CHAPTER V. THE SLAVE AS MAN. NON-COMMERCIAL RELATIONS (cont.). DELICTS BY SLAVES.

The parties being before the Praetor the proceedings begin, or may begin, with an interrogatio of the defendant, as to his position with regard to the slave. Upon the exact content of the interrogatio there has been much controversy¹. Many texts speak of it as being, an eius sit, i.e. on the question of ownership^{[469] [470]. There are others which assume it to be, an in potestate habeat[471]. And there is at least one which may be read as implying that they mean the same thing[472]. The most probable view seems to be that now adopted by Lenel8. He holds that there were two interrogations, for different cases. The procedure was certainly different according as the slave was present or absent.}

The dominus who has admitted his title may ā€œdefendā€ the slave. This involves giving security that the slave shall be present at the hearingā€”cautio iudido sisti. There were differences of opinion as to what was implied in this promise. Labeo held that the defendant must not do anything to lessen his right in the slave meanwhile, or use delays till the action was extinct: he must do nothing to make the plaintiffā€™s position worseā€™. Any alienation of him to a person out of jurisdiction or to a potentior whom it might be difficult to bring before the court, was a breach of this undertaking³. Noxal surrender was not, (though Ofilius thought otherwise,) for the liability still attached to the man, on the principle, noxa caput sequiturⁱ. (It must be noted that in all these cases the security is only donee iudidum aedpiatur⁵, so that there is no question of an intervening litis contestatio: the action can be simply transferred.) To produce, free, one who had been a statuliber before, satisfied the promise, since the possibility of his becoming free was to have been reckoned upon⁶.

If, admitting his title, the dominus is not inclined to defend the slave, his proper course is to surrender him to the plaintiff, making according to the Digest a formal transfer of him⁷. If he does this he is absolutely released, though there exist minor rights in the man⁸. In the classical law it seems likely that simple abandonment, that the slave might be ductus, sufficed, since the masterā€™s mere presence would not impose a duty on him which he could have avoided by staying away; and in absence of the master ductio released⁹. Thus an outstanding usuĀ­fruct is no bar, and the usufructuary cannot recover him without paying litis aestimatio to the surrenderee, provided the surrender was in good faith¹⁰. The effect of the transfer is to make the transferee owner¹¹. Thus if it be to the usufructuary the usufruct is ended by confusio^w. The fact that the slave dies after surrender is of course not material¹³.

1 The effect of silence of deft, on the enquiry is not stated. Lenel thinks an answer could be compelled, citing an analogous case (25. 4.1. 3). But as the text shews, in the special case there handled the needs of the parties could not otherwise be met. This is not so in our case, and it has been suggested that here, as in some other cases, silence was treated as contumacy equivalent to denial. Naber, Mnemosyne, 30.176. The person interrogated may ask for delay, since his answer may have serious results, 11.1. 8.

2 2.9.1.1. ⁸ Ibid. ⁴ 2. 9. 1. 2. *2. 9. l.pr.

⁶ 2. 9. 6. The same was true in other cases of freedom: he could still be sued. This did not hold in iniuria since the fact that he was free would prevent the corporal punishment which here ordinarily replaced damages or surrender, 2. 9. 5. Ante, p. 100.

1 50.16. 215; 9. 4. 21.pr., 33.29, which Eisele thinks interpolated (Z. S. S. 13.124). H. t. 32 (which he also thinks interpolated) says that dominus handing him over must de dolo promittere, i.e. that he has not made ms right in him worse in any way, 9. 4. 14.1.

8 9. 4. 15; In. 4. 8. 3. Ā« Cp. 6. 2. 6; 9. 4. 29. See also post, pp. 104, 106.

¹⁰ 7. 1. 17. 2; 9. 4. 27. pr. So where the slave was pledged, 4. 3. 9. 4. As to these texts, post, p. 117.

H In. 4. 8.3. 12 7.4.27.

1^s The Institutes say (4. 8. 3) that the slave was entitled to freedom, auxilio praetoris invito domino, when he had wiped out by earnings the damage doneā€”an extension to slaves of the rule applied to noxal surrender of sons, obsolete in Justinianā€™s time- It is not in the Digest or Code.

104 Presence or absence of defendant Dominus [pt. i

If the dominus will neither surrender nor defend he is liable to an actio in solidum with no power of surrender¹.

If the defendant is present and the slave absent, and the defendant denies potestas, the plaintiff has alternative courses. He may offer an oath on the question of potestas². If this is refused condemnation follows, with the alternative of surrenderā€™. If it is taken, the action is lost⁴, but this does not bar a future action based on a new potestas, beginning after the oath was taken⁸. The alternative course is to take an action, sine noxae deditione, there and then⁸, which imposes obligation in solidum, but is lost unless actual present potestas be proved or loss of it, dolo malo⁷. This action on denial of potestas may of course be avoided by withdrawing the denial before litis contestation and as it has a certain penal character it is not available against the heres of the denier⁹. If the defendant did not deny potestas, Vindius held that he could be compelled either to appear with the slave to accept a iudicium, (iudicio sisti promittere,) or, if he would not defend, to give security to produce the man, whenever it should be possible¹⁰. But it appears that the action could not be brought and defended in the absence of the slave, if there was any doubt as to the defendantā€™s being a person liable for him, i.e. owner or bonae fidei possessor. Where he has given such security he will be free from liability if, whenever it is possible, he conveys him to the plaintiff.

If the dominus is absent from the proceedings in iure, and the slave is present, he may be taken off (ductus) by the claimant, iussu praetoris¹¹. This releases the defendant¹², and as in the case of an indefensus, gives the holder the actio Publiciana¹ā€™. But on the return of the dominus, the Praetor may, for cause shewn, give him leave to defend¹⁴ The slave must then be produced by the plaintiff. A difficulty arose from the fact that the praetorā€™s order had put the man in the bona of the plaintiff, and a man cannot have a noxal action on account of his own slave, but the Praetor made an order restoring the extinguished action¹⁸. MoreĀ­over, in the absence of the dominus, anyone interested, for instance a pledgee or usufructuary¹⁸, might defend the slave for him, and would have an adio negotiorum gestorum against him¹⁷. And such persons, like the owner, might, if they were absent in good faith, come in later and defend¹⁸.

^I 9. 4. 21. 4, 22. 3. > 9. 4. 21. 2. ⁸ h. I. 4.

4 h.l. 6. The oath might be taken on his behalf by tutor or curator, but not by procurator, h. 1.6. h. I. 6; h. t. 23. Neratius points out that in the new potestas there might even be au action sine deditione, if the circumstances give rise to it, although on the existing potestas the oath was alternative to and thus exclusive of such an action.

⁶ 2. 9. ā€?2. 1; 9. 4. ā€?21. 2. 7 2. 9. 2. 1; 9. 4. 22. 4.

⁸ 9. 4. 26. 5, or later if deft, a minor. ⁹ Ibid. ¹⁰ 2. 9. 2. 1.

^II Ibid. 12 9. 4. 39. 3, exceptio doli.. ¹⁸ 6. 2. 6.

¹⁴ 2. 9. 2. 1. So if dominus who refuses to defend is entitled to restitutio in integrum.

¹⁵ 2. 9. 2. 1. M 2. 9.2.1; 9. 4. 26. 6.

¹⁷ 3. 5. 40. 18 9. 4. 26. 6, 30.

But the case of one who defends for an absent master must be distinguished from that of one who, not being dominus, has, upon interrogatio, admitted his responsibility as such. A person who has thus admitted potestas, is noxally liable, and if he is sued the dominus is released¹. His liability is as great as that of the dominus*, but he must give security iudicatum solvi as he is not the real principal⁸. Payment by him before litis contestatio would release the dominus, as well as payment under the judgment⁴. As the mere surrender by a person who is not owner does not pass dominium, the release is not ipso iure, but, in fact, it is effective. If the dominus sues for the slave he will be met by the exceptio doli, unless he tenders the damages'. The receiver by the surrender acquires the actio Publiciana, and if the dominus replies by an exceptio iusti dominii, he has a replicatio doli*.

If the wrong is to two people, the damages will be divisible, and each must sue for his share. But if one sues the surrender will have to be in solidum to him, as it does not admit of division. He will be liable to the other by indicium communi dividundo, i.e. if it is damage to some common thing. And if both sue together the judge may order surrender to both⁷, in common.

