α which arising out of disallowed, illegal acts or forbearance, do not fall under delicta proper. The most important cases are the following. 4 (1) The 'in factum actio' against the iudex qui litem suam fecerit, i.e., the judge that by remissness in performance of his duty, or by neglect, has prejudiced either party. Gai. Si iudex litem suam fecerit, non proprie ex maleficio obligatus videtur; sed quia neque ex contractu obligatus est et utique peccasse aliquid intelligitur, licet per imprudentiam, ideo videtur quasi ex maleficio teneri in factum actione, et in quantum de ea re aequum religioni iudicantis visum fuerit, poenam sustinebit.-D. 50, 13, 6.1 (2) The actio de effusis et deiectis against the occupier of the place from which something is thrown or poured out on a thoroughfare, in case this has caused damage. Item is, ex cuius coenaculo vel proprio ipsius vel conducto vel in quo gratis habitabat deiectum effusumve aliquid est, ita ut alicui noceretur, quasi ex maleficio obligatus intelligitur; ideo autem non proprie ex maleficio obligatus intelligitur, quia plerumque ob alterius culpam tenetur, aut servi aut liberi. . . . De eo vero, quod deiectum effusumve est, dupli quanti damnum datum sit, constituta est actio.-I. h. t. (de obl. q. qua. ex del. 4, 5). If a iudex has given a partial decision, he is not strictly to be regarded as liable upon a tort; but since he is not liable either by any contract, and yet is certainly regarded as having erred, although through inadvertence, he is therefore considered liable, upon the ground of a quasi delict, to an action on the case, and must bear such penalty as shall seem fair to the conscience of the person who adjudicates upon the case. 2 Likewise he from whose chamber (whether his own or hired, or one in which he was dwelling rent-free) anything has been thrown or poured out in such wise as to injure some per Ulp. Parvi autem interesse debet, utrum publicus locus sit, an vero privatus, dummodo per eum vulgo iter fiat.-1. 1, § 2, D. h. t. (de his qui eff. 9, 3).1 Sed cum homo liber periit, damni aestimatio non fit in duplum (quia in homine libero nulla corporis aestimatio fieri potest), sed quinquaginta aureorum condemnatio fit.-Ibid. § 5.2 Gai. Cum liberi hominis corpus ex eo, quod deiectum effusumve quid erit, laesum fuerit, iudex computat mercedes medicis praestitas ceteraque impendia, quae in curatione facta sunt, praeterea operarum, quibus caruit aut cariturus est ob id, quod inutilis factus est.-1. 7 eod.3 Ulp. Haec actio, quae competit de effusis et deiectis, perpetua est et heredi competit, in heredem vero non datur. Quae autem de eo competit, quod liber periisse dicetur, intra annum dumtaxat competit, neque in heredem datur neque heredi: nam est poenalis et popularis dummodo sciamus ex pluribus desiderantibus hanc actionem ei potissimum dari debere, cuius son, is considered to be liable for a quasi delict; for he is not strictly considered liable for delict, because in general he is responsible for the fault of some one else, either slave or free. ... But in respect of that which has fallen or been poured out, an action has been provided for double the amount of the damage done. But it ought to matter little whether it is a public or private place, so long as there is a public thoroughfare over it. 2 But when a freeman has perished no estimate is made of damage for double the amount (because there can be no valuation of the body in respect of a freeman), but condemnation ensues for fifty aurei. When the body of a freeman shall be injured by anything thrown or poured out, the iudex estimates the doctors' fees that have been paid and other expenses which have been incurred in respect of the cure, and further, the work which such person has been or will be deprived of by reason of his having been incapacitated. BOOK III. Pt. I. Ch. 11. BOOK III. Pt. 1. Ch. II. § 24, ad fin interest vel qui adfinitate cognationeve defunctum (3) The actio popularis de posito et suspenso against him that has set or hung up anything in a public place in a manner to endanger, or leaves it there." Cui similis est is qui ex parte, qua vulgo iter fieri solet, id positum aut suspensum habet, quod potest, si ceciderit, alicui nocere: quo casu poena decem aureorum constituta est.—§ 1, I. h. t.2 2 Ulp. Positum habere' etiam is recte videtur, qui ipse quidem non posuit, verum ab alio positum patitur.