Part 20 (2/2)

6 What we have said of the liability of a master on the contracts of his slave is equally applicable where the contract is made by a child or grandchild in the power of his or her father or grandfather.

7 A special enactment in favour of children in power is found in the senatusconsult of Macedo, which has prohibited the giving of loans of money to such persons, and refused an action to the lender both against the child, whether he be still in power, or has become independent by death of the ancestor or emanc.i.p.ation, and against the parent, whether he still retains the child in his power, or has emanc.i.p.ated him. This enactment was made by the Senate because it was found that persons in power, when dragged down by the burden of loans which they had squandered in profligacy, often plotted against the lives of their parents.

8 Finally, it should be observed that where a contract has been entered into by a slave or son in power at his master's or parent's bidding, or where there has been a conversion to his uses, a condiction may be brought directly against the parent or master, exactly as if he had been the original contracting party in person. So too, wherever a man is suable by either of the actions called exercitoria and inst.i.toria, he may, in lieu thereof, be sued directly by a condiction, because in effect the contract in such cases is made at his bidding.

t.i.tLE VIII. OF NOXAL ACTIONS

Where a delict, such as theft, robbery, unlawful damages, or outrage, is committed by a slave, a noxal action lies against the master, who on being condemned has the option of paying the damages awarded, or surrendering the slave in satisfaction of the injury.

1 The wrongdoer, that is, the slave, is called 'noxa'; 'noxia' is the term applied to the wrong itself, that is, the theft, damage, robbery, or outrage.

2 This principle of noxal surrender in lieu of paying damages awarded is based on most excellent reason, for it would be unjust that the misdeed of a slave should involve his master in any detriment beyond the loss of his body.

3 If a master is sued by a noxal action on the ground of his slave's delict, he is released from all liability by surrendering the slave in satisfaction of the wrong, and by this surrender his right of owners.h.i.+p is permanently transferred; though if the slave can procure enough money to compensate the surrenderee in full for the wrong he did him, he can, by applying to the praetor, get himself manumitted even against the will of his new master.

4 Noxal actions were introduced partly by statute, partly by the Edict of the praetor; for theft, by the statute of the Twelve Tables; for unlawful damages, by the lex Aquilia; for outrage and robbery, by the Edict.

5 Noxal actions always follow the person of the wrongdoer. Thus, if your slave does a wrong while in your power, an action lies against you; if he becomes the property of some other person, that other is the proper person to be sued; and if he is manumitted, he becomes directly and personally liable, and the noxal action is extinguished. Conversely, a direct action may change into noxal; thus, in an independent person has done a wrong, and then becomes your slave (as he may in several ways described in the first Book), a noxal action lies against you in lieu of the direct action which previously lay against the wrongdoer in person.

6 But no action lies for an offence committed by a slave against his master, for between a master and a slave in his power there can be no obligation; consequently, if the slave becomes the property of some other person, or is manumitted, neither he nor his new master can be sued; and on the same principle, if another man's slave commits a wrong against you, and then becomes your property, the action is extinguished, because it has come into a condition in which an action cannot exist; the result being that even if the slave pa.s.ses again out of your power you cannot sue. Similarly, if a master commits a wrong against his slave, the latter cannot sue him after manumission or alienation.

7 These rules were applied by the ancients to wrongs committed by children in power no less than by slaves; but the feeling of modern times has rightly rebelled against such inhumanity, and noxal surrender of children under power has quite gone out of use. Who could endure in this way to give up a son, still more a daughter, to another, whereby the father would be exposed to greater anguish in the person of a son than even the latter himself, while mere decency forbids such treatment in the case of a daughter? Accordingly, such noxal actions are permitted only where the wrongdoer is a slave, and indeed we find it often laid down by old legal writers that sons in power may be sued personally for their own delicts.

t.i.tLE IX. OF PAUPERIES, OR DAMAGE DONE BY QUADRUPEDS

A noxal action was granted by the statute of the Twelve Tables in cases of mischief done through wantonness, pa.s.sion, or ferocity, by irrational animals; it being by an enactment of that statute provided, that if the owner of such an animal is ready to surrender it as compensation for the damage, he shall thereby be released from all liability. Examples of the application of this enactment may be found in kicking by a horse, or goring by a bull, known to be given that way; but the action does not lie unless in causing the damage the animal is acting contrary to its natural disposition; if its nature be to be savage, this remedy is not available. Thus, if a bear runs away from its owner, and causes damage, the quondam owner cannot be sued, for immediately with its escape his owners.h.i.+p ceased to exist. The term pauperies, or 'mischief,' is used to denote damage done without there being any wrong in the doer of it, for an unreasoning animal cannot be said to have done a wrong. Thus far as to the noxal action.

1 It is, however, to be observed that the Edict of the aedile forbids dogs, boars, bears, or lions to be kept near where there is a public road, and directs that if any injury be caused to a free man through disobedience of this provision, the owner of the beast shall be condemned to pay such sum as to the judge shall seem fair and equitable: in case of any other injury the penalty is fixed at double damages.

Besides this aedilician action, that on pauperies may also be sometimes brought against the same defendant; for when two or more actions, especially penal ones, may be brought on one and the same ground, the bringing of one does not debar the plaintiff from subsequently bringing the other.

t.i.tLE X. OF PERSONS THROUGH WHOM WE CAN BRING AN ACTION

We must now remark that a man may sue either for himself, or for another as attorney, guardian, or curator: whereas formerly one man could not sue for another except in public suits, as an a.s.sertor of freedom, and in certain actions relating to guardians.h.i.+p. The lex Hostilia subsequently permitted the bringing of an action of theft on behalf of persons who were in the hands of an enemy, or absent on State employment, and their pupils. It was, however, found extremely inconvenient to be unable to either bring or defend an action on behalf of another, and accordingly men began to employ attorneys for this purpose; for people are often hindered by illhealth, age, unavoidable absence, and many other causes from attending to their own business.

1 For the appointment of an attorney no set form of words is necessary, nor need it be made in the presence of the other party, who indeed usually knows nothing about it; for in law any one is your attorney whom you allow to bring or defend an action on your behalf.

2 The modes of appointing guardians and curators have been explained in the first Book.

t.i.tLE XI. OF SECURITY

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