The inteniio of the formula in noxal actions states the duty as being either to pay or surrender, and these may be described, provisionally, as alternative obligations. The condemnatio leaves the same choice, but now the primary duty is to pay; surrender has become a merely ā€œfacultativeā€ mode of release. Thus a judgment simply ordering surrender is null⁸. It follows that the actio iudicati is only for the money: if this is defended the right of surrender is lost⁸ But surĀ­render after condemnatio does not release, if there are any outstanding rights in the man, such as usufruct¹⁰, and the plaintiff can sue by actio iudicati, without waiting for actual eviction, unless the outĀ­standing right is extinguished¹¹.

The typical defendant is the owner having potestas, but the Praetor extended the liability to one who would have had potestas but for his

1 11. 1. 8, 20 or the future dominus in case of servus hereditarius, h.t. 15. pr.

2 11. 1. 14.pr., 15. 1, 16. 1, ZO.pr.

⁸ causa cognita, i.e. if it appears that he is not owner. A non-owner sued need not, as he did not assume the position, 9. 4. 39. 1..

4 9. 4. 26. 9. Such confessions bind only if they can conceivably be true, e.g. not in any case in which Admitter could not possibly be owner. But the Boman juristic doctrines as to the nature and effect of impossibility are imperfectly worked out, 11. 1.16.1,14.1.

5 9. 4. 27. 1, 28. pr. ⁶ 9. 4. 28.

⁷ 9. 2. 27. 2; 9. 4.19. pr. These rules apply only where there is such a common interest: if the damage was to distinct things of different owners, there were two distinct delicts.

⁸ 42.1. 6.1.

⁹ 5. 3. 20. 5. If before judgment he has promised to pay or surrender, the action on his promise of course allows him both alternatives.

w 42. 1. 4. 8.

¹¹ 46. 3. 69. Perhaps surrender of him as statuliber sufficed, but it is not clear that the text which says this (9. 4. 15) refers to surrender after condemnation. fraud¹. The rules are in the main as in ordinary noxal actions, but as he is treated as if he still had potestas, and he has, in the ordinary way, denied potestas, he is liable in solidum^{[474] [475]}. The action lies, whether some other person is liable or not, e.g. when the slave was simply told to run away^{[476] [477] [478]}. But if there is a new owner ready to take the defence, or the slave, having been freed, presents himself to do so, with security, the old master has an exceptio* and the plaintiff who has elected to take one liability cannot fall back on the other^[479]. In one text we are told that if after litis contestatio in this praetorian action based on dolus, the slave appears, and is then ductus for lack of defence, the dominus is entitled to absolution, exceptione doli posita*. The hypothesis seems to be that the plaintiff, having brought this praetorian action, elects on the appearance of the slave, to treat the refusal to admit potestas, as having been a refusal to defend. Though there has been litis contestatio in the action, he may do this, but the defendant will be absolved. This is an application of the principle, omnia iudicia absolutoria esse^[480], since as we have seen this ductio of an indefensus would have released, had it been done before litis contestatio^[481].

The principle, Noxa caput sequitur, which underlies these rules is simple. The owner with present potestas is liable, whether he was owner at the time of the wrong or not. Thus a buyer even about to redhibit is noxally liable, and, as he might have surrendered, he can recover from the vendor no more than the price^[482]. This minimal cost of surĀ­render he can recover, whether he actually defended the slave, or surrendered him on a clear case^{[483] [484] [485] [486] [487]. It is enough that he is present owner: the fact that the sale is voidable as being in fraud of creditors, or that he is liable to eviction by the vendorā€™s pledgee, or that the vendor is entitled to restitutio in integrumā€”all these are immaterial11. As the masterā€™s liability depends on potestas, it is determined, (subject to what has been said as to dolus,) by death, alienation or manumission of the slave before litis contestation: a mere claim of liberty does not destroy the noxal action, but suspends it so that if the man proves a slave it will go on: if he proves free it is null18. A bona fide}

CH. v]

Delict by Slave against Master

107

abandonment releases the master, but the slave himself will be liable, if alive and free, (assuming the master not to have been sued,) and cannot surrender himself¹, and so will anyone who takes possession of him^{[488] [489]. If a servus noxius is captured by the enemy, the right of action revives on his return[490]. If a civis becomes a slave after committing a wrong his dominus is liable[491] [492].}

There is an important rule, that there can be no noxal liability between master and slave, and thus, whatever changes of position take place, an act by the slave against his dominies having potestas can never create an action either against another owner or against the slave if freed^[493]. Moreover, it is finally extinguished if the slave comes into the hands of one with whom the action could not have begun⁶: where the injured person acquires the slave the action will not revive on sale or manumission. This is the Sabinian view which clearly preĀ­vailed in later law^[494]. It is immaterial how temporary or defeasible the confusio may be. A buyer redhibiting, either by agreement, or by the actio redhibitoria, has no noxal action for what the slave has stolen while his^{[495] [496] [497] [498], though as we have seen there is a right of indemnification, with the alternative of leaving the slave with the buyer, noxae nomine*. Even though the sale be annulled, the slave being inemptus, there can be no actio furtiw.}

The case of legacy of the slave gives rise to some distinctions. Gaius, dealing with legatum per damnationem, in which the property is for the time being in the heres, says that, if the slave has stolen from him either before or after aditio, he is entitled, not to a noxal action, but to an indemnity, before he need hand over the slave¹¹. Julian, dealing no doubt with a legatum per vindicationem, says that in a case of theft before aditio, there is an ordinary noxal action^[499]. What is said of legatum per damnationem is no doubt true of any case in which the ownership is for the time in the heres. He is noxally liable for such slaves: Africanus^[500] tells us that if he is noxally defending such

a slave who is a statuliber, and the condition is satisfied during the indicium, he is entitled to absolution.

If the confusio arises only after litis contestatio, the vendor is not released, any more than he would be in the same case, by selling to a third person, or by freeing the slave, and here, as there, since he has deprived himself of the power of surrender, he must pay in full¹.

These rules give rise to a difficulty, at least apparent. If the event which divests the ownership of the defendant occurs before litis contestatio, a new action can of course be brought against the new owner. If it occurs after litis contestatio it might seem that any fresh action might be met by an exceptio rei in indicium deductae. It is clear however that, at least in the case in which the slave became free, this was not the case: it was the duty of the Praetor to order the transfer of the indicium to him^{[501] [502]. This way of putting the matter shews that the action was one and the same: it was only the indicium that was transferredā€”the intervention of the Praetor being needed to make the necessary changes in the formula[503]. In like manner the ordinary noxal action and that sine noxae deditione against dominus sciens 'tfQTQ really one and the same, so that the plaintiff could pass freely, pendente iudicio, from either to the other[504]. The act was done by the slave; the obligation centred in him, and the action, in all its forms, is really one. Hence it seems that if the case were one of transfer of ownership the pending indicium would simply be transĀ­ferred to the new owner in the same way. It may be noticed that, in those cases in which the renewal of the action is declared to be impossible, the fact that the action is already decided is expressly emphasised. In one case it is because res finita est[505] [506]. In another it is quasi decisum sit". Translatio iudicii was a recognised incident of procedure, though there are few texts which deal with it expressly.}

Leaving out of account the difficulties of this translatio iudicii'ā€™, and the cases in which there is no release because the fact which divested the ownership was caused by the defendant, we must consider some of the cases of transfer. The texts which deal with the case of statuliber lay down clear rules but have been abridged, at least, by the compilers, and shew that there were disputes among the earlier lawyers⁸. It is laid down, on the authority of Sabinus, Cassius and Octavenus, that the heres, noxally sued, may surrender the statuliber, and is thereby released, as having transferred all his right⁹, being required, however, to give security against any act of his, whereby the man may become free¹. The doubt which existed may have been due to the fact that as the man passes into the potestas of the injured person the remedy is for ever destroyed, while the condition may immediately supervene and release the offending slave². On the Proculian view, which allowed revival of noxal claims when the confusio ceased⁸, the difficulty would not have arisen, at least, if the surrender had been without judgment. If the condition arrived, pending the noxal action, the possibility of surrender was at an end and we are told that the defendant was released⁴ (the heres having however to hand over to the injured person any moneys he had received under the condition, in so far as they were not paid out of the peculium, which belonged to him⁵). This rule has been remarked on as exceptional, as, in other cases in which the ownership passes, the defendant is not released from his obligation to pay the damages⁶. This seems to be the law in the case of death⁷, and it is clearly laid down for the case in which the slave is evicted, while the noxal action is pending⁸, and for that in which a slave is noxally surrendered while another noxal action is pending⁹. On the other hand, where a fideicommissary gift takes effect, or the condition on a legacy of the slave arrives, before judgment in the noxal action, Ulpian treats the case as on the same level with that which we are discussing, as he does also that of one declared free in an adsertio libertatis while a noxal action is pending: he says that the noxal indicium becomes inutile¹⁰.

