The Same, On the Edict, Book XXIII. If a long time must elapse until the judge who has been appointed can hear the case, the Prætor orders him to be changed; and this happens, for example, where some business occupies the judge and prevents him from giving his attention to the trial; for instance, where he is attacked by disease, or is compelled to go on a journey, or where his private property is in danger. 1Where the son of a family wishes to institute proceedings for reparation for an injury on account of which his father has a right of action, we only permit him to bring suit where there is no one who can do so in behalf of his father; for it is the opinion of Julianus that if the son of a family is absent on an embassy, or for the purpose of pursuing his studies, and suffers theft, or unlawful damage to his property, he is entitled to bring a prætorian action; since, if he waited for his father to bring suit, the malicious act would go unpunished, because his father might not come, or the party who committed the wrong might absent himself before he arrived. Wherefore, I have always held the opinion that where the cause of action did not arise from a malicious act, but from a contract, the son ought to bring a prætorian action; as, for instance, where he wishes to recover a deposit, or sue on a mandate, or for money which he had loaned; and, in that case, if his father was in the province, and he happened to be at Rome, for the purpose of prosecuting his studies or for some other good reason, and we did not grant him the action, he would, in consequence, be defrauded with impunity, and live at Rome in want, because he did not obtain the property which his father intended for his expenses. And suppose that the son of a family in question is a Senator, and has a father in the province; would not the equity of this be increased by his rank?

Ulpianus, On the Edict, Book XXIII. The Prætor says with reference to those who throw down or pour out anything: Where anything is thrown down or poured out from anywhere upon a place where persons are in the habit of passing or standing, I will grant an action against the party who lives there for twofold the amount of damage occasioned or done. If it is alleged that a freeman has been killed by a blow from anything that fell, I will grant an action for fifty aurei. If the party is living, and it is said that he is injured, I will grant an action for an amount which would seem to be just to the judge that the party against whom suit is brought should be directed to pay. If it is alleged that a slave committed the act without the knowledge of his master, I will add to the petition in the case the words, “Or surrender the slave by way of reparation”. 1No one will deny that this Edict of the Prætor is of the greatest advantage, as it is for the public welfare that persons should come and go over the roads without fear or danger. 2It makes, however, very little difference whether the place is public or private, so long as persons ordinarily pass there; because the Prætor had in view persons who were going their way, and particular attention was not paid to highways; for those places through which people ordinarily pass should have the same security. If, however, there was a time when persons did not ordinarily pass that way, and anything is then thrown down or poured out while the place was enclosed, but only after that it began to be used for travel; the party will not be liable under this Edict. 3Where something falls down while being hung up, the better opinion is that it should be held to have been thrown down; hence, where something is poured out of a vessel which is suspended, even without the agency of anyone, it must be said that the Edict is applicable. 4This action in factum is granted against the party who lodged in the house at the time when something was thrown down or poured out, and not against the owner of the house, because the blame attaches to the former. Mention of negligence or that the defendant denies the fact is not made, in order to authorize an action for double damages, although both of these matters are stated to afford good ground for an action for wrongful damage. 5Where a freeman is killed, the assessment of damages is not made for double the amount, because in the case of a freeman no valuation of his person is possible, but the judgment will be for the sum of fifty aurei. 6There words “If he is living and it is said that he is injured,” have no reference to the damage which has been committed against the property of a freeman; as, for instance, if his clothing or anything else should be torn or spoiled, but only to those injuries inflicted upon his body. 7Where the son of a family has rented an upper chamber and something is thrown down or poured out from it, an action De peculio is not granted against his father, because no claim arising from contract exists, and therefore the action must be brought against the son himself. 8Where a slave occupies the house, will a noxal action be granted, since one does not lie on the ground of business transacted: or can one De peculio be brought because no claim can be made on account of an offence of the slave? We cannot properly say that the damage was committed by the slave, since the latter committed no injury. I think, however, that the slave should not be unpunished, but that he should be corrected under the extraordinary authority of the judge. 9We say that a party occupies a house whether he resides in his own or one which is leased to him, or which he obtains gratuitously. It is evident that a guest will not be liable, because he does not live there, but is only entertained, but the party is liable who entertains him; and there is as much difference between him who lives in a house and a guest, as there is between one who has a domicile and the traveller who has none. 10Where several persons occupy the same room and something is thrown down from it, this action will be granted against any one of them;

