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distinctions, attache ali the advantages hic the ormerrem y possesse to the actioni stipulation, when employed so the recover os a do-y. The sorme actio being thus, a judicious reform abolished that o stipulation, by whichit has Me replaceo, has desere ly been invested with ait thecharacteristic os an equitable action, soriar as and wheneverit imbrought so the recoverno a dow . e have also given mons entille to sue sor suc recovery a tacit hypothecove the hvsband' proper , hut this right is notri give any priorit ove other hypothecar creditor except where it is the wis herset who sues to recove her dowry it bein inher interest only that we have made this new provision In 30 equitable actions the uom has ullio e to asses o modan fair ground the amount due to the laintissi an in sodoin to tali into account counterclaims of the defendant, condemning the lalterint in the balance Even in actionso strict a counterclaim have been permitte since a rescript os in Emperor arcus, the defendant meetin theplaintiss' claim by a plea os haud Bymur constitution howeve a wide fiet has been given to the principiem set-ossi hen the counterclaim is clearly established the amount claime in the laintiffs action, hether realis personat, or Whateve ita nature, hein reduce by operationis law to the extent of the desendant' counterclaim. The oni exceptionis this ut is the actionis deposit, against hich, have deeme it nocles than dishonestrio allow any counterclaim tobe set up sor is this ere permitte person might be raudulenti prevente stom moverin properi deposite underine pretence of a set-off. here are som actions again Whichral e cali arbitra , Minus their issu depend on an ais trium' or orderis the udge. ere, unies o such orde thedefendant satisfies the laintiae claim is restoring or Producing the proper , o by persormin his obligation, o in anoxa actio hy surrendering the milty flave, he ought to becondemnecl. Some of such actions are reat, ther PerSonat.
The forme are exemplified by the Publicia action, the
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Servia actio sor in recovernos a tenant sarmes stoch, and the quasi-Servian or so-calle hypothecary actiona the larieris the actions on intimidatio an on fraud by that so the recover of a thin promise at a particula place, an is in actio claimin productio os proper . In ali theseactions and ther os a simila nature, the jude has ullpower o determine n goo an jus grouncis, accordin tothe circumstances of eac particular case therior in hichreparation uot tot made to the plaintissi
awar as definite ascis possibie, hether i relate to the paymentis moneno the delivernos property, and this even inenthe pliantiae clatiis altogether unliquidated. 33 Formerly is the lainti' in his statement of laim, demande more than he was entille io, his case et to theground that is, he lost even that which was his due, an insuch cases in praetor usuali decline to restore him to his Protous Position unies he was a minor sor in his matterto in genera rule was observe os givin relie to minors after enqui made, is it were prove that he had made an errori in to thei lac os years Is howeve the mistahe was entiret justifiable, an such acto have possibinmisi even the discreetes of men, relies Was afforded even to persons os sul age, as in the casei a man who sum so the whole os a legacy, os hic part is ound is have been taken way bycodicil subsequently discovered or here suci subsequently discovere codicil give legacies to other persons, so that thetota amountinive in legacies hein reduce unde the lex Falcidia, theirs legate is ound o have claime more manthe three-Murths allowed by that statute. Ove statementis claim inhes ou sorms that is it ma relate eithe to the objeci, the time, in place, o the specification Ailaintissmahes an overclaim in the object when, sor instance, he suessor twent aurei,hil only te areis in to him, or hen, in oni part wner os property, he sues o reCove thewhole or a greater portionis it than hecis entille to O Dclaim in respectis time occum hen a man sues sor moneybesore the da fixe so payment, or hesore the sulfilmentissa condition on hic payment was dependent sor exacti as
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is helda mali an overintaim. Over-claim in respectis placeis exemplisi in man uinyatine placessor persormanceis promise hic it Was expressinagreed was tot persormedat another, wit ut any reserence, in his laim, to the lalter as,sor instance, isti man, aster stipulating thus moFou promise topana Ephesus p were to laim the monerias due a Rome, Without any addition as to Ephesus. his is an ver-Claim, be-
cause by alleging that the moneycis due a Rome simp*, theplaintiis deprives his dehior of the Qvantage hemight have derived rom payinnat Ephesus On his account an arbitra actio is give to a plaintis Who sues at a place ther hanstat agreedipon o payment, in hic the aduantam hichthe deblor might have had in Uing at the lalter is alieninio consideration, and whic usuallyris greatest in connectionWit commodities hic vary in price rom districtrio districi, such as,ine, ii, o grain incleed even in interestincloansos moneycis disserent in different places Ismowevera plaintisssues at Ephesus-that is in ur example, at the place agreedum sonthe payment-hemeed domo more than simply allegeste debi, a the praetor to potnt out, hecause the deblor hasal in advantage whic payment in that particular place gives him. Ove claim in respectis specification closely resembles er-Claim in respectis place an may be exemplifled by aman s stipulating romao 'do you promiserio convenStichusor te aurei γ' and then suiniso the one or the ther-that isto say, eithe so the flave only, o so the money only. Thereason Why this is an over-claim is that in stipulations of thissor it is the promisor ho has the election, and who maygive the lave o the money, hiCheveris presers consequently is in promise sues, alleging that either the moneyalone, o the lave alone, ought to e conven to him hedeprives his adversis of his election, and there suis him in a Worse position while he himsel acquires an undue ad vantam Other cases of this sormis over-claim occur herea man, havin stipulate in genera term for a lave, sorWine, o sor purple, sues sor the particula flave Stichus, orso the particular in o Campania, o sor Tyria purple