The difference is rather formal than important. Though the owner of the dead slave is still liable he is released in classical law by handing over the corpse, or part of it¹¹. And the evicted defendant need not hand over the man to the successful claimant till security is given for the damages in the noxal action¹². And in the case in which he is noxally surrendered to A while Bā€™s noxal action is pending, though judgment will go for B, there is no actio iudicatiā„¢. It is probable that the original starting-point is that of continued liability, if the divesting fact occur after litis contestatio. The inequitable effect of this led to modification, arrived at, in a hesitating way, by the help of a gradually increasing freedom in the conception of translatio iudicii. In the case of the statuliber, the supposed slave declared free, the slave freed by fideicommissum, there was absolute release

19.4.14.1. 2 40.7.9./Ā»Ā·. Cp. 47. 2. 62. 9.

8 Ante, p. 107. ⁴ 9. 4. 14. 1ā€”16.

5 47. 2. 62. 9, post, Ch. xxi. ⁶ Koschaker, loc. cit.

ā€™ Post, p. 111. 8 6.1.58. ^y 9. 4. 14.2W.; cp. 9. 4. 28.

¹⁰ 9. 4. 14. 1, 42. pr.", cf. 40. 12. 24. 4. The absolutio is however oficio iudicis in the case of satisfaction of the condition (9. 4. 14. 1). In the other case eviction does not mean that he was never liable: a b.f. possessor is liable. As to the case of adsertio, post, Ch. xxvm.

¹¹ Post, p. 111. ¹² 6. 1. 58. ¹⁸ 9. 4. 14. pr. with translatio iudicii. In the case of death, where this was inconĀ­ceivable, there was no release, but from early times surrender of the corpse sufficed. In the case of eviction there was no release, but the man need not be handed over without security for the damages in the forthcoming noxal judgment. It is not clear why this case was not grouped with those of statuliber, etc., since here translatio was quite feasible. It is true that in case of eviction there has, in strictĀ­ness, been no divesting fact; the legal ownership is unchanged, but this is equally true of the case of the slave declared free in an adsertio liberĀ­tatis. In the case of noxal surrender the solution was not release, but refusal of actio iudicati. No doubt it is possible to find distinctions in these cases, but it seems more rational to regard the rules as a gradual development, in which the Sabinians took the progressive side, but which was hardly complete even in the time of Ulpian.

Some details are necessary to complete the general account of the action. It must be defended where the wrong was done¹. Compensatio is allowed, at least in Justinianā€™s time². Upon surrender the surĀ­renderee normally becomes owner, but not if the surrenderor was not owner, or the slave was ductus because the dominus was absent or refused to defend or surrender. In such a case the surrenderee iuste possidet, and has the Publician action³, whether he knew, or not, that the person sued was not the owner⁴.

There is a curious text⁶ dealing with the exceptio doli, in which Ulpian, after observing that a vendee is not liable for his vendorā€™s dolus, and therefore, if he has need to vindicate the res, cannot be met by an exception based on fraud of his vendor, adds that this is true of other transactions such as permutatio which resemble sale, but quotes a view of Pomponius that it is not true in case of noxal surrender. This is hard to justify⁶. It is clear that the noxal claimant could have recovered the slave from the person aggrieved by the dolus, if he had still held him, and there seems no reason why the dolus of the interĀ­mediate possessor should affect the matter. The rule seems in conflict with the general priority assigned to the noxal claim, which has already been noted and is illustrated by the treatment of cases where the noxal claim and a claim of ownership are competing. If the possessor is sued by A for the slave, and by B on a noxa, and judgment on the vindicatio comes first, the slave need not be handed over till security is given for what may have to be paid on the noxal claim⁷, while if judgment in the

¹ 9. 4. 43. 2 16. 2. 10. 2. 3 ₆. 2. 5. 6.

⁴ Ante, p. 105, mi. 5, 6. ⁵ 44. 4. 4. 31.

6 The reason in the text, i.e. that it was a lucrative, adquisitio can hardly apply to this case, which often had nothing lucrativa about it.

7 6. 1. 58.

noxal action comes first and the slave is surrendered the surrenderor is not liable for failure to deliver under the arbitrium iudicis¹.

It may be convenient to group together the rules as to the effect of death of the slave during the proceedings. If the slave died before the action was brought, or before litis contestatio, the dominus was released, even though he had dolo malo ceased to possess, at the time of the death, unless indeed he were already in mora in accepting the indicium^{[507] [508]. If the death occurred after condemnatio, the primary obligation is as we have seen for a sum of money: surrender is now only a facultative mode of discharge[509]. It appears therefore that death of the slave would not release. An imperfect text of Gaius seems to discuss this case, and the question whether the surrender of the slave dead would suffice[510]. The Autun commentaryā€œ on Gaius carries the matter further. It declares that, after condemnation, the death does not release, but the dominus may surrender the body or part of it, though in the case of animals this could not be done. The text mentions a doubt, whether hair and nails were a part for this purpose, perhaps because they could not be identified, and so, as Mommsen says, would be no check on a false statement that the slave was deadĀ®. The text is very imperfect, but it apparently goes on to discuss, without determining, the question whether this right existed if the death was caused by culpa of the dominus, or in lawful exercise of his power of punishment. It must be noted that all this refers only to death after condemnatio, and that no trace of these rules survives into Justinianā€™s law. The questions therefore remain : what was the rule in Justinianā€™s time as to death after condemnatio, and what was the rule in case of death, pendente iudicio ? It seems to be universally assumed that death after condemnatio did not in any way release the defendant, in Justinianā€™s law[511]. This solution, consistent with the subordinate position of surrender after condemnation3, is probably correct. But it cannot be deduced with certainty from anything said in the sources, and it represents an increased burden on the dominus. As to death after litis contestatio, but before judgment, it may be assumed that the rule was no severer in classical law, and that thus a corpse might be}

112 Death of Slave during the proceedings [pt. i

surrendered, and the view is most widely held that in later law death did not release¹. This view rests on the following considerations :

(i) It is clear that death of the offending animal at this stage did not release the dominus in the actio de pauperie^{[512] [513] [514]. Analogy suggests the application of the same rule to the case of slaves, though the actions were not identical in all respects.}

(ii) In one text^[515] it is said that one who has accepted a iudicium, on account of a slave already dead, ought to be absolved, quia desiit verum esse propter eum dare oportere. This would hardly be said if death after litis contestatio discharged the liability.

(iii) Several texts dealing with one who has dolo malo ceased to possess, make it clear that, in that case, death after litis contestatio did not discharge^[516], and one of them uses words which may be read to imply that the conditions of this action are, in this respect, the same as those of the ordinary noxal action⁸. But these texts lose much of their force in view of the well-known rule that dolus pro possessions est^[517].

(iv) The formula expresses payment and surrender as alternatives, and in alternative obligations the impossibility of one alternative did not release from the duty of performing the other^[518]. But as we shall shortly see the obligation differed in certain ways from an ordinary alternative obligation⁸.

There has been much discussion among commentators as to the essential character of noxal liability as contemplated by the classical lawyers⁸. Is the masterā€™s liability personal or is he merely defending, as representative of the slave, primarily liable ? That a slave is in theory civilly liable for his delicts is shewn by a text which says that he is liable, and remanet obligatus after manumission^{[519] [520]. It is certain however that he could not himself be sued. This has led some writers to hold that the masterā€™s liability is as defensor of a person who cannot defend himself, an opinion which finds indirect support in the texts11. Thus there are texts which shew that the action against the slave after manumission is the same as the noxal action, merely transferred to him18. Other texts expressly describe the action as defensio servi13.}

The expression is of course also applied to defence of property against claims¹, but one text is cited to shew that this could not be its meaning here, since in the case of a son, failure to defend him noxally would not involve loss of him⁸. Similar inferences are drawn from the use of the expressions pro servo, servi nomine, and the like³. Moreover, it did not imply culpa in the dominus: such an idea is inconsistent with the rule, noxa caput sequitur, with the rule that an impubes dominus was liable⁴, and perhaps with the power of surrender.