-D. 9, 3, 5, 10.3 (4) It is upon an obligatio quasi ex delicto that the liability rests of nautae, caupones, stabularii for thefts of, and injuries to, effects of travellers received by them, who have against such persons actiones in factum, namely: (a) a penal actio in duplum. Item exercitor navis aut cauponae aut stabuli de damno aut furto, quod in nave aut caupona aut stabulo factum sit, quasi ex maleficio teneri 1 This action, which lies for things thrown out and poured out, is perpetual, and is available to an heir, but is not given against an heir. But that which lies in respect of a freeman being alleged to have perished is available only within a year, and is given neither against an heir nor to an heir; for it is a penal and popular action. We have only to notice that, of several persons desiring this action, it ought especially to be given to him that is interested therein, or is connected with the deceased person by affinity or relationship. 2 In like position is a person who has placed or hung up in a part where the public are wont to pass that which, if it fall, may do injury to some one: in this case a penalty has been appointed of ten aurei. 3 A person also is rightly considered to have placed a thing who did not place it himself indeed, but allowed it to be placed by another. Pt. 1. Ch. II. videtur, si modo ipsius nullum est maleficium, BOOK III. a (3) An actio de recepto," purely 'rei persequendae cf. § 107. causa.' Id.: Ait praetor: NAVTAE CAVPONES STABVLARII Id. Ex hoc edicto in factum actio proficiscitur 1 Likewise the master of a ship, or an innkeeper, or a stableman, is considered liable for a quasi-delict in respect of loss or theft committed in the ship, or inn, or stable, provided there is no wrongful act on his own part, but on the part of one of those employed by him in working the ship, or in the inn or stable. For since this action has not been brought against him as grounded in contract, and yet he is to some extent liable for negligence in employing worthless persons, therefore he is considered liable for a quasi-delict. Now in these cases an action lies on the case, and it is given to the heir, but it does not lie against the heir. The Praetor says: 'Unless sea-captains, innkeepers, stablemen restore whatever they have received of any man's property for safe keeping, I will give an action against them.' Y Y BOOK III, Pt. 1. Ch. 11, • Holland, P. 183, note. Cf. § 113. continet, ut Pomponius ait, et ideo et in heredem et perpetuo datur.-1. 3, §§ 1, 4 eod.' $137, OBLIGATIONS FROM MERE CIRCUMSTANCES." Already the mere fact that some one is owner or possessor of a thing, or that he has been enriched at the expense of a third party, by reason of another's illegal act, may in certain cases engender an obligation between him and another. (1) For the injury which a domestic animal has committed by no one's fault, its owner for the time being is responsible by the noxal actio de pauperie.' ¿ Ulp. : Si quadrupes pauperiem fecisse dicetur,' actio ex lege XII tabularum descendit; quae lex voluit aut dari id quod nocuit, i.e. animal quod noxiam commisit, aut aestimationem noxiae offerri. § Pauperies est damnum sine iniuria facientis datum.-§ Itaque (ut Servius scribit) tunc haec actio locum habet, cum commota feritate nocuit quadrupes, puta si equus calcitrosus calce percusserit, aut bos cornu petere solitus petierit. § Et generaliter haec actio locum habet, quotiens contra naturam fera mota pauperiem dedit: ideoque si equus dolore concitatus calce petierit, cessare istam actionem, sed eum qui equum percusserit aut vulneraverit, in factum magis quam lege Aquilia teneri, utique ideo, quia non ipse suo corpore damnum dedit. § In bestiis autem 1 From this edict proceeds an action on the case. . . Pomp. expresses his surprise why a magisterial action has been introduced, where there are civil actions existing, unless perhaps, he says, because culpa is made good alone in a hiring contract, dolus in a deposit, whilst by this edict the receiver is in every way liable, even if the article perish or damage has been inflicted by no fault of his, unless anything arise by fortuitous loss.-Now this (action) goes to the recovery of the thing, as Pomp. says, and so is given not only against the heir, but perpetually. |