Ulpianus, On the Edict, Book XXIII. And suit can be brought for the entire amount, but where it is brought against one of the parties the others will be discharged:

Ulpianus, On the Edict, Book XXIII. Where several persons occupy an apartment divided up among themselves, an action will be granted against him alone who occupied that part from which the pouring out was done. 1Where anyone gives gratuitous lodgings to his freedman and his clients or to those of his wife, Trebatius says that he is liable on their account; and this is correct. The rule is the same where a man distributes small lodgings among his friends, for if anyone rents lodgings and he himself occupies the greater portion of the same, he alone will be liable; but if he rents lodgings and retains for himself only a small part, leasing the remainder to several persons, they will all be liable as occupying the lodging from which the throwing down or pouring out took place. 2Sometimes, however, when no disadvantage results to the plaintiff, the Prætor, influenced by equitable motives, ought rather to grant an action against the party from whose bedroom or entry the object was thrown down, even though several persons occupy the same lodging; but if anything should be thrown down from the middle of the apartment, the better opinion is that all are liable. 3Where the keeper of a warehouse throws down or pours out anything, or some one who has leased a storeroom, or has rented the place merely for the performance of some labor or for purposes of giving instruction does so, an action in factum will lie; even if one of the workmen or scholars threw it down or poured it out. 4Where, however, a party has judgment rendered against him under the Lex Aquilia (because his guest, or anyone else, threw something down from the apartment) it is reasonable, as Labeo says that an action in factum should be granted against the party who did the throwing, and this is true. It is evident, if he had leased the room to the party who threw it down, that he will also be entitled to an action on the ground of contract. 5This action which can be brought for things which are poured out and thrown down is a perpetual one, and is available by an heir but is not granted against an heir; but the one which will lie where a freeman is said to have been killed, can only be brought within a year, and is not granted against an heir nor in favor of an heir or similar persons, for it is a penal and a popular action, and we must always remember that where several persons desire to bring a suit of this kind it should preferably be granted to someone who has an interest in it, or was allied to the deceased either by marriage or by blood. Where, however, injury was inflicted upon a freeman he will have a perpetual right of action; but if anyone else desires to institute proceedings, the right will not extend beyond a year; nor are heirs entitled to it as an hereditary privilege; since, where any bodily injury is inflicted upon the freeman, no claim can be transmitted by hereditary right to his successors, as no pecuniary loss is involved, for the action is based on justice and equity. 6The Prætor says, “No one shall have anything deposited upon a projecting roof above a place which is ordinarily used as a passage-way or where people are accustomed to stand; if it can injure anyone by its fall. I will grant an action in factum for ten solidi against any person who violates this law; and if a slave is said to have done this without the knowledge of his master, I will order this amount to be paid, or the said slave to be surrendered by way of reparation.” 7This provision is a part of the Edict previously referred to; for it was only consistent that the Prætor should provide for this case as well, so that if anything should be placed on any part of the house which would be dangerous, it might not cause any injury. 8The Prætor says, “No one,” “on a projecting roof.” These words “No one” have reference to all persons, whether they occupy the house as lodgers or as owners and whether they live there or not, so long as they have anything exposed in these places. 9“Who have anything deposited above a spot which is ordinarily used as a passage-way or where people are accustomed to stand.” We must understand the term “deposited” to be applicable to a lodging or apartment, or to a ware-house or any other building. 10A person may properly be held to have something “deposited,” even if he did not place it himself but allowed this to be done by someone else, and therefore if a slave should place it, and the owner allow it to remain in that position, he will be held liable not to a noxal action, but on his own account. 11The Prætor says, “If it can injure anyone by its fall.” It is manifest from these words that the Prætor only provides against injury being done, not by everything which may be placed in such a position, but by whatever is placed so that it may possibly cause injury, for we do not wait until the injury is done, but the Edict is applicable if injury can result at all; and the party who kept the object in its position is punished whether it caused any damage by being placed there or not. 12Where the object that was placed falls down and causes damage, an action will lie against the party who put it there, but not against the occupant of the house, as this action is not sufficient, because the party who placed the object cannot certainly be held to have kept it in its position, unless he was either the owner or a resident of the house. For when an artist had a shield or a picture on exhibition in a booth, and it fell down and injured a passer-by, Servius was of the opinion that an action corresponding to this one should be granted; for he said that the latter evidently could not be brought, since the picture had neither been placed on the eaves nor on the projecting roof. He stated that the same rule should be observed where a jar which was suspended in a net had fallen down and caused damage; for the reason that both a legal and an equitable action was wanting. 13This action is open to everyone, and lies in favor of an heir and his successors, but it does not lie against heirs, because it is a penal one.