On the other hand the defensio cannot be understood in any procedural sense. It has none of the ordinary attributes of represenĀ­tation. The vocatio in ius, the formula, the judgment, the actio iudicati all deal with the dominus, and though he cannot be compelled to defend the slave, we have seen that he can be compelled to produce him as if he were being sued for a piece of property⁵. Nor can much stress be laid on the use of the word defensor, since, while the liability of a defensor was exactly the same as that of the person defended⁶, the masterā€™s liability differed from that of the man himself, as the latter had no power of surrender. And though primitive law does admit guilt in animals, the ownerā€™s liability can hardly have been representaĀ­tive: Justinian indeed calls the owner the reus⁷, and the actions are closely analogous. Moreover when noxal actions were introduced it is doubtful whether either son or slave could be civilly liable, and there was then no representation in lawsuits. If we refer the idea to classical times it is no longer true that a son could not defend himself And the common use of such expressions as rem defenders, and pro fundo*, destroys the force of such terms applied to slaves.

The fact seems to be that noxal liability is entirely sui generis: its form is due to its descent from ransom from vengeance. It has points of similarity with both direct and representative liability, and expressions are used implying one or the other according to the needs of the momentā€™.

Another question which has divided commentators is that whether the right of surrender is alternative or facultative¹⁰. It is clear that, after condemnatio, which is primarily for a sum of money, the surrender is merely facultative, in solutions¹¹. Apart from the state of things after condemnation, there are many texts which treat the payment as the primary, the surrender as a subsidiary, liability¹², and several which put

^I 6. 1. 54; 44. 2. 9. 1. Sell, loc. cit. ā€™9.4.33.

Ā»9.4.39.1;2.9.2.1. it was the litis aestimatio which a freeman would have to pay for the wrong^[527].

In fact, here too, the character of the obligation is determined by its history : it is sui generis, and cannot be fitted into the normal moulds. In nothing is this more clearly shewn than in the retention of the power of surrender in the condemnatio. It has been said that this is arbitrium, and the actio an actio arbitraria. This view is based on a text of the Institutes^[528], which, however, as Girard points out, says merely that an actio arbitraria may result in a noxal surrender⁸. The power of surrender is in fact very different from arbitrium: here the discretion is with the defendant ; there it is with the iudex.

The masterā€™s freedom from personal liability depended on a total absence of complicity. If he was ignorant or forbade the act his liability was noxal^{[529] [530] [531]: if he took part, or aided, or connived, his liability was personal and in solidumā„¢. There is a good deal of information as to the state of mind which entailed this liability in solidv/m. Of course, iussum sufficed11. But failure to prohibit, knowing, and having the power, is enough, and this is implied in the word sciens in the Edict[532].}

ch. v] Cases in which Dominus is liable in solidum 115

If the slave refused to obey or was out of reach or was proclamans in libertatem¹, the master was not personally liableā€™, nor was he where, whatever his state of mind, he was not dominus at the time of the delictā€™. Where the dominus was liable in solidum, death, sale or manumission of the slave did not release him⁴, but, as in all delict, the heres was not liableā€™. The personal liability and the noxal liability were essentially one⁸, and thus one liable in solidum could be sued noxally⁷, and the plaintiff could at any time before judgment change from one to the other. And one action excluded the other and thus one sued in solidum, and absolved as not screens, could not afterwards be sued noxally⁸. If the slave was alienated before action the buyer became noxally liable, while the vendor was still liable in solidum*. If the former was sued, Ulpian cites Pomponius as holding that the vendor was released¹⁰. Though the obligation is one the parties are different¹¹. If the slave was freed there is some difficulty as to his liability. If he had obeyed his masterā€™s iussum, he was excused as being bound to obey¹², unless the thing was so serious that even a dominus ought not to be obeyed therein¹³. Celsus thought that if it were a case of personal liability, it could not be noxal, (a view clearly negatived above¹⁴,) and that thus if the dominus was personally liable the slave was not (so that absence of prohibition would serve to excuse him), but that, as the XII Tables speak generally of delicts by a slave as noxal, the liability in the case of failure to prohibit would survive against the slave in that case, but not in the case of the later leges, e.g. the lex Aquilia. But Ulpian, who tells us these views of Celsus, remarks that mere absence of prohibiĀ­tion was no excuse in any case¹⁵, and that the opinion generally held was that due to Julian, i.e. that the rule of the XII Tables, and the words noxriam noxit, applied to the later leges as well, and thus in all delicts, if the ownerā€™s participation was short of absolute iussum, the slave was liable and remained so after manumission. The obligatio in solidum burdens the dominus, but does not release the slave¹⁸. It must be noted that iussum here means command, not, as in many places, authorisation.

¹In which case dominus has no power over him, post, Ch. xxvni.

² 9. 4. 4.pr., 1. ⁸ 9. 4. 2. 1, 4. 1. * 9. 4. 2. 1, 2.

⁶ 9. 4. 5.1. So where the action was in solidum on any ground, 9. 4. 16.

⁶ As in case of noxal liability of dominus and personal liability of slave, ante, p. 108. ā€™ Sell, op. cit. 148ā€”155; 9. 4. 4. 2. Ā« 9. 2. 4. 3; ante, p. 108.

99. 4. 7. Ā» 9. 4. 7. 1.

¹¹ The texts suggest that litis contestatio barred, but it is not clear, and analogy suggests that the bar only arose after judgment (Sell, op. cit. 169ā€”172), while 9. 4. 17. pr. treats this as the civil law rule, relieved against by the Praetor.

19 9.4.2.1.

¹⁸ Atrox iniuria or killing not in defence of dominus, 47. 10. 17. 7, 8; 43. 24.11. 7. Similar rule in criminal law, ante, p. 94.

i* 9. 4. 4. 2, 3.

^M 9. 4. 2. 1. The reasoning of Celsus does not distinguish clearly between Ā«ommand and non-prohibition.

is lb.; 9. 4. 6. Marcellus and Julian: it was not a conflict of the Schools. As the damages would be the same and there could be no surrender it may be assumed that action against one left no action surviving against the other even in Justinianā€™s time.

If a slave has committed several delicts against the same or different persons, the master is released by delivering him under the first judgment¹, e.g. where he stole a man and then killed him^{[533] [534] [535]. This seems to lead, from the rules already statedā€™, to the conclusion that the last of several plaintiffs will keep the slave, for all the others in turn will be noxally liable. This squares well enough with the idea of vengeance[536], and though it looks odd in later law, it is not irrational[537].}

The case of existence of minor rights in the slave has already been mentioned: it will be convenient to set forth the rules in a connected form. We are told that a dominus has potestas over a pledged slave, if he has the means to redeem him^[538], and that in no case is the pledgee (or precario tenens) noxally liable^[539]. The question arises: what is the state of the law where the debtor cannot redeem him ? As we have seen, if the noxal claimant has brought the slave before the court, then, if the dominus is absent, or refuses to defend, the man can be ductus, unless the pledge creditor will take up the defence. But this does not meet the very possible case of the slaveā€™s being kept out of the way by the pledge creditor. It seems that there must have been some machinery for bringing him before the court. The same question arises in relation to usufruct, which is in general placed on the same level, in this connexion, with pledge^{[540] [541] [542].}

Apart from this matter, the rules are in the main simple. UsuĀ­fructuary is not noxally liable, and has therefore, in accordance with principle, a noxal action against the dominus*, surrender by whom, even before condemnation, releases him, and ends the lesser right by conĀ­fusion. If an owner, sued noxally by a third person, is condemned, we have seen that he is released only by paying or handing over the unrestricted ownership. If there is an outstanding usufruct, he can apply to the Praetor, on the opening of proceedings in an actio iudicati, to compel the usufructuary to pay the value of the usufruct, or cede the right itself, i.e. to the dominus¹¹. If on such facts the owner, instead of defending, hands over the slave, he is released from liability¹². But lest his dolus or culpa should injure the fructuary the latter is allowed, there and then, if present, later, if absent, to undertake the defence of

ch. v] Delict by Slave pledged or held in usufruct 117 the slave¹. If he will not, his right is barred, unless he is willing to pay the litis aestimatio¹. If he hands him over he is not liable to the dominus^{[543] [544] [545]. These texts agree with the common sense view that, as the owner is released by the surrender, justice requires that the holders of outstanding rights should also be barred. The case is different where the action against the dominus has reached condemnatio. There is now a judgment standing against him for a sum of money in first instance : deditio is now merely facultative. This is a personal liability of his[546] [547] [548]. He can still be released by handing over the slave, but this is not a result of the rule noxa caput sequitur; the judgment is against him personally and this rule has now no application: the release is the result of an express statement to that effect in the condemnatio, and it requires transfer of complete ownership. Since the injured person has his remedy against the old owner so long as unencumbered ownership is not given to him, justice requires that the holders of minor rights should not be barred, as there is now no question of undertaking the defence. They could therefore enforce their claim at once, and whether they did so or not, the plaintiff, as soon as he knew of the existence of their right, could bring actio iudicati against the old owner, at once, without waiting for actual eviction8.}

