BOOK III. Pt. I. Ch. II. of the pat. fam.; the latter are in this case not previously subtracted. Introduxit et aliam actionem praetor, quae tributoria vocatur. Namque si servus in peculiari merce sciente domino negotietur et quid cum eo eius rei causa contractum erit, ita praetor ius dicit, ut quidquid in mercibus erit quodque inde receptum erit, id inter dominum, si quid ei debebitur, et ceteros creditores pro rata portione distribuatur; et quia ipsi domino distributionem permittit, si quis ex creditoribus queratur, quasi minus ei tributum sit quam oportuerit, hanc ei actionem accommodat.-Is quoque, cui tributoria actio competit, aeque de peculio et in rem verso agere potest; sed sane huic modo tributoria expedit agere, modo de peculio et in rem verso. Tributoria ideo expedit agere, quia in ea domini condicio praecipua non est, i.e. quod domino debetur non deducitur, sed eiusdem iuris est dominus, cuius et ceteri creditores; . . . rursus de peculio ideo expedit agere, quod in hac actione totius peculii ratio habetur, at in tributoria eius tantum, quod negotiatur, et potest quisque tertia forte parte peculii aut quarta vel etiam minima negotiari, maiorem autem partem in praediis aut mancipiis aut foenebri pecunia habere.-§§ 3, 5, I. h. t.' 1 The Praetor has introduced yet another action, which is called the 'tributorian.' For if a slave with the privity of his master trade with his own wares, and a contract has been made with him in relation to such property, the Praetor decides that the whole stock of such wares and what has been derived from them shall be divided between the master, if aught shall be owing to him, and the rest of the creditors in the proportion of their shares; and inasmuch as he allows the master himself to make the distribution, if any creditor complain that less has been assigned to him than ought to be, the Praetor provides this action for him.-And he to whom the actio tributoria is available can in like manner sue concerning his separate property and what has turned to the profit of the master; but it is certainly of advantage for him to sue sometimes by the tributorian action, (5) As exercitoria' and 'institoria' actio is given the action upon contracts which any one has concluded with a magister navis (ship's representative, captain) or institor (factor, i.e., appointed for a certain business transaction), within the limits of their authority; and the same whether he be a person under dependence or free; and this is given against the exercitor (shipowner) or dominus (principal) by whom they have been appointed. Gai. iv. § 71: Tunc autem exercitoria locum sometimes by that de peculio et in rem verso. To such the tributoria is advantageous, because the master in this has no preferential position, that is, there is no deduction of what is owing to him, but he and the other creditors stand on the same footing. Again, it is advantageous to sue by the action concerning separate property, because in this action account is taken of the whole separate property; but in the tributorian only of what is traded with, and any one can trade with, it may be, the third part of his separate property, or the fourth part, or even a very small part, whilst he has the greater part in lands, or slaves, or in money at interest. Now the exercitorian action obtains when the father or master has appointed a son or slave as captain of a vessel, and a transaction has been entered into with him relating to BOOK III. Pt. I. Ch. 11. BOOK III. Pt. I. Ch. II. a Cf. Holmes, Ulp. Magistrum navis accipere debemus, cui totius navis cura mandata est.-D. 14, I, I, I.' Est autem nobis electio, utrum exercitorem an magistrum convenire velimus (Ibid. § 17)-hoc enim edicto non transfertur actio, sed adiicitur.1. 5, § 1 eod.2 § 113. LIABILITY FROM DELICTS OF THIRD PARTIES. (NOXAL ACTIONS.)" As arising from the delicts of slaves and filii-familias, the injured party can employ the given action, as noxalis actio, against the master as paterfam. (or even possessor of the slave), who-in case he at all undertake the defence has to pay the litis aestimatio (compensation for the damage or penal sum), but is freed from responsibility by 'noxae deditio' of the offender to such party. It is possible that originally the lust. iv, 8, 7; pat. fam. or master was principally and directly under the b Gai. i. 140; iv. 75, 79: Coll. ii. 3. Cf. Holl. p. 116, note. obligation of noxae deditio; from which he could free himself by means of payment of the litis aestimatio. The condemnation, accordingly, admitted of an alternative. But whether the Intentio did actually, as is supposed, contemplate the pat. fam. or master (which is the rather accrue. ... the business he was appointed to manage; . . . and further, although a person has appointed some stranger as captain of the vessel, whether slave or free, still the praetorian action is given against him. And the action is called 'exercitorian,' because he is called 'exercitor' to whom the daily earnings of a ship The institorian formula obtains, however, when a person has appointed his son, or slave, or any stranger he pleased, whether slave or free, to the management of a ship or business of any kind, and a contract has been made with him relating to such matter as he has been appointed to manage. The action is called 'institorian,' because he that is appointed manager of a shop is called an 'institor.' 