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sor in ali os these instances he deprives his adversatros his election, ho was entilled, unde the term os the stipulation, to discharge his obligation in a mode ther tha that whichis require of him. An even though the specific trinisor Whic the promise sues heis litti or no value, it is stili mover-claim sor it is osten easter sor a detitor to panwhat is os greate value than what is actuali demande os him. Suchwere the rules of the older law, Whic however has been mademore libera by ur Wn and Zeno' statutes. Where theover-claim relates to time, the constitutionis Zeno prescribes the prope procedure cis it relates to quantity, or assumes myother sorm the plainti' a We have remarhed above is to becondemne in a sum equivalent to three time any los which34 the defendant may have sustaine therehy. I the plaintimin his statement of claim demand les than is his due a sorinstanc is allegin a debl sive murei, When in actine iso e ten, o by claiming oni hal os an estate the whole os whic reatly belong to him, he runs nouis inere, sor, the constitutionis Zeno os sacre memory the udge Wil in
the fame action condemn the defendant in the residue a well35 as in the amount actualinclaimed. Is he demand the wrongthin in his statemen os claim, the rule is that he runs norisk sor is he discover his mistahe we allow him to et it right in the fame action. For instance, a plaintiWwho sentitie to the lave Stichus may laim Eros oris may allege that he is entille to a conveyanc unde a Will When his right is ounde in realit upo a stipulation. 36 There are again ome actions in hich, do no always recove the whole os,hat is due torus, but in hich e some- time get the whole, somelimes onlysare For instance, is the sun to hic ou claim looks o satisfactioni fine peculium os a son in poweri a flave, an it is sufficient in amount tomeet that laim, theriather o master is condemne to pay the whole debi; ut is it is no sufficient, the judge condemns him to p ininso far alit,illio Osthemocleis ascertaining the amount of a peculium, Wil spea in iis prope place. 37 Sorio is a woman sues sor the recovernos herHow , the ruleis that theiushan is to e condemne to restore it ni Sosar ache is able that is, o sar as his means permit Ac-
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demne to pay onlyra much asine is able. The amount of the wise' claim is also usualty lessened by the hvsband's rightos retaining some portio sor himself, hic he may do to the extentis any utlay he has made fido properim accordingto the rute, state in the large work of the Digest that adowrnis diminished by operation os law to the extent os allnm Sary ouila thereon Again is a man goes to law wit 38 his parent o patron, o is one Parine bring an actio of rinerahi against another, he cannotinet judgmen sor morethan his adversarmis ablerio pay. The rule is the fame whena mancis sued on a mere promise to give a present. Vernoste asto a plaintis obtain judgmen sor les than he was wed through the defendant' pleading a set-ofs: sor, as has almady been observed the Judge, acting on equitabie principies, Mould in suc a case ais into account in cros demandi in fame transactionis the defendant, an condemn himoni in the residue S to is an insolvent person, ho 40 Surrendere ali his effecta to his creditore acquires reshpropere of sufficient amount to justis suin a tep, his creditore a sue imasresh, an compet imo satis*ine residue of their claim soriar asine is able but notri give
O CONTRACT MADE ITH PERSON IN POWER. As we have atready mentione the actio in respectis the peculium os children in powe and flaves, we must nomeXplainit more sully, and wit it the other actions is hic satheman master are sue so the debis of thei sons o flaves. Whether the contracti made wit a flave or it a chil inpoWer, the rules tot applied are much the fame; and there-sore t mahe our statements as hortos possibie, e ills - ων os flaves an masters premising that what, s of them is true also os children and the parenta in Whosesso er
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master, the praetor allows the lalter to e sue so the wholoe amount sor it is on his credit that the ther par uelles in making the contract. O the fame principi in praetor granis in other actions in hic the whole amount due mavbe sue sor that calle exercisoria, to recove the dehi os a Ship-master, and that calle insti oria, to remve the dehi of manager o factor. The forme lies against a master holias appotnte a lave to e captain os a Ship to recove a debl incurred by the flave in his character os captain, anesit is called exercisoria, because the person to whom the atly profitsos arahimbeloniis termed an exercitor. The lalter lies against a man who has appotnted a flavedo manage a shopir businem, to recover any debl incurred in that businem cibis called infriatoria, MCause a Person appotnte to manete a busines isterme an institor An these actions are grante by the