Three texts create difficulties in the application of this coherent scheme. One seems to give an action against the fructuary in the first instance*. The facts seem to be that an action has been brought against him as owner: he denies the fact. It then transpires that he is usufructuary, and he is invited to take up the defence. If he refuses his right is barred. Looked at in this way the text says nothing exceptional^[549]. A second text⁸ seems to subject the ownerā€™s right to surrender one, in whom there is a usufruct, to the condition that the surrender is sine dolo malo. This however is not what the text really means. The absence of dolus is not a condition on his right of surrender, but on his freedom from liability to the fructuary for any damage to his interests that the surrender may causeĀ·. The third text is a more serious matter. It observes that if an owner hands over a pledged slave per iudicem, and so is absolutus, he is liable, de dolo, if it shall appear that the man was given in pledge, and this actio doli will be noxal¹⁰. This is a surrender between litis contestatio and condemnatio.

It seems clear that the liability is to the surrenderee. But he does not suffer since on such facts the pledgee could not claim the slave without paying the claim¹. It is a possible conjecture that the surrender was after condemnatio; the word dbsolutus having been wrongly used for officio iudicis liberatus^{[550] [551]. The hypothesis would be that, after conĀ­demnation, the man has been handed over, and the judge, thinking unencumbered ownership has been given, declares the defendant free from liability. But in all probability the text is corrupt or interpolated or both[552]ā€™[553] [554] [555].}

If a delict is committed by several persons, each is wholly liable: judgment and execution against one do not bar action on the delict against the othersā€™. The rule was different, at least in some cases, where the wrong was done by several of a manā€™s slaves. Here the Praetor limited the claim to as much as would be due, if the wrong had been done by a single freeman, with restitution in appropriate casesā€™. The rule did not apply to all delicts, and may have gradually extended from the case offurtum. The privilege seems to have applied to cases under the Edict as to bona vi rapta and to damnum hominibus coactis^{[556] [557]. There was certainly a noxal action, expressly mentioned in the Edict where the wrong was done by the familia*, and one text says that, in noxal cases, the amount that could be claimed was limited to fourfold[558]. The form of the text shews that this was not an express provision of the Edict. The adjoining text[559] [560] [561] [562] observes that the noxal surrender will be only of those who are shewn dolo fecisse; not, that is, of slaves among the homines coacti who may have been acting innocently11.}

As to ordinary damnum iniuria datum, Paul thought the restriction had no application, since each piece of damage was a separate wrong: there were plura facta not unum as in furtum'². On the other hand Ulpian allowed it on equitable grounds, if the damage had been done merely culpa'³. And Gaius allowed it generally, because it might be culpa, in any given case¹. It is clear that there was no Edict as to this, and the varying voices suggest a late development. For iniuria it was never allowed: here there were as many delicts as there were slavesā€” plura facta². There was no such provision in alibi corruptio, partly it seems because of contempta maiestas Praetoris, partly as it contained plura facta. This seems to have been the operative reason, since Octavenus and Pomponius agreed that it might apply, if they procured an outsider to do it, for here there was only unum factum³. Whatever be thought of the reasoning it is clear that it ignores the argument drawn from the contempt of the Praetor involved in the act.

The rules are laid down in detail for furtum*. If the dominus is being sued noxally for one, the action as to the others is suspended, so long as the minimum amount is recoverable⁵: when that has been recovered, all actions cease against any owner or any slave manumittedā€™, and it is immaterial, (so Sabinus and Cassius held, and Pomponius agreed,) whether the amount was made up in money or in the value of surrendered slaves⁷. Even if the dominus has dolo malo ceased to possess, and is condemned on that ground, he still has this protection⁸. And, since the value of all the slaves may be less than the fourfold penalty, he is entitled to absolution if he hand over all the slaves who were in the mischief, having pointed them out himself, not the whole familia³. But previous recovery from a ma/numissus does not protect the dominus, who still has the familia, as it cannot be said to have been paid familiae nomine¹³. The point is that the whole rule is rather an inroad on the rights of the injured person, and to protect the dominus in this case would be to exempt him from liability. For the converse reason, if the buyer of a slave has paid, action against the vendor is barred, for the vendee can recover the amount from him under the ordinary warranty, that he was noxa solutus¹¹. And since legatee or donee of the slave could not so fall back on the old owner, action against them did not bar a claim from the owner of the others¹⁸.

The fact that the rule is a great restriction on the common law liability of the dominus led apparently to a very literal interpretation of the Edict. It provides that the actor can recover only what would be due from a single offender¹⁸. If now the injured person had died leaving two heredes, Labeo held that each of these, suing, would be

ā€? 9. 2. 82. ⁸ 2. 1.9 ; 47. 10. 34. ⁸ 2. 1. 9.

⁴ 47. 6. ⁸ 47. 6. 1. 3; 47. 8. 2. 15. Ā«47. 6.3. jĀ»Ā·.

ā€™ 9. 4. 31.

⁸ 47. 6. 3. 2. In reckoning the amount due, the condictio furtiva would come into account, bo that he must surrender, or permit to be ductl, enough slaves to cover the damages in this as well as in the penal action, 9. 4. 31.

⁸ 47. 6. 1. pr.; 47. 8. 2. 16. M 47. 6. 3.pr. ¹¹ lb.

¹⁸ h. 1.1. The liability did not of course apply to slaves acquired after the offence, 9. 4. 31. ⁸⁸ 9. 4. 31. actor and could recover the whole of the limited amount, not being barred by action by the other, provided of course that the common law liability was not overstepped¹. Cervidius Scaevola repudiates this, on the ground that it would be unfair, and a fraud on the Edict, to allow the heredes to recover more than their ancestor couldā€™. In the same way if the deceased had recovered only part, each of the heirs could recover all that was still due. Scaevola confines them to their shareā€™.

There were special rules in the case of Publicani. Two separate Edicts dealt with their liability for acts of employees⁴, but the compilers of the Digest have so confused them in statement, that it is not possible to make out, with certainty, the original content of each. As they appear, they overlap, but it is now generally agreed that one of them dealt with ademptio vi and damnum, done in the course of collecting the revenue, by the publicanus, or his employees, and the other with furtum, not necessarily in the actual course of collectionā€™. Whatever differences there may have been between the two sets of provisions, the compilers seem to have designed to assimilate them, and they have carried over words from each Edict to the other, so that they are both made to refer both to furtum and damnum. As to the actual content of the liability, Karlowaā€™ detects many differences between the actions, but the evidence for most of them is unconvincing. He is probably right in holding that the Edict dealing with ademptio did not apply to the provinces. He infers from a comparison of some texts, really inconclusive⁷, that the familia in the Edict as to furtum included only slaves, or apparent slaves, of the publicanus sued, while it is clear that in the other case, it covered all persons employed on the businessā€™. He thinks that the action under the Edict as to ademptio was not penal, but the whole content of it as recorded is opposed to this view. He thinks that, in the case of furtum, the action sine noxae deditione was only against the owner, while in the other it was certainly against any of the publicani*.

The rules as to the case of ademptio vi are fairly fully recorded. To guard against forcible seizure by the publicani or their men, they were made liable for any such seizure or damage, by themselves or their staff¹⁰, in the course of the collection, any socius vectigalis being

1 i.e. his share of what the late owner could have recovered apart from this Edict.

2 47. 6. 6.

⁸ lb. It must be added that the whole rule applied only where the master was innocent: if he was scions, he could be sued, suo nomine, and noxally for each of the slaves, 47. 6. 1. 1. No doubt the liabilities are alternative.

