ENACTMENTS OF JUSTINIAN.
THE DIGEST OR PANDECTS.
|~ Book IX ~|
( S. P. Scott, The Civil Law, III-IV, Cincinnati, 1932 ).
Tit. 1. Concerning the commission of damage by a quadruped.
1. Ulpianus, On the Edict, Book XVIII.
Where a quadruped is said to have committed damage, an action which has come down from a Law of the Twelve Tables may be brought; which Law prescribes that either whatever caused the damage must be given up, that is, that the animal that committed it shall be surrendered, or an amount of money equivalent to the damage shall be paid.
(1) The term "noxia" means the offence itself.
(2) This action has reference to every kind of quadruped.
(3) The Praetor says "pauperiem fecisse", which signifies the damage caused without wrong by the animal which commits it, for an animal cannot be guilty of wrong in law, because it is deficient in reason.
(4) Therefore, as Servius states, this action is available where an animal commits damage after its ferocity has been aroused; for example, where a horse which has the habit of kicking, kicks, or an ox which is accustomed to butt, does so; or a mule commits damage by reason of extreme savageness. But if an animal should upset a load on anyone on account of the inequality of the ground, or the negligence of the driver, or because the animal was overloaded; this action will not lie, but proceedings must be instituted for wrongful injury.
(5) Where, however, a dog, while he is being led by someone, breaks away on account of his viciousness, and inflicts injury upon another; then if