Ulpianus, On the Edict, Book XXIII. Whenever an owner is sued on the ground of damage committed, and does not wish to defend the action, he is in such a condition that he must surrender by way of reparation the slave on whose account he refuses to defend the suit, or, if he does not do so, he is absolutely obliged to make a defence; but judgment will not be rendered against him unless he has the slave in his power, or has managed to relinquish possession of him by fraud. 1Where proceedings are instituted by a noxal action on account of slaves, it is established that they can be defended even though they are absent, but this only shall be done where the said slaves belong to the defendant, for if they belong to another they must be present; and this is also the case where any doubt exists whether they are the property of the defendant or of another party. I think that this ought to be understood to be the rule if it is proved that they are serving the defendant merely as bona fide slaves, even if they are absent. 2The Prætor says, “If he in whose power the slave is said to be denies that he has him in his power, I shall either order him to swear that the slave is not in his power, or that he has not fraudulently maneged that he should not be, or I will grant an action without surrender by way of reparation, whichever the plaintiff desires.” 3We should understand the words “In his power” to mean that the defendant has the opportunity and the power to produce the slave; but if the latter should be a fugitive, or out of the country, he will not be held to be in his power. 4If the defendant refuses to make oath, his position is the same as that of a party who will neither defend an absent slave or produce him in court; and persons of this kind should have judgment rendered against them as being contumacious. 5Where there is a guardian or a curator, he must swear that the slave is not in the power of his owner; but where there is an agent, it is necessary for the owner himself to be sworn. 6Where the plaintiff has exacted an oath and the defendant has taken it, and afterwards the plaintiff desires to bring a noxal action, it should be considered whether an exception on the ground of “an oath taken” should not be granted against the plaintiff? Sabinus is of the opinion that it should not be granted, since the oath was taken with reference to a different matter; that is to say, the party swore that the slave was not in his power at the time, but now, since he is found to be in his power, suit can be brought on account of his act. Neratius, also, states that after the oath has been required, the plaintiff can proceed omitting the surrender by way of reparation, provided he claims that the defendant began to have the slave in his power only after he was sworn.

Ulpianus, On the Edict, Book XXIII. The Prætor says: “Where anyone is alleged to have harbored a male or female slave belonging to another, or have persuaded him or her maliciously to do anything which would depreciate the value of him or her, I will grant an action for double the value of the property.” 1He will not be liable under this Edict who purchases a slave in good faith, nor can he bring an action for the corruption of the slave, because he has no interest in the slave not being corrupted; and, in fact, if anyone should admit that this is true, the result would be that an action would lie in favor of two parties for the corruption of the slave, which is absurd. We are of the opinion that this action cannot be brought by a party whom a free man is serving as a slave in good faith. 2When the Prætor says “harbors,” we understand this to mean where anyone takes under his protection a slave belonging to another; and this, properly speaking, signifies giving him refuge for the purpose of concealing him, either on his own premises, or in a place or building belonging to another. 3“To persuade” does not exactly mean to compel and force anyone to obey you, but it is a term of moderate signification; for anyone can persuade another by either good or bad advice, and therefore the Prætor adds “maliciously,” by which he “diminishes the value,” hence, a party does not commit the offence unless he persuades the slave to do something by which his value may be lessened, and therefore, where a party solicits a slave either to do something or to contrive something which is dishonorable, he is held to be subject to this Edict. 4Shall a person, however, be liable where he has driven a slave of good habits to commit a crime, or instigates a bad slave, or shows him how to perpetrate the act? The better opinion is that even if he showed the bad slave how to perpetrate the offence he will be liable. And, in fact, if the slave had already intended to take to flight, or to commit a theft, and the person referred to should have approved of his intention, he will be liable, for the malice of the slave should not be increased by praising him; therefore, whether he made a good slave bad or a bad slave worse, he will still be held to have corrupted him. 5He also makes a slave worse who persuades him to commit some injury or theft, or induces him to take to flight, or instigates the slave of another to do these things, or to confuse his peculium, or to be a lover of women, or to wander about, or to devote himself to magical arts, or to be present too often at exhibitions, or to be riotous; or to persuade a slave who is a court official either by words or by bribery to mutilate or falsify the accounts of his master, or even to render an account of which he has been placed in charge unintelligible;