⁴ 39. 4. tor.Ā·, h. t.12.

⁵Lenel, Ed. Perp. (French ed.) Ā§ 138; Karlowa, R. R. G. 2. 35.

⁸ loc. cit. 1 39. 4. 1. 5; 39. 4. 13. 2; 50. 16. 195. 3.

⁸ He points out that in the few words on the Edict as to theft, nothing is said as to free employees, 39. 4. 12. 2; cp. 39. 4. 1. 5.

⁹This rests merely on the use of dominus in the singular, 39. 4. 12. 1, Lenel, loc. cit.

¹⁰ 39. 4. 1. Under colour of the abohshed^Vnom capio. liable¹. The action was for twofold within a year, in simplum after a yearā€™, and, as in the last case, the employer was released by payment of what would have been due if the wrong had been done by one freemanā€™. Though the term familia usually covers all slaves, it applied in this case only to persons employed in the collection⁴. There must be a demand for the production of the slave or slaves, or of all the slaves, so that the actual wrongdoer could be pointed outā€™. They might not be defended in their absence⁸, but if they were produced there would be an ordinary noxal action⁷. If they were not produced there was a iudicium sine noxae deditione, whether the defendant could not or would not produce them, and though they were no longer in his potestas*.

The action, though severe in some respects, was mild in others, since the penalty was only twofold, and this included the res, while by the ordinary action it would be in some cases fourfold. Accordingly the injured person, if he could prove the identity of the slave, might proceed by the ordinary action insteadā€™. How far these rules may be extended to the Edict as to furta is uncertain. That it was an independent Edict is shewn by the fact that Gaius discusses it in his commentary on the Provincial edict, and Ulpian in the part of his commentary which dealt with theft: the other Edict was treated under the heading de publicanisā„¢. It provides for an action sine noxae deditione, in the case of furtum by the familia publicani, if the wrongĀ­doer is not produced, whether it was in the collection or not¹¹. It is probable from the allusion to publicanorum factiones'¹ that it applied whether they were slave or free. It can hardly fail to have been penalā€, and probably the penalties were those of furtum. The p/ubli- canus remained liable though he sold or freed the slave, and even if the slave ran away¹⁴. The text adds that if the slave is dead the publicanus is freed, since he has not the facultas dedendi, and has not been guilty of dolusā„¢.

Other cases of exceptional liability may be shortly stated. The special liabilities of exercitor navis, caupo and stabularius included a > h. t. 3. 1.

* 39. 4. 1. pr. Restitution before litis contestatio ended the claim, 89. 4. 1. pr., 5. pr. The text adds that it will discharge even after litis contestatio. This is not an application of the rule omnia indicia absolutoria: restitution is less than the action would give. Probably Tribonian.

Ā« 39. 4. 3. 3. * 39. 4. i. 50. 16. 195. 3. See 21. 1. 1. 1; h. t. 25. 2, etc.

Ā» 39. 4. 3. 2. Ā« 39. 4. 2. 1 39. 4. 3. nr.

⁸39. 4.1. 6. The action being penal lay against heres only to extent of nis profit, 39.4. 4. nr.

If several publicani, liable only pro parte, and, so enacted Severus and Caracalla, for any deficit not recoverable from the others, 39. 4. 6.

⁹39. 4.1. 3ā€”4. ¹⁰ Lenel and Karlowa, locc. citt.

¹¹ 39. 4.12.1. As to corruption and interpolation, Lenel, loc. cit.

1Ā« 39. 4. 1'2. pr. Cp. h. t. 13. 2.

>^d Lenel, loc. cit. Karlowa contra, loc. cit. He cites the rule that it was perpetual (89. 4. 13. 4), but so were many penal actions. See ante, p. 34, and post, p. 122. And the rule here may be a Tribonianism. Gaius would hardly say: hanc actionem dabimus.

39. 4.13. 2.

h. I. 3. The remark would apply equally to the case of a runaway: the rule seems to be the settlement of a dispute and may be due to Tribonian.

122 Other eases of exceptional liability [pt. i liability in solidum for what they had received, salvum fore, without reference to such dolus or culpa, as an ordinary contractual action would have required¹. Thus even if the thing were stolen by a servus exercitoris there was no actio furti noxalis, since the exercitor was liable personally in full, under this special Edict². The action was not delictal or penal: it was perpetual and available against the heres⁹. A still more striking result of its character is that it was available though the injured person were the owner of the slave, and thus would be noxally liable for him⁴. But there was a further liability which more nearly concerns us. There was an action in factum ajgainst such persons, for any theft or⁸ damnum committed by their employees in the course of the business, beyond their liability for goods they had insured⁸. The action was delictal: it involved proof of the theft or damnum, and it was in duplum⁷. It was perpetua and availed to but not against the heres⁹. Death of the wrongdoer did not release the principal, if it was a servus alienus, for as he was definitely hired for the work, the liability was in solidum⁹. If it was his own slave, the liability was noxal, and thus it may be presumed that death released¹⁰.

We have now to discuss the questions which arise where the facts which raise a noxal claim occur in connexion with a negotium between the parties, so that there is, or might conceivably be, an action ex contractu. It will be convenient to consider two distinct cases:

(i) Where there is a contract between the parties, and the slave of one of them commits a delict, in relation to its subject-matter.

(ii) Where the slave himself is the subject of the negotium.

(i) If in the carrying out of a contract between two persons, one of the parties commits an act which is both a breach of the contract and a delict, it is clear¹¹ that in the classical law the person injured could proceed in either way. But the case was different if the person who actually did the wrong was the slave of the party. Here the slave has

^I 4. 9. 1. pr., 3. 1ā€”2; 47. 5. 1. 4. 2 4. 9. 3. 3.

Ā« h. I. 4. ā€? 4. 9. 6. 1.

⁶ As to theft there was a special Edict (47. 5): as to damnum the action followed the Š²Š°ŃˆŠµ rule, but there may have been no Edict, Lenel, op. cit. Ā§ 78.

Š² 47. 5. l._pr., 4. ā€™ 4. 9. 7. 1; 47. 5. 1. 2; In. 4. 5. 3.

⁸ 4. 9. 7. 6; In. 4.5. 3.

⁹ 4. 9. 7. 4; 47. 5.1. 5. The reason of its being noxal is in one case said to be that one using his own slaves must use such as he has, while one who hires must use care in selection (4. 9. 7. 4). In the other it is said that some consideration is due to one afflicted with a bad slave (47. 5.1. 5). It is in fact an application of what seems to have been accepted as a first principle, that a man cannot be liable for his slaveā€™s act beyond his value. Lenel however (Ed. Perp. Ā§ 136) attributes the restriction to an express provision of the Edict, being led to his view by the form of Ulpianā€™s remarks.

¹⁹ Theft severely dealt with because of the circumstances, e.g. theft from wreck, was still so where the wrongdoer was a slave (47. 9. 1. pr.). Conversely the rule that Vi bonorum raptorum was annalis applied where it was noxal, so that a freed slave could not be sued after the year, though the master had not been: the actions were the same, 47. 8. 3. See ante, p. 115.

^IIReff.: Accarias, Precis, Ā§ 856. We are not here concerned with the barring effect of one action on the other. Girard, Manuel, 397. ch. v] Delict in connexion with Masterā€™s Negotium 123 committed a wrong for which a noxal action will lie. It was not the slaveā€™s negotium and there can be no question of actio de peculio¹. On the other hand the master who made the contract has personally committed no breach of it. Hence there arose a difference of opinion, mainly expressed in relation to the case where slaves of colcmus or inquilinus negligently burnt the property. Sabinus held that their dominus could not be sued etc locato, though he could, ex Aquilia, noxally. Proculus however, of the other school, held that he could be sued ex locato, subject to the provision, (due to the idea that a man ought not to be liable for a slaveā€™s act beyond the value of the slave^{[563] [564] [565]},) that he would be free from liability on handing over the slave*. This is the view that prevailed^{[566] [567]}. If however there was any culpa in the actual party, e.g. in choosing, for the care of a fire, unsuitable persons, then he was personally liable in solidum^[568]. The same principle no doubt applied in other cases, but there seems no authority even on the obvious case of a thing deposited, injured by a slave of the depositee. As he was not liable for his own culpa he can hardly have been for his slaveā€™s. As he was liable for dolus, it is likely that the rule in that case was as in locatio.