praetor even is the person homine et ove a hip a ShoP, o any other business, he a me an or another man' Slave,
b ause equit requires thei application in these lalter cases 3 nocles than in the ormer. nother actio of the praetor's introductio is that calle tributoria. Is a flave, it theknowledge of his master devotes his peculium to a trade orbusiness, the rule hic the praetor sollows, in respect os contracta made in the coum os such tradet business, is that the peculium so investe an ita profit shali e divideo he een the master, is anythiniis due to him, and the ther creditors in the ratio os thei claims. The distributionis theseassetiis test to the master subject to this provision that any crpditor,ho complain os having received les than his proper Ahare cambring this actio against hi sor an account Thereis also an actio in respectis peculium and of what has Menconverte to the se of the master, unde which, is a debl hasbeen contracte is a flave without the consent of his master, an some portion thereos has been convertexto his ses, hecis liable to that extent, hile is no portio has been o converted hecis liable to the extentis the flavess seculium Conversion to his se is an necessar expenditur on his
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account, a repaymen to his creditor os mone borrowed, repatris his salIlinthouse, purchase of com soriis flaves oriosa estate sortim, or annother necessa . Thus, is out os tenore Whic mur lave horroWs rom Titius, he pay mur creditor five, an spend the remainde in ome the way, yomare ii te so the whole os therave, an so the remainderis the extent of the seculium : and rom this it is clea that is the whol te were applied to ou uses Titius could recoverthe whole rom ou. Thus, though it istut a single actionwhich ichrought in respectis seculium an os conversio touses, it has , condemnator clauses. The judge by whomine actio is trie fimi ooks to se whether here has been any application to the uses of themaster, and does not proceedio ascertain the amount of the seculium untes there has beenno such application, or a partia application only. In ascertaining the amount of the seculium deductio is first ad os hacis owe to the masteri an person in his power, and the residue ni is reate a seculium though sometimes
hat a flave wecto a person in his master' power is notcleducted, sor instance where that person is another flave whohimself belong to the peculium; thus, here a flave we aclebi totis own vicaria flave, it amount is not deducted stomthe seculium There is no doubi that a person it whomini flave enter into a contractis in biddingis his master orwho an sue by the actions exercisoriam institoria, may inlle thereos bring an actio in respectis the seculium an os conversio toruses; ut it,ouldi most Oolisti os him to relinquis an actio is hic he may wit the greates easer ove the whole os,hat is owin to him unde the contraci, and underiali in trouble os provin a conversion to Ses, rine eκistenceis a peculium sufficient in amount to cove thewhole of the deh Sono a plaintiff.ho can sue by the actioncalled tributoria mansue in respectis seculium and conversionto ses, an somelimes the ne actio is the more advisabie, somelimes the other. The orme has this advantage, that init the master has no prioritn there is no deductionis dehiso indito him, but he and themther creditor stand on preciselythe fame ooting while in the actio in respectis peculium deduction strat ad os debla win to the master, hocis
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19 BOOM IV. condemne to a ove to the creditor only hat heri remains On the theriand the advantage of the actio in respect of seculium is that incit the lave' whole securium isti te to his creditore, hereas in the actio calle retibus' onlyra much scit is labi ascis investe in the trade orbusiness and this may be only a third, a Murth, or even a temfraction, hecause the lave may have in rest investe in lancior flaves, o out oncloan. A creditor ought theresore to selectthe ne or the ther actio is considering thei respectivoe vaniam in eac particular casea thoughi certaininoughtto choos that in respectis conversio toruses, is he in proves such conversion. What we have said os inediabilitnos a masteron the contracts of his flaveris equali applicabie here thecontractris made by a child or granochil in the power of his orier satheri grandiather A specia enacimen in savouros children in po er is mund in the senatusconsultis Μacedo, whic has prohibite the ovin os loans os monent suin persons, an resuse an action to the tender both against thechild whether heie stili in power, or has become independenth deat os the ancestor or emancipation, and against theparent, Whetherae still retain the chil in his D er, o has emancipate him. his enaciment Was made by the Senatebecauserit,as ound that person in poWer, he dragmodown by the burdenis Ioan whic the had squandere in profligacy, osten plotted against the lives of thei parenis. Finalty it hout be observe that where a contractis
Me entere into is a flave o son in power at his master' orparent's bidcling, or here there has been a conversion to his uses, a condictio may bearought directly against the parentor master eκacti ascis he had been in origina contractine pari in person So too, herme a mancis su te by either
of the actions called exercisoria an institoria, he may in limthereos, heraued directi by a condiction, cause in effect thecontrac in such cases is made at his bidcling.