Ulpianus, On the Edict, Book XXIII. By the addition of the term “maliciously” the Prætor refers to the deceit of the party who persuades the slave, but if anyone should depreciate the value of the slave without malicious intent, he does not incur disgrace; and he is not liable if he does this for a joke. 1For this reason a question arises if anyone should persuade a slave belonging to another to climb up on a roof, or to descend into a well, and he, obeying, ascends or descends and breaks a leg or any other limb, or loses his life; will the party be liable? If he did this without malicious intent he will not be liable, but if he did it maliciously he will be;

Ulpianus, On the Edict, Book XXIII. The term “maliciously” also has reference to a person who harbors a slave, so that he is not liable unless he acted maliciously in doing so. If, however, anyone harbors a slave in order to hold him for his master, or, induced by humanity or pity, or for some other reason which is praiseworthy and just, he will not be liable. 1Where anyone maliciously persuades a slave whom he thought to be free to commit some act, it seems to me that he should be held liable; for he is guilty of a greater offence who, thinking a man is free, corrupts him, and therefore if he is a slave the party will be liable. 2This action is for double damages, even against a party who confesses, although the Lex Aquilia only imposes this penalty upon one who makes a denial. 3Where a male or female slave is said to have committed the act, an action is granted with the privilege of surrendering the slave by way of reparation. 4This action has reference to the time when the slave was corrupted or harbored, and not to the present time; and therefore if the slave should die, or be sold or manumitted, the action can, nevertheless, be brought; and where the right has once arisen, it is not extinguished by manumission;

Ulpianus, On the Edict, Book XXIII. Since bad slaves may perhaps obtain their freedom, and sometimes good reasons may arise subsequently for their manumission.

Ulpianus, On the Edict, Book XXIII. The question is asked by Julianus in the Ninth Book of the Digest, whether a party who corrupts a slave owned in common by myself and him, can be held liable to this action; and he says that he can be held liable by the other joint-owner; and, moreover, that suit can be brought against him for the partition of common property, and also on the ground of partnership, if the joint-owners are partners. But why does Julianus make the condition of the partner worse when he brings suit as such, than where he institutes proceedings against a stranger? Where an action is brought against a stranger, this can be done whether he harbored or corrupted the slave, but when it is brought on the ground of partnership, this is done without the alternative, that is to say, without the allegation of harboring him; for perhaps Julianus thought that this did not affect the partner, for no one can harbor his own slave; but if he did so for the purpose of concealing him, it can be maintained that he is liable. 1Where I have the usufruct in a slave and you the mere ownership, and the said slave is deteriorated by me, you can institute proceedings against me; but if you committed the act, I can proceed against you by means of a prætorian action; for this action is applicable to all kinds of corruption, and it is to the interest of the usufructuary for the slave in whom he enjoys this right to be of good habits. The usufructuary is also entitled to a prætorian action if another party should harbor or corrupt the slave. 2This action is also granted for double the value of the property. 3But it is still a question whether an estimate of the damage sustained by the slave in body or disposition should only be made, that is to say, of the amount of diminution of the value of the slave, or whether other things should be also taken into consideration. Neratius states that the party guilty of corrupting the slave should be compelled to pay damages to the amount to which the value of the slave is diminished on account of his being corrupted.

Ulpianus, On the Edict, Book XXIII. Neratius says that where thefts are committed afterwards, they are not to be included in the estimate. This opinion I think to be correct, for the words of the Edict, “As much as the value of the property,” embrace all damage. 1I persuade a slave to deface notes of debtors, and I undoubtedly will be liable; but if, on account of the habit of committing breaches of the law which he has contracted, the slave steals, defaces, or destroys, other documents of this kind, it must be said that the person who corrupted him is not liable on account of these acts. 2Ad Dig. 11,3,11,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 326, Note 8.Although an action will lie for the corruption of slaves with reference to property which is stolen, we can, nevertheless, bring an action for theft, as it must be held that the articles were removed with the aid and advice of the party who made the solicitation; nor will it be sufficient to bring either one of the actions, because the employment of one does not cause the other to be dispensed with. Julianus says the same thing with reference to a party who harbors and conceals a slave, and deteriorates him; for the offences of theft and of deteriorating a slave are distinct. In addition to this, the party will be liable to a personal action for the recovery of the property; for although the other may have obtained the slave by means of a suit of this kind, as well as a penalty by an action for theft, still, he is entitled to an action for the corruption of the slave to the amount of his interest:

Ulpianus, On the Edict, Book XXIII. This action is a perpetual one, and is not limited by time, and lies in favor of the heir and other successors; but it will not be granted against an heir, because it is a penal one. 1A party is also liable to this action if he corrupts a slave belonging to an estate; and he is also liable in a suit for the estate as a depredator,

Ulpianus, On the Edict, Book XXIII. The Prætor says: “Where anyone beats a person in whose house a game with dice is said to have taken place, or damages him in any way; or where anything at the time has been removed clandestinely from the house, I will not grant an action. Where anyone employs violence on account of a game with dice, I will punish him as the circumstances may demand.” 1Where gamblers rob one another, an action will not be refused on the ground of property taken by force; but it is only the host who is forbidden to bring suit, and not the gamblers, although they may seem to be unworthy of indulgence. 2It should also be noted that where the proprietor of the house has been beaten or has suffered loss, he cannot bring an action, no matter when or where this occurred, but theft can be committed with impunity in the house at the time when the gambling was going on, even though the party who commits any one of the offences may not have taken part in the game. It is certain that we must understand the term “house” to mean the habitation and domicile. 3Where the Prætor refuses to grant an action for theft, let us see whether this refers to the penal action alone, or whether the complainant wishes to introduce proceedings for the production of the property, or bring an action for recovery? It is stated by Pomponius that it is only the penal action which is refused, but this I do not think to be correct, as the Prætor says simply, “If anything has been removed clandestinely, I will not grant an action.” 4He says further: “Where anyone employs violence on account of a game with dice, I will punish him as the circumstances may demand.” This clause has reference to the punishment of a party who compels another to play, and signifies that he may be fined or sentenced to the quarries, or imprisoned in chains.

The Same, On the Edict, Book XXIII. A person who undertakes the performance of a mandate, “To place money for a certain time,” and does so, can be sued on the mandate, and must assign any rights of action acquired by delay.

The Same, On the Edict, Book XXIII. Where several articles are purchased for a single price, an action on purchase and sale can be brought with reference to each one of them.

The Same, On the Edict, Book XXIII. Where the ward, whose guardianship is being administered, brings an action on guardianship, it must be said that he should sometimes wait for a certain date for the payment of money loaned; for instance, if he lent money in the name of the ward, and the day for collecting the same has not yet arrived. It is evident that this only has reference to money which the guardian could, and should have lent, but if he should not have lent it the ward will not be required to wait.

Ulpianus, On the Edict, Book XXIII. If a surety or anyone else wishes to pay the creditor for the debtor, before the time when the claim becomes due, he should wait for the day when payment must be made.

Ulpianus, On the Edict, Book XXII. When the Prætor ascertains that anyone is unable to act as judge, he promises to excuse him; for instance, where he cannot serve on account of bad health, and it is certain that he is incapable of discharging the duties appertaining to a civil office; or when he is suffering under some disease which prevents him from transacting his own business; or if he is performing sacerdotal duties, and cannot conscientiously relinquish them; for such persons are excused for life. 1There are two ways of granting exemption from public employment: one, which is permanent, such as is granted to a soldier; another, which is for a short time, as when anyone obtains the mere exemption from an employment. 2Moreover, anyone who has no excuse can even be compelled to act as judge against his will. 3If a judge desires to excuse himself on account of the privilege to which he was entitled before he accepted the office, and this is done after he has begun to take cognizance of a case, he should not be heard; for by once accepting the office he renounces all right to an excuse. If, however, some just cause should afterwards arise so that he can temporarily be excused, the case should not be submitted to another magistrate, if there is any danger of either of the parties suffering injustice; for it is sometimes better to wait until the judge who has once taken cognizance of the case can return than to commit it to another to be decided.

Ulpianus, On the Edict, Book XXIII. The term “litigation” signifies every kind of action, whether real or personal.

The Same, On the Edict, Book XXIII. Property cannot be delivered which either does not exist or which is not considered as included in the contract.