Where the delict was furtum a difference is created by the fact that the holder may be liable for custodia, and as he is liable for the thing, on the contract, the owner has, on a well-known principle, no interesse and thus no actio furti*. Thus where the slave of the commodatarius stole the thing the owner had no actio furti^[569]. If the commodatorā€™s slave stole it, the commodatarius was liable ex commodato, and had therefore an interesse, giving him actio furti against the commodator^{[570] [571]. Paul quotes this from Sabinus with a further remark to the effect that if the actio commodati is remitted or the damages are refunded the action on theft ā€œ evanesdt The reason of this last rule is not obvious. Many facts, such as release and satisfaction, put an end to rights of action, but this is not one of them[572].}

The explanation seems to be this. Persons who held a mere ius in personam in a thing might have an actio furti in respect of it, but only in virtue of their liability, not on account of the advantage they lost: 124 Delict by Slave the subject of a Negotium [pt. i their right was not considered¹. The whole theory of this interesse of a person with no ius in rem is a juristic development. It is abnormal: it is not thoroughly worked out, and this is not the only point at which its logic breaks down. We know from Gaius, and the Digest^{[573] [574], that an insolvent borrower had not the actio furti, (though Justinian speaks of ancient doubts[575],) yet he technically had the liability. His insolvency did not release the debt: he might be sued on it later. Moreover the texts excluding action by the insolvent refer to insolvency in the present, not at the time of the theft[576] [577] [578]. The abnormal right was allowed only if and in so far as its denial would operate unjustly, and it is clear that in the case of supervening insolvency, and in that with which we are directly concerned, the real interest of the borrower has substantially ceased9.}

(ii) The case is more complex where the slave is, himself, the subject of the negotium. We have seen that the existence of a conĀ­tractual obligation is no bar to that of a delictal. A general view of the texts, dealing with our present topic, suggests that if a slave, the subject of a negotium, committed a delict against his holder, the latter had no delictal action against the dominus, but only the contractual action subject to that right of quasi-noxal surrender which we have just noted as appearing in such actions. But this is not the case, though the rules as given present a somewhat misleading approximation to that state of things. How this arises may perhaps best be shewn by dealing first with the case of the man who is now owner of the slave, but is entitled to hand him back, or is bound to hand him on. Such a person can have no noxal action for what occurred while he was owner*. Justice however may require that he should have compensation, and the sources discuss several such cases. Thus the vir, being owner of dotal slaves, can have no noxal action, against his wife, for what they do^{[579] [580]. But in any action for recovery of the dos, account is taken of the theft up to the value of the slave, and if the wife knew of his quality, in solidum*. So a redhibiting buyer is noxally liable for the man9, and thus cannot bring a noxal action, but he has a claim to compensation ch. v] Delict by Slave the subject of a Negotium 125 subject to pro noxae deditione1. The right of indemnity covered any theft from him whenever committed and any thefts from third persons to whom the buyer had had to pay damages[581] [582].}

Legacies afford an instructive contrast. Where a serous legatus stole from the future heir, before entry, Julian allowed the heres an actio furti noxalis against the legatee, qui legatum agnoverit^[583]. The case contemplated is one of a legatum per vindicationem. On the other hand Gaius tells us that the heres need not hand over a serous legatus unless an indemnity, (not a penalty,) not exceeding the value of the slave, is given to him, and this whether the theft was before or after entry^{[584] [585] [586]. It is clear from the language and the context that Gaius is speaking of a legatum per damnaiionem, in which the heres vrcs owner for a time. The compilers have extended it to all legacies, though, for Justinianā€™s law, Julianā€™s rule would seem the most logical. This is a transference of the kind which seems to lie at the bottom of most of the cases we shall have to discuss.}

The texts dealing with theft by a pledged slave are few, all from the same section of the same book of Africanus. They lay down the rule that, in such a case, the creditor can recover, (by the actio pigneratitia contraria,) an indemnity, subject to a right of pro noxae deditione, where the owner was not aware of the quality of the slave: otherwise he is liable in solidum. There is no hint of furti noxalis¹. Of the texts on which this rule is based one is claimed, by Lenel, as relating to the actio fiduciae*. As, of the others, one merely repeats this, and all are from the same place, it seems probable that all were written of fiducia, in which, as ownership passed to the creditor, there could be no noxal action, and that this is simply a hasty transfer to pignus of rules which developed in fiducia^[587].

Mandate gives similar texts of more various origin. It is laid down that if A buys a slave under mandate from B, and the slave steals from A, and A is not in culpa, he need not hand over the slave till account is taken of the theft, in an actio mandate. Nothing is said of an actio furti. If the mandator knew his quality the liability is in solidum: Africanus indeed suggests that it should be so in any case, since, reasonable as it is that one should not be liable for a slaveā€™s act beyond the value of the slave, it is still more reasonable that a manā€™s unpaid 126 Delict by Slave the subject of a Negotium [pt. i service should not be an expense to him¹. If the mandatarius was careless in trusting him unduly, this was culpa and barred his remedyā€™. These are the views of Neratius, Africanus, Gaius and Paulus. Most of the texts are contexted with the case of the redhibiting buyer. A slave was a res mancipi, and mancipatio, which was at the time of these writers still the usual mode of conveyance of such things, necessarily left the dominium for the time being in the agent. Even by traditio, there could be, at that time, no question of a direct acquisition by the employer. Gaius and Paul are clear on the pointā€™. Here too we have rules laid down for the case where the victim of the theft was for the moment owner, and applied to conditions in which this was no longer the case.

Similar rules are found in deposit, Africanus, citing Julian, being apparently the only authority. The rules are as in mandate, but Julian is not cited as holding the extreme view, that compensation should be in solidum because the service was gratuitous^{[588] [589] [590] [591]. As in pignus, these texts are from the same part of the same work. One is referred by Lenel[592] to the actio fidudae, the other set come from the group of texts already handled, dealing with ownership. It can hardly be doubted that the texts were originally written of fiducia cum amico, which seems to have lasted up to the third century, side by side with the later form of deposit[593].}

In the case of commodatum, there is difficulty. Africanus lays down the rule that, for theft from the borrower by the commodated slave, the commodator is liable by the contrarium indicium commodati, up to the slaveā€™s value, but if guilty of dolus, then in solidum. We have seen reason to think that this text^[594] dealt originally with fiducia cum amico, in which the holder was owner. The same rule is also laid down by the same writer in a text which, as we have seen, Lenel attributes to fiducia*. But Paul, in another text⁹, after remarking that it is doubted (quaeritur) whether, on such facts, the contraria actio suffices, and whether there ought not to be actio furti noxalis, adds that, procul dubio, the commodatarius has furti noxalis, and that the commodator is liable in solidum if he knew the character of the slave. Gradenwitz, discussing another point, has no difficulty in shewing that this text has been altered¹⁰. In Paulā€™s time fiducia cum amico, if not gone, was rare, and Paul doubts whether the rule of fiducia ought to be applied to the ch. v] Delict by Slave the subject of a Negotium 127 newer method. The compilers put into his mouth a reasonable solution for their own times. It is not however clear why they did not deal in the same comparatively rational way, with mandate pledge and deposit. It may be, since their work was done hastily, because no jurist, writing after the decay of fiducia cum amico, hints a doubt, in the other cases. Paul, whose question led to the solution of the problem here, does not suggest a doubt in mandate¹, in which case indeed the double conveyance was still necessary in his day, and he is not cited as discussing the other casesā€™.

In locatio, which had not the same historical associations with ownership in the temporary holder, there is no difficulty. The injured conductor has actio furti noxalis, and has no actio conducti. There has indeed been no breach of contract. If the locator was guilty of dolus there was no right of surrender^{[595] [596] [597].}

Two texts only seem to deal with the case where the thieving slave had made the contract, as to himself. They relate to cases under the Edict as to nautae, caupones, etc., and the special rules there applied destroy the significance of the texts in the present connexion. But they are noticeable on other grounds. In one of them^[598] it is said that an ordinary noxal action lay for a delict, by the vicarius of a slave exercitor, to which the exercitor was privy. This only illustrates the rule that contractual relation did not exclude delictal. The other, also from Paulā€™, deals with a slave, exercitor sine voluntate domini, on whose ship something perishes, the liability here being independent of culpa and thus not necessarily delictal. If the loss is caused by the slave exercitor, there is a right to noxal surrender, if the actio exercitoria is brought against the dominus. This is a normal application of the principle that a man ought not to be liable on a slaveā€™s act beyond his value⁶. But some cases arising out of the common case of a free exercitor do not seem quite logical. We have seen that an exercitor was liable for furtum or damnum by slaves employed in the shipā€™, but that in the case of his own slave the liability was noxal⁸. This agrees with the foregoing principle but hardly with the basis of the whole liability expressed in the same text, i.e. that it was his own culpa for putting such slaves on such businessā€™.

