The Institutes of Justinian

221쪽

either h1mself or through another, et is it wtis no with the intentionis abandoning the thing that he lest it, but with thatos subsequently returning orat he is deeme noto have parte Wit the possession Through What persons e Canobisin possession has Men explaine in the secon Book; an it is agree o allisand that sor obtaining possession intention alone cloes no sumce. An interdici sor recovering 6 possession is granted o person who have been forcibly ejectediso land or bulldings thei proper remedwbeing the interdict de vi, by hic the Hector is compelle to restore possession even though i ha been originali obtaine Domisimis in grante os in interdictis sorce, clandestinely, o hypermission But by imperial constitutions a We have almaclyobserved is a man violenti seletes o propere to hic hehas a ille, heriorisit his right os o nership inon propertywhic belong to ome ne else, he has no onlyrio restore it, ut also to a the person hom he has violenti dis- possesse a sum os money equivalent to ita value. In cases os violent dispossession the wronNoe is liable unde the lex Julia relatin is private or public violence, by the former in meant unarme force, by the latis dispossession L secte Min arms and the term a s mus M aken to include notis ly Ahields, s oros, an helmela, but also stichsan stones Thirclly, interdicta re divide into simple and 7 double. Simple interdicis are those herein ne pari is plianti and the ther defendant, ascis alway the case inordem os restitution or production sor he ho demands restitution or productio is lainti' an he rom ho itis demande is defendanti Os interdicis hic omero, Stention om are simple, iners ouble. The simple are exemplifie by those herein the praetor command the defendant to abstain sto desecratin consecrate ground Orsrom obstructin a public riveris ita banis sorte ho demand such orcle is in plainti' and he whocis attemptingio do the ac in question is defendant os cloubie interdicta e have example in Uti possidetis an inrubi the are calle double ecause the ootin os both partim is eques,

222쪽

To spea os the procedure an result os interdicis uncier the olde iam ould no he a Waste os Woms sor hen the procedure is halcis calle& extraordinar lascit is noWadam in ali actions the issu os an interdici is unnecessa , the

I should here M observe that great alns have beentaken by thos in in times pastina charge of the law tocleter men hom rechless litigation, and thicis a thing that ineto have at heari. The est means os restrianing njusti- flabie litigation, hether o the par os a plaintifris of a defendant, are mone fines the employmen os themath, arici I the ea os insamn Thus, under ou constitution themath has to e taken by very defendant, hocis no permitieci even to state his defenc unti he wears that he resista theplaintifrs claim cause he helieves that his cause is a goocione. In Certain cases here the defendant dentes his liabili in actio is sorioublei trebi the original claim, as in pr- creding on unia sui damam, an sor recover os legacies bequeathedri religious places. In various actions the damagesare multiplied at the ouiset in an actioni thest detecte in the commission inenare quadruples sor simple inest thenaredoubled sor in these an some ther actions the damagesare a multiple of the laintiae loss, hester heraesendarit dentes or admit the laim Vexatious litigation is checheclo the partis the laintis also, Who underisu constitutioriis oblige to wear on ath that his actio is commericis in mod aith; an similar ath have o M aken by the advocates os both parties, ascis rescribe in ther os urenacimenta. win to these substitutes the old actio ofdishonest litigation hac come obsolete. The effectis this was to penalis the plaintiis in arient partis the value he

223쪽

Penalty Was neve exacted, and theresore iis place has Mentaken by the oat a ve mentioned, and by the rule thata pliantis Who sues Without jus cause must compensate his opponent for ali losses incurreri, an also panthe cost os theactio In som actions condemnation carries insamy wit it aas in hos o inest, robbery, utrage, fraud Mardianshise, agen an de sit, is direct no contra also in the actionon parinership, hic is always direct an in hic insamy is incurre by any parener Who suffers condemnation. In actionso inest, robbery, utrage, an fraud, it is no oni insamousto e condemned, ut also in compound as inde cis onlyjust sor obligation based on delici differs widelydrom obligation has in contrare. In commmcin an action, therarat ste depend upo that 3 par of the Edict whic relates to summons sortesore anythingislse is done the adversa musti summoned that is tos , mustae calle hesore the judge horis to try the action. An herein the praetor ahes into consideratio the respectdue o parendi, patrons, and the childre an parent os patrons, an resus 'o allosa parent tot summone is his child, or a patroni his reedman, unies permission sorio do has Men aske os and obtaine stomisim an sor non-

the fim is notrio judge contrarnio statutes, the imperial laws, an custom. Accordingly, is hecis' in amoκal action, and 1 thinks that in master ought to b condemned herahould becaresul to or his udgment thus condemn ublius Μaevius to ante aurei to Lucius Titius, o to surrende tohim the flave that id the wrong. Is the actio is eat, an hefind against the plainti' he ought to absolve the defendant; is against the lauer, he ought is orcle him to give u the Properi in question, long with iis ruits Is the defendant pleias that hecis nablerio mata immediate restitution and