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NTLES UT ULLA I9IOutrage is committed is a flave, a noxa actio lies agminstine master Whoin Ming condemned has in optionisi ingine clamam awarded, o surrendering the lave in satis ifactio os in injury. The wron oer, that is, the lave, is calle noxa noxia is the term applied to the wrongilaeis, that is, the inest, damam, robbery, or utrage This a principi os noxa surrende in te os p in damagesawarcle is based on mos excellent reason, sor it would eurius that in miscleed os a flave si ut involve his master in an detriment Myon the los of hic dy. Isti master is a sue is a noxat actionis the ground of his flave' delici heis rete e seo ali liabilit by surrendering the lave in satisfactionis the wrong, and by this surrende his right ofownershimis permanently transferre&; though is the flave canpro re nough monent compensate the surrendere in ullso the wronche di him, he can, is applyin to the praetor,get himself manumitte even against the wil os his ne master. Noxa actions ere introduce parti is statute,
partly by the Edictis the praetor so thesi, by the statute of the welve abies sor unlawsul clamam, by the lex Aquilia
sor outrage an robbery by the Edict. Oxat actions alway ssollow the personis the wron Oer Thus, is your flave cloes a Wron while in Your power, an actio lies against om is hes comes the propere os some ther person, that ther sine prope person to e sued an is hecis manumitted he comes directinan personalty li te, and the noxat action is extinguetshed. Conversely, a direct actio manchange intonoxal thus, is an independent person has done a Wrong, and the hecomes mur flave ache may in severat ways described in the fidit Boon, a noxa actio lim against yo indie of the direct action hic previousi lay against the wrongcloe in person Butis actio lies sor an offence committe by a 6 flave against his master sor etween a master an a flave in his power there an e no obligation consequently i theslave hecomes the propertros some ther person, Orci manumitted nettherae nor his new master an e Sued and onthe fame principie is another man's lave commit a rongagainst ou, and then ecomes mur proper , the actio is
extinguished hecauserit has come into a condition in Which
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an actio cannot eκist the resul Ming that even is the flave passes again ut os your Ower o cannot sue. SimilaHY, is a master commit a ron against his flave, the lalter cannot suetim aster manumission o allienation Theseruies
were applied by the ancients to Wrong committe by chilorerii power nocles than by flaves; ut the seelingis modem times has rightly rebelle against such inhumanity, and noxalsurrenderis childre unde power has quite gone ut os use Who could endure in thi Wanto ove vina Son stili more adaughter, to nother, hereb the ather ould e κ seclto greater an is in the person os a so than even the latrer himself hile mere decenc sorbid such reaiment in thecaseis a clauoten Accordingly, noκal actions are permitteaonly Where the wrongcloe is a flave, an inclee we n it osten laid clown by old legat writers that sons in power mav raued personali sor theiriwn delicis. TITLE IX. O PAUPERIES, R ΑΜΑGE DONE B QUADRUPEDS. A noxa actio was grante by the statute of the welve Tabies in cases os mischie done through antonneSS, passion, o serocity by irrationa animal itiein by an enacimentos that statute provided that is the wner os suc an animal is ready to surrende it a compensatio sor the
i causing the clamage the animal is actin contra clo iis natura disposition cis it naturei tot savage, his remedyis no avallabie Thus, is a bear runs way srom iis omer, an causes clamam, the quondam o ne cannot be Sued sorimmediatet with iis scape his ownerahi ceased to existi The term pauperies, misclites, is sed to denote amagedone ithout there bein an wron in the oeris it sor ariunreasonin animal cannot e sal to have done a rong. Thus sar a to the noxia action.