Bracton and his Relation to the Roman Civil Law.
349
or quasi malfeasances. From malfeasances, law in rem actio, which is brought against as in cases of delicts and injuries, of which the possessor of the thing for the recovery there are many kinds; as, if any one should of the thing itself; such are real actions. commit the crime of injury to majesty (laesae The action in rem, Bracton says (fol. 102), majestatis), homicide, or theft, etc. They is that given against the possessor who pos arose from quasi malfeasances, as if a judge sesses in his own name, and not in the knowingly should make an erroneous judg name of another; because he has the thing, ment, he would seem to be bound quasi ex or is able to restore it. It is given to him delic1o, but because he is not positively who claims the thing to be his and seeks bound either ex maleficio or ex contractu, the thing itself, and not its value or a sim and is considered to have erred somewhat ilar thing. from want of skill, he therefore appears to As, if one claims from another a certain be bound quasi ex maleficio." thing, as a farm or land, and claims that he In Chapter III. he treats of the division of is the owner, and pursues the thing itself, actions, of which he says the first division is and not the value of it, from one not per that some are in rem, some are in personam, sonally bound to him, the action or plea is and some are mixed. Of personal actions, in rem; and that whether the plaintiff prose some are civil and some are criminal, etc.; j cuted for the thing in his own right or in so some arise ex contractil or quasi, or ex the right of another thing which he pos maleficio or quasi. A personal action ex con- sessed, — as religious persons or rectors in tractu arises when any one is bound for giv the name of their church, as for something ing or doing something against him who has in common, — or whether he seeks the prin contracted, and his heirs, unless it be penal; cipal thing or something belonging to it, — and such are called native (nativae) actions, as when one claims an advowson of some because they are born of contracts. Nearly church, or a common of pasture or a right all personal actions are ex contractu; as, the of way (ire vel agere), or some such thing, mutuum, the commodatum, the depositum, which consists in a right, the plea or action mandatum, exemptio venditio, locatio, et would be in rem. Thus the action in rem, conductio. Of personal actions which arise as defined by Bracton, was brought to ex maleficio, some are prosecuted for a pen recover a thing or a servitude or easement. alty only, as the action of theft (actio furti); Such was the nature of the action called in but others are prosecuted for the thing itself rem, of the Civil Law. Where the thing and the penalty also, as the actio vi bonorum demanded is a movable, Bracton says, the raptorum, and are therefore twofold, be action or plea (placitum) should be both cause they seek both the thing and the pen in rem and in personam; that the thing alty, and are therefore both in rem and in may be recovered, or, in default thereof, the personam; and when they are in one aspect value of it; and that he should set forth of the case persecutory of a thing, they are his action thus: "I demand of such a one brought against all persons who are able to that he restore to me such a thing, of such restore the thing (the possessors), whether avalue;" or, "I complain that such a one the possessor is the spoliator or another; unjustly detains from me or has robbed me but those that are penal can be only brought of such a thing of so much value; " other wise the vindication of a movable thing, the against the wrong-doer." It will be observed that the distinctions value not being fixed, would not be good. lastly above made are clearly from the In giving examples of the action in rem, Roman law, and that the action in rem of Bracton gives only cases where an im Bracton is not the present common-law movable or a servitude attached to an im action against the thing itself, but the civil movable is claimed, and makes a distinction