224쪽

term of his fi in a furet to marante payment of thedamages assessed is restitution e no made ithin the time allowed. Is in subjectis the actionis an inheritance, the Same ut applies a regardisruits as e laid down in speakingos actions so the recovernos single objecis Is the defendantis a mala fide possessor, sevit Whic but sor his own negligencehe might have gathere are alien into account in much thesme Way in both actiona hut a bona fide possessor is nothel answerable so fruits whichine has not consume o hasno gathered, except sminthe moment of the commiscementos in action, aster hic time account is ahenos et offruits hic might have been gathere but sor his negligencea as of those hic have been gathere an consumed. f the objectis in actionis productionis proper , iis mere μω ductio by the defendant is no mough, ut it mustine ac- companted by mery Qvantam derive seo it that is to say, the laintis mustine place in the fame position he would have been in is productio had been made immediastino the Commencement of the action. Accordingi is, cluring thedelar occasione by triat, the possessor has complete atille to the properi is usucapion, he wil notis there save seo hein condemned. The juclge ought also tori einto account the mesne profits or ruit produce by the properi in the intervat etween the commencement of the actio an judgment. Is the defendant lead that he is unable to mali immediate production, an applies sor astay, and suc application appeam to e in mo satin, itshould e grante on his ovin securi that he wil renderu the property. sine either complies at once Wit thejudge' orde so production, nor gives securit sor cloin soasterwams, he ought tot condemne in a sum representingine plaintiffs interest in havin productio at in Commenω- mentis the proceeclings. In an actio so the division os a family the udge ought to assim to each of the heir specificarticles elongin to the inheritance, an is one os them is undul savoured, to condemn him, a We have alneady said topa a fixe sum to the ther a compensation. inmin the

225쪽

one case Where this is sori here, namely, Convenience requires

that the lineis separation belween fieldi longingeto differento ners hali e more clearly marhed than heretosore, and where, accomingly, it is requisite to adjudge par of the one's fiet to the owneris the other, ho ought in ConsequenCe, tobe orderesto pana fixed sum a compensation to his net bour. Another ground sor condemnation in his actio is the om- missionis an malicious aci, in respectis the boundaries byesther of the parties, such as removat os landm ks, o cultingdown bounda arees as also is contemptis Couri, eXPr Sed by resusa io allo theraeicis to e sumen in accordance With a judge' order. Whereve properi is adjudge to a pari in annos these actions, he at o e acquires a Complete titie theret

indee is there any resemblances Meen them and the ther remedi hich, have spolien o the contra , in differ greatly both in the mode in hic therare comme eo,

226쪽

calle publies causerus a genera rule any citiete may Comeso arma prosecutor in them Some are capital other not

2 By capita prosecutions e mea inose in hic the accused may be punishe wit the κtremes severitnos the lam inith interdiction rom,ater andire, Wit deportation, o wit hard labour in the mines those hic entali ni insam anda pecunia senalties are public butio capital The sollowingstatutes relate in public prosecutions. Firet there is the lex Julia on reason, hic includes an design against the Emperor o State the penalty unde it is eath, and even

brande&with insamn Thecle Iulia, passe so the repressionos adultery, punishes it deat not ni defiters of the

marriage-hed, but also those ho indulge in crimina inter- coum Wit thos os their Wn sex, an inflicta penalties onany who without using violence seduce virgin or idow of respectable character. Is the seduceris os reputabie condition the punishment is confiscation finals his sortune is 5 a mea person, floggin an relegation. The te Cornelia onassassination pumve thos persons, ho commit his crime,

