hibendum actionem ei, cuius interest exhiberi; Id. Glans ex arbore tua in fundum meum Paul. nec (tigni iuncti) nomine ad exhibendum agi nisi adversus eum, qui sciens alienum iunxit aedibus.-D. 6, 1, 23, 6.3 (3) To such obligations in some measure attach the actio metus and actio doli for liability extending to the person of the wrong-doer. BOOK III. Pt. I. Ch. II. (a) The arbitraria actio quod metus causa — a D. 4, 6, 31. 'formula Octaviana '-lies as actio in rem scripta D. 4, 2, 1. 1 But it is to be noticed that the action for production is open to him who had an interest in the production; the iudex must therefore summarily ascertain whether he has an interest in it; not whether the thing belongs to him.-Nerat. shrewdly says the iudex in a suit for production directs his inquiry to this, whether (the plaintiff) has a lawful and demonstrable ground of action, on account of which he desires production of the thing to him. 2 Fruit falls from your tree into my field; I turn my cattle in and make them eat it. . . . Pomp. writes, that an action lies for production, if I turned the cattle in with wrongful intention; for even if the fruit existed, and you will not suffer me to pick it, you will be liable for production, in the same way as if a man should not suffer me to remove my timber that had been washed into his field. 3 and proceedings cannot be taken in respect of a plank built in, save against him who has built it into his house while aware of its belonging to another man. against every third person, who by dint of coercion has control over a part of the property of the person coerced, for the restitution thereof. Ulp. In hac actione non quaeritur, utrum is qui convenitur, an alius metum fecit; sufficit enim hoc docere, metum sibi illatum vel vim et ex hac re eum qui convenitur, etsi crimine caret, lucrum tamen sensisse.-Quidam putant, bona fide emptorem ab eo qui vim intulit comparantem non teneri, nec eum qui dono accepit vel cui res legata est; sed rectissime Viviano videtur etiam hos teneri, ne metus quem passus sum mihi captiosus sit. Pedius quoque scribit arbitrium iudicis in restituenda re tale esse, ut eum quidem qui vim admisit iubeat restituere, etiamsi ad alium res pervenit, eum autem ad quem pervenit, etiamsi alius metum fecit.-D. 4, 2, 14, §§ 3, 5.1 Paul. In heredem autem et ceteros in id, quod pervenit ad eos, datur non immerito.-1. 16, § 2 eod., 2.2 In the event of non-restitution, if the action be brought intra annum utilem, judgment can be had for the quadruplum, otherwise for the simple amount." Si quis non restituat, in quadruplum in eum 1 In this action it is not asked whether the defendant or another has caused the fear; for it is enough if (the plaintiff) prove that fear was awakened in him or violence put forth, and that the defendant, although free from crime, has derived profit from this circumstance.-Some are of opinion that a bona fide purchaser buying of one that has employed violence, is not liable, nor he that has received a donation or a legacy. But Viv. very justly supposes that they too are liable, in order that the fear which I have experienced may not be prejudicial to me. Ped. also writes that the decision of a iudex in respect of a thing that has to be restored is such that, as a matter of fact, he enjoins the person who practised the violence to make restitution, even if the thing has come to the hands of another, but also him to whose hands it has come, even if a third person caused fear. 2 Now it is not without good ground allowed against an heir and others for that which has come to their hands. iudicium pollicetur; quadruplabitur autem omne 6 (3) The arbitraria actio doli' (involving infamy, but which is subsidiary) for fraudulent infliction of injury-not falling under another delict-lies against the author himself for the full damages (to be confirmed by ius iurandum in litem) and against his heir, and the person represented by him in the particular matter, for the enrichment." BOOK III. Pt. 1. Ch. II. a D. 4, 3, 1, 2; 2, 4, 1, 7, I. Cic. de nat. deor. iii. 30, 74: Everriculum 44.42. §§ 1, Verba edicti: QVAE DOLO MALO FACTA ESSE Ulp. Praetor ita demum hanc actionem polli- Paul. Si servum, quem tu mihi promiseras, 1 If a man do not make restitution, he promises judgment against him for the fourfold; but in respect of the reckoning of the fourfold, everything will come into account of which restitution ought to be made. 2 As a drag-net of all dishonesties, C. Aquil. brought forward the action of fraud; this fraud he considers to be contemplated when one thing is held out, another done. 3 The words of the Edict: In respect of that which shall be alleged to have been done by fraud, if there be no other action for such matters, and the ground shall appear to me to be law. ful, I will allow an action.' 