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[001] especially if it is sued civilly, and in the actio iniuriarum persons of rank may sue
[002] by a procurator, as in C. 3, qu. 9, c. 18 and C. To the extent that it is
[003] penal an action does not lie against heirs and the like, save to the extent that something
[004] accrues to them.24 If an action is brought against an infant or a lunatic they
[005] are not liable in damages save to the extent that something accrues to them, as
[006] above, since they lack animus, [that is], unless the infant is capable of perceiving
[007] the wrongful character of his act.>25

Of the threefold action for things taken by force.

[009] 26A civil action is sometimes triplex, personal, penal and recuperatory,27 [and
[010] quasi-mixed,28 that a corporeal and immovable thing be restored to the person
[011] despoiled and29 that an incorporeal thing, as a right, be restored to its proper state,
[012] as may be said of servitudes, of a right of way or carriage, common of pasture and the
[013] like, [for] all of these may be determined by a single action, as by the assise of
[014] novel disseisin, [as] different kinds of disseisins.]30 as [the action] for the restoration
[015] of those despoiled. It is personal because, [to the extent that it is penal,] it lies only
[016] for the disseisee against the disseisor, and only against the disseisor if the disseisee
[017] is alive.31 It is also penal, because of the delict, because ‘wrongfully and without
[018] judgment,’ and [because] to the extent that it is penal it is extinguished by the death
[019] of one or both. It is also recuperatory, [sometimes recuperatory only and not penal,
[020] as to those who are free of the delict of disseisin, for he who is without fault ought not
[021] to suffer punishment,32 as will be explained below [in the portion] on the assise of
[022] novel disseisin.]33 34From one wrongful act several penal actions may arise in a civil
[023] cause, and lie for one or several against one or several, and all may well be brought at
[024] the same time when they are not contradictory or prejudicial or repugnant to one
[025] another,35 36[as where one having no right in another's land, nor any servitude over
[026] it, raises an embankment upon it without the consent of the lord. From this act
[027] several actions may lie for the lord, namely, the assise of novel disseisin for a free
[028] tenement, since he has built a new work on another's land and has thus abridged it
[029] against its owner's will. A second action may also be available to him, that the
[030] embankment was raised to the nuisance of his free tenement, because a road may be
[031] obstructed by the embankment. A third may also lie,


24. D.; 50.17.38

25. D.; infra 384

26. Br. and Azo, 214-18

27. Infra iii, 26, 157

28. Supra 293

29. ‘et’

30. ‘sicut [actio] de . . . spoliatorum,’ from line 9

31. ‘et tantum . . . superstes sit,’ from line 17

32. Supra 290, infra 343

33. Infra iii, 26

34. New paragraph

35. Supra 322

36. This portion belongs infra 325 at n. 5; om: ‘ut videri poterit’

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