With the word os vengeance, an also ali Who Carry eamnssor the purpos os homicide By a ,eapon, ascis remarhed maius in his commentar on the statute of the Nelve Tabies, is ordinarily meant some missile stat rom a bow, butit also signifies anything thrown with the hand so that stones an pieces os wood or iron re included in the term 'Tetam. in laci, or ,eapon, is derive seo the Gree τηλου, an someans anything thrown to a distance A simila connectionos meaning may be Mun in the Gree wor βέλος, hichcorrespondito our ulum, and which is derived stom βάλλε αι, to thro learn sto Xenophon, Who Writes, they carried wit them βέλη namely SPears, bo S an arro S, lingS, and large numbersis stones Sicarius, o assassin, is deriv/d stomsica, a long fleel knise This statut also inflicis punishment os

deat ommisoners, who kill men by their talesul aris os mison 6 and magic, o who publiclyraeli deadly drum. A novel penalty has been clevise sor a most odious crime by another statute. calle the lex Pompeia o parricide, hic provides that any

227쪽

TITTE VITT. O0 Person Who by secret machination or ope actishalliasten thedeath os his parent, or hild, o other relation hos murderamounts in a rio parricide, o Who hallae an instigator oraccomplice of such crime, although a stranger, shali suffer themnalty os parricide This is no executio by the swor oris fire, o any ordinar sorm os punishment, but the criminalis sese mi a sack with a dog, a coch, a viPer an an Pe, an in his disma prison is thrown into the eam a HVer, accordin to the nature os in locality in orde that even

sore deat he may begi to e deprive os the enj mento the elementa, the i hein dente him hile alive, and interment in the eart when de . Those ho kill persons relate to them is hinshimor amni , hut whose murcle is notparricide, ill suffer the penalties of the e Cornelia nassassination. The te Cornelia on orgery, themis called the statute os ills inflicis penalties o at who hall,rite, seat, or read adorged illi other document, or shali substitute the fame so the ea original, or ho hali nowingi and seloniousty mahe engrave, o us a salse seat. Is the criminalbe a flave, the penalty fixed by the statute is death, as in the statute relatindito assassin andioisoners cis a re man, deportation. The lex Iulia, relatinito publicor private violence, 8 deat wit thos persons ho se orce arme or unarmed. For the former, the penalty fiκed by the statute is deportation; so the alter, confiscation os one hir of the offender's properim Ravishment os virgins Wiclows, person Prosessedi religion orithera, an ali assistanc in iis perpetration is punished capitally unde the provision os our constitution, is reserencedo,hic suli information on this subject is obtainable. The lex Iulia on em gglement punishes ali Who stea monensor ther properi belongin to the state, o devote to the maintenanc os religion. Judges h cluring thei term os ossice emhegetle public money re punishable it death, as also are thei aider an ahettors, an an who receive suchmoneyano incit to have been stolen Other persons hoviolate the provision of this statute are ii terio deportation. A public prosecutio manalso be brouot unde the lex Fabia io relatinnio manstealing, sor hic a capita penalty is some- times inflicteffunder imperial constitutions somelimes ili ter P

228쪽

a Io BOOx IV, TINE VITTII punishment Other statutes hic rave riserio such prosecutions are the te Iulia o bribery, and threeithera, hic are similari entilled, and whic relate to judicia extortion to illega combinations sor aising the rice of com an tonegligence in the charmis public moneys These deal With speciat varieties os crime, and the penalties hic the inflicto thos who infringe them in no case amount to deare, butare ies severe in Character.

12 e have made these remarhsin public prosecutions onlydoen le yo to have the merest acquaintance With them, and asa hin os euiderio a suller study of the subjeci, which, Wit theassistance osmeaven, o may ake by reserence to the large volume of the Digest o Pandecta.

229쪽

INDEX.

lv. a. a.

toryaeir on intestacri iii 4. 4.amuisitionis single thingsi natural

tions in hic the whole debi is

Pena actions ho sar the wil lieagainst the offendes heir, ib. I may be brought y heir of person

.illiso lie against the heir, G.: defendant entilled to absolution is hesatisfies in plaintim fore judinent,

230쪽

INDEX TO THE TEXT.

-- exercitoria IV. 7. a.

iv. 5. I.

- tributoria, iV. 7. x G. s. -- sor vexatious litigation iv. 6. I. a inutionis legacies, ii. I. Priad ulloationis propertfima partition

I. a.

gono in acquisitionis omnerini and

Possession se nomisitiori. - in contracte gratuito . iii. 6. Ixi

mines in amnes auctorii as a te, G. Ior no ne need accepi a commis