128

Noxal Interdicts

[pt. I

Some interdicts have their interest from the point of view of noxal surrender. Possessory interdicts are not delictal. Those dealing with public rights are not noxal: for interference with public ways and the like, a slave, it is said, was to be flogged by any who detected him¹. But there are two interdicts which are expressly described as interdictĀ», noxalia. They are Unde vi and Quod vi aut clamā€œ. They have peculiarities of detail, but no real departure from ordinary principles. The interdict unde vi speaks of deiectio by the defendant or the familia ^{[599] [600] [601] [602], which covers one or more slaves* or persons actually held as slaves[603] [604]. If it were ex voluntate domini, or ratified by him, it was his deiectioā€œ. Apart from this his liability for slaves is not in solidum, though the Edict specially mentions them: it is a case for noxal surrender, for though the facts are criminal under the lex lulia, the interdict is merely penal[605]. If he will not surrender he must pay in full, and he must in any case refund what he has received[606].}

In the case of opus vi aut clam factum, the rules are more complex. The interdict is to secure the undoing, with necessary compensation, of any opus, done vi aut clam, on the plaintiffs property: it does not expressly mention slaves^[607]. If it were iussu domini it was his act^{[608] [609], unless he ordered it not intending secrecy, and the slave, knowing the other party would object, did it secretly. Here it was noxal11. The liability is either (i) to put the matter right, or (ii) to let it be put right and surrender the slave, or (iii) to pay the cost of putting it right1'*. If the slave has been alienated or freed, or has died, the master is only bound to let it be put right, the freed slave being liable to pay the cost, and a buyer of the slave being similarly liable with a right of surrender13. If the master will not let it be undone he is as liable as if he had done it himself14. One important point remains. The noxal liability of the slaveā€™s owner arises only if the act was done in his name, or on his account, or mero motu by the slave. If it was done for a temporary employer it is against him that the interdict should go15, and he has not the privilege of surrender. If the owner of the slave or any buyer has made full compensation there can be no proceedings against the dominus operis, but if only noxae deditio has been made, the interdict may still go against the dominus operis, for compensation, no doubt, less the value}

of the slave^[DCX]. The absence of liability for what the slave does at the behest or on account of a third person is due to a juristic inference from the fact that that other is liable, and this in turn is due, says Labeo², to the fact that the interdict says quod factum est, and not quod feceris.

We know that there were noxal provisions in the XII Tables, in the lex Aquilia and in the Edict³. As rules of law are constantly built up on the words of enactments we might expect differences. We have seen some differences in detail, but there remains at least one important distinction in principle between the rules in furtum and those in damnum. Celsus observes that the XII Tables declare the dominus liable servi nomine for the slaveā€™s wrong, whether privy or not⁴. Hence the liability is noxal, and follows the slave. But in the case of the lex Aquilia, if sciente domino, it is a direct liability of the master and the slave is not liable. But Julian, Marcellus and Ulpian are agreed that there is no difference: the words noxiam noxit and the rest, in the old law, apply to later leges as well, so that both master and slave are liable. The difference is thus overridden, but it is important to notice who the jurists are who observe the difference and see a way out of it⁵.

Another difference is more striking and important, for it remained. Ulpian tells us that if a slave is in fuga, the dominus has furti noxalis against a bonae fidei possessor, for since he has not potestas he is not noxally liable for him⁸. He cites Julian in support, and Paul also holds the owner not liable⁷. And the liability of the bonae fidei possessor is laid down in many texts which seem conclusive⁸, though one text of Justinian in his Code hints a doubt⁸ It so happens that an opposite rule is laid down for damnum on both points, by Julian, Marcellus and Ulpian¹⁸ If a slave occidit, the owner is liable and the bonae fidei possessor is not, and the dominus is liable for the slave in fuga. What is the cause of these distinctions? They are so sharp and rest on such circumstantially stated authority that it is difficult to dispute their genuineness, and they are so connected that it is a priori probable that they rest on a real distinction of principle. This impression is strengthened by the fact that the jurists who support these distinctions are those whom we saw considering another possible distinction of principle between the XII Tables and later legislation. Yet attempts to explain away the texts have been made persistently even so far back as in the Basilica. Most of these attempted explanations have been reviewed and shewn to

¹ 43. 24. 7.1. Why does dominus surrender if the dominus opens is the person really liable? Perhaps A's slave, mero motu, secretly does, on Bā€™s land, work which injures C.

²43. 24. 5.13.

⁸ G. 4. 76; In. 4. 8. 4; D. 9. 4. 2. 1; 47. 1. 1. 2. There were also the interdictal cases just be unsatisfactory by Girard, and they need not be stated in detail here¹. Among the older explanations are those of the Basilica, (shared as to the case of fuga by the lex Roman a Burgundionum², and formerly by Lenel, who now admits its insufficiency³,) the framers of which are plainly dissatisfied with them, Cujas (shared by Pothier as to the case of fuga) and Voet. Pernice⁴ holds that the rule as to fuga, in damnum*, is a mistake of (Jlpianā€™s, but Girard observes that Julian is in the mistake on both points, and the same may be said of Marcellus⁶. Grueber⁷ thinks no satisfactory explanation of the difference between damnum and furtum has been given. He does not notice the difference, in the case of fuga, and seems to regard the rule that a bonae fidei holder is not liable⁶, as the normal one, and the texts laying down the other rule for furtum as needing explanation. He ignores the whole theory of Potestas.

Girard considers that there is a difference of principle. He traces it to the wording of the formula, based no doubt on that of the lex. The whole theory of potestas is the work of the Jurists. It was readily applied to the fluid words of the Edict and to the not very precise language of the XII Tables, but no existing text applies it to cases under the lex Aquilia. Something in the lex made it impossible. This he conjectures to have been an energetic reference to the dominus as the person noxally liable, as in the converse rule : ero, id est domino, competit³. In support of his view he cites the words (applying them to the lex), verba efficiunt ut cum noxae deditione damnetur³. He points out that while several texts¹⁰ say that one who, on interrogatio in iure, says that anotherā€™s slave is his, is noxally liable, one which says the same for damnum¹¹ adds, quasi dominus, as if this needed emphasis here. It may be further noted that in one text¹² the difference between furti aut damni in one line, and furti alone later on seems to turn on this disĀ­tinction, or at least to make it clear that, in Melaā€™s opinion, the actio noxalis Aquilia did not lie against a mere possessor, while other noxal actions did. Moreover exactly the same point is made on the same verbal ground in connexion with the Sc. Silanianum¹³.

Upon all the evidence Girardā€™s theory seems to earn acceptance. It is not generally adopted, but it has not been refuted¹⁴.

¹ Nonv. Bev. Hist. 11. 480 sqq. Those explanations which do not regard the divergence as simple error explain the two rules in damnum independently, though it seems obvious that they are connected. ² Bas. (Heimo.) 5. 289; Lex Rom. Burg. 15.1.

⁸ Ed. Perp. (French Ed.) 1.180. ⁴ Akad. d. Wissens. Berlin, Sitz. 1885, p. 454.

⁸ 9. 2. 27. 3.

6 Accarias (Precis 2. 1048) gives another explanation. The slave is the instrument. The 6ona>j£de possessor has not handled. How can he be liable? The dominus is made liable in order that some one shall be. Apart from its speculative nature, this assumes the delict to be the employerā€™s, which it is not, though the liability may be.

7 Lex Aquilia, 82. ⁸ 9. 2. 11. 6.

Ā® 9. 4.19. 1. ¹⁸ 9. 4. 26. 3, 27. 1; 11. 1. 16. 1.

u 11. 1. 8. ia 40. 12. 24. 4. Ā» 29. 5. 1. 1, 2.

¹⁴ Lenel declares it inacceptable Qoc. cit. n. 3). Kipp rejects it for inherent improbability, Z. S. S. 10. 399sqq. (a review of Girardā€™s essay).