1 By the captain of a ship we must understand the person to whom the charge of the whole ship has been deputed. 2 Now we have our choice whether we will sue the owner or the captain-since, by this Edict, there is no transfer, but addition, of an action. 14a to be acknowledged in the case of slaves) remains questionable. On the other hand, Dig. 44, 7, demands consideration, as well as the effect of consumption of Litis Contestatio and Judgment. Iust. iv. 8, § 1: Noxa est corpus quod nocuit, i.e. servus, noxia ipsum maleficium.-Serv. in Verg. Aen. 1, 41: Noxia culpa est, i.e. peccatum, noxa autem poena.1 Fest. h. v.: -Noxia (damnum significat); Gai. (Noxalium) actionum vis et potestas Id. Non solum adversus bona fide possessorem, sed etiam adversus eos, qui mala fide possident, noxalis actio datur.-1. 13 eod.* Call. Is qui in aliena potestate est si noxam commisisse dicatur, si non defendatur, ducitur; et si praesens est dominus, tradere eum et de dolo malo promittere debet (1. 32 eod.). Gai. : —sed huic necesse est ius suum ad actorem transferre, perinde ac si damnatus esset (1. 29 eod.).— Pomp.: Noxali iudicio invitus nemo cogitur alium defendere, sed carere debet eo, quem non defendit, Noxa is the body which has caused the injury, that is, the slave; noxia is the tort itself.-Noxia is the fault, that is, offence, whilst noxa is the punishment. 2 Noxia (denotes injury); . . . noxa, an offence or punishment for an offence; . . . when the statute enjoins noxae dedere, it enjoins delivery up for an offence. 3 The force and power of noxal actions is this, that if we have been condemned, we are allowed, by surrender of the actual person of the wrongdoer, to avoid an assessment of the damages. A noxal action is given not only against the possessor in good faith, but against those who possess in bad faith. BOOK III. Pt. 1. Ch. II. a Supra, p. 169. b Cf. D. 9, 4, 22, 4. si servus est: quod si liber est qui in potestate sit, ipsi sui defensio danda est.-1. 33, D. eod.' ... Iust. iv. 17, § 1: noxali iudicio . . . si condemnandus videbitur dominus, ita debeat condemnare: Publium Maevium Lucio Titio decem aureis condemno aut noxam dedere.'" Ulp. Decem aut noxae dedere ' condemnatus iudicati in decem tenetur: facultatem enim noxae dedendae ex lege accipit. . . . Iudicium solius noxae deditionis nullum est, sed pecuniariam condemnationem sequitur; et ideo iudicati decem agitur, his enim solis condemnatur; noxae deditio in solutione est, quae e lege tribuitur.-D. 42, I, 6, 1.3 Next, Noxa caput sequitur.' Paul. Actionum ex delicto venientium obligationes cum capite ambulant.-D. 4, 5, 7, 1.4 Gai. iv. §§ 76-78: Constitutae sunt autem noxales actiones aut legibus aut edicto praetoris: 1 If he who is under the power of another be alleged to have committed an injury, and is not defended, he is led away [by the plaintiff]; and if the master be present, he must deliver him up and undertake to answer for his bad intention.-But the latter has to transfer his right to the plaintiff, just as if he had been condemned.-No one can be compelled against his will to defend another in a noxal action, but if the one whom he does not defend is a slave, the master must renounce him; but if he is a freeman under power, he must be allowed to defend himself. 2 If in a noxal action he shall consider the master ought to be condemned, he must give judgment thus: 'I condemn P. M. (to pay) ten aurei to L. T., or to surrender the wrongdoer.' 3 He that has been condemned to pay 'ten [aurei] or to surrender for punishment' is liable for ten, &c.; for by virtue of the statute he is empowered to surrender for punishment . . . There is no judgment of mere surrender for punishment. but it follows the pecuniary condemnation; and therefore the action is directed to a judgment for ten, &c., for in such alone is he condemned. The surrender for punishment lies in the pay. ment, which is given by the statute. 4 Obligations appertaining to actions arising from delict shift with the person. |