of the property by a rescission of the usucapion: by fict.i.tiously alleging, in other words, that the defendant has not thus acquired it; and the praetor from motives of equity allows this kind of action to be brought in certain other cases, as to which information may be gathered from the larger work of the Digest or Pandects.
6 Similarly, if a person conveys away his property in fraud of creditors, the latter, on obtaining from the governor of the province a decree vesting in them possession of the debtor's estate, are allowed to avoid the conveyance, and sue for the recovery of the property; in other words, to allege that the conveyance has never taken place, and that the property consequently still belongs to the debtor.