NOXA´LIS ACTIO
NOXA´LIS ACTIO Those actions were “noxal” which were brought on the delict (e. g. theft, assault, damage to property) or quasidelict of a slave or child in power, or on damage done by an animal, against the .master, paterfamilias, or owner. Primarily they claimed damages for the wrong, but the defendant could escape the pecuniary loss, if he preferred it, by surrendering (noxae dedere) the guilty body to the plaintiff: and from noxa (meaning that guilty body) the name of the action was (according to Justinian, Inst. 4.8, 1) derived, though by other writers noxa is used to express the wrong itself (e. g. Liv. 21.30） or the punishment (e. g. Servius). No action properly lay against the dependent wrong-doer himself under the older law; but the remedy against the dominus or paterfamilias was the ordinary action on the delict, or quasi-delict, to which the edict or statute (Inst. 4.8, 4; Dig. 9, 4, 2, 1; 47, 1, 1, 2) gave the “noxal” character by permitting the defendant to escape damages by surrendering the delinquent to the plaintiff: “Namque erat iniquum” (says Justinian) “nequitiam eorum ultra ipsorum corpora dominis damnosam esse.” The true significance of the legal principle involved is admirably expounded in Mr. O. W. Holmes' Common Law, chap. i. In practical effect, though not in form, noxal actions were arbitrariae [ACTIO]; the defendant, if the judge pronounced against him, being condemned in the alternative, either to pay the damages assessed, or to give up the delinquent: “praetor ait . . . si servus insciente domino fecisse dicetur, in judicio adiciam aut noxam dedere” (Dig. 9, 3, 1, pr.).It would seem from Inst. 4.8, 7, that daughters were originally as liable to noxal surrender by their paterfamilias as sons in power, but that so far as they were concerned the usage had gone out in the time of the classical jurists, for Gaius (4.74, 79) speaks of the deditio of filiifamilias and slaves only. By the age of Justinian even the father's right of surrendering sons in his power in this manner had ceased to be exercised, and he expressly took it away, directing that children in power should be suable in person for their own delicts, the damages being paid out of their peculium. The master's right, however, of evading damages by noxal surrender of his slave was explicitly retained in his legislation. It would seem that the property in the slave was transferred by decree of the praetor: sons had been conveyed by mancipation, and stood in mancipio to the surrenderee (Gaius, 4.79), but could demand their release as a matter of right as soon as by the result of their labour or otherwise they contrived to pay the damages assessed in the action (Papinian, Coll. 2, 3). This principle, as Justinian remarks in Inst. 4.8, 3, was extended to the case of surrendered slaves. For the deditio of animals in a noxal action, see PAUPERIES
A leading rule in all such cases was “noxalis actio caput sequitur,” which apparently became a proverb. The action followed the noxa, and had to be brought against the person under whose lawful control he or it was, not at the commission of the wrong, but at the commencement of legal proceedings. Thus, if A´s slave stole a purse, and then was sold to B, B was the proper defendant; and if the delinquent were manumitted, he could be sued in person by direct, not noxal action. Similarly, if a free man did the wrong, and then became a slave, the remedy was against his master; and on the same principle, if the slave died before the action had reached the stage of litis contestatio, the master's liability terminated, even though his death was not known (Dig. 9, 4, 39, 4). A master had no remedy by action if a delict were committed against him by a slave of his own, even though the latter were manumitted or alienated (Inst. 4.8, 6); and if A´s slave stole from B, and then became B‘s property, B‘s right of action was absolutely lost (as the law was settled by Justinian), though the Proculian School of jurists had maintained that it was only suspended, recovering its vitality so soon as his ownership over the delinquent determined (Gaius, 4.78). It has been conjectured that noxal actions were originally the expression of an absolute claim to have the offender delivered [p. 2.247]up for the exercise of private vengeance, whether his offence were delictual or merely breach of contract. The surrender of Postumius to the Samnites by the Romans with all the forms of noxae deditio (Liv. 9.10） was made as atonement for non-observance of the treaty which he had concluded with them, and from which the Romans wished to release themselves--“ut populus religione solvatur.” Under Roman municipal law non-fulfilment of a promise made by sponsio entailed in the end quasi-slavery [MANUS INJECTIO], and the idea was consistently applied by them in international relations. See Mr. Holmes' work already referred to, pp. 8-12, and cf. Ihering, Geist des römischen Rechts, i. p. 131.
The chief original authorities for noxae deditio are Gaius, 4.74-79; Paulus, Sent. rec. 2.31, 7-9;--Dig. 2, 9; 9, 4;--Cod. 3, 41; Inst. 4.8 and 9.
[J.B.M]