4 The Praetor only promises this action if there be no other, because an action involving infamy ought not lightly to be decreed by the Praetor.-Pomp. relates that Labeo was of opinion that, even if a man could acquire restitution to the former state, this action ought not to be open to him. BOOK III. I't. I. Ch. II. a Sc. pupillus. Cf. § 103. alius occiderit, de dolo malo actionem in eum dandum plerique recte putant, quia tu a me liberatus sis.-1. 18, § 5 eod.' Gai. In heredem eatenus daturum se eam actionem pollicetur, quatenus ad eum pervenerit, i.e. quatenus ex ea re locupletior ad eum hereditas pervenerit.-1. 26 eod." Ulp. Sed et ex dolo tutoris si factus est locupletior," puto in eum dandam actionem.Item si quid ex dolo procuratoris ad dominum pervenit, datur in dominum de dolo actio, in quantum ad eum pervenit.-1. 15 pr., § 2 eod.3 EXTINCTION AND TRANSFER OF OBLIGATIONS. Every obligation carries with it the purpose of being again extinguished; dissolution of the obligation is the ultimate object and necessary result of the full exercise of that right to which the creditor can lay claim as arising from it. The dissolution (solutio in the wider sense) can first of all ensue by satisfaction being rendered to the claim of the creditor (satisfactio), whether by performance, i.e., discharge of the debtor's liability (solutio in the narrower sense), or by agreement of the parties; or lastly by some other legal 1 If a slave whom you had promised to me has been killed by another, most are right in thinking that an action for fraud is to be allowed against him, because you have been exonerated by me. 2 Against the heir (the proconsul) promises to allow such action to the extent of his benefit, that is, so far as by reason of such circumstance a richer inheritance has devolved upon him. 3 But if he has been enriched also by dolus of the guardian, I am of opinion that an action should be allowed against him.The like, if benefit has accrued to a principal from the fraud of his agent, an action de dolo is allowed against the principal for the amount of his benefit. a BOOK III. Pt. I. Ch. II. incident which materially involves satisfaction of the creditor." But the obligation can also be destroyed without satisfactio, by an outward event, so that the § 140. debtor is released without reference to the will, and without material satisfaction, of the creditor. Paul. Solutionis verbum pertinet ad omnem liberationem quoquo modo factam, magisque ad substantiam obligationis refertur, quam ad nummorum solutionem.-1. 54, D. de solut. 46, 3.1 Ulp. Solutionis verbo satisfactionem quoque omnem accipiendam placet.-D. 50, 16, 176.3 Marcian. Quodsi acceptum latum sit solutionis quidem verbum non proficiet, sed satisfactionis sufficit.-1. 49, D. de solut.3 Whilst by the performance of that which is owing every obligation is extinguished conformably to its nature and purpose, in (direct) dissolution of an obligation by agreement between the parties strict conformity between the act of release and act that created the obligation is always requisite, except as to novation. Pompon. Prout quidque contractum est ita et solvi debet ut cum re contraxerimus, re solvi debet; . . . et cum verbis aliquid contraximus, vel re vel verbis obligatio solvi debet; . . . aeque cum emptio vel venditio vel locatio contracta est, quoniam consensu nudo contrahi potest, etiam dissensu contrario dissolvi potest.— 1. 80 eod.' 1 The word solutio (payment) extends to every release in whatever way made, and relates more to the contents of the obligation than to the payment of money. 2 It is held that by the word 'payment' we must understand also every satisfaction. 3 But if a discharge has been given . . . the word payment will not avail, but satisfaction is enough. 4 Everything must also be discharged according as it was contracted; so that, when we have made a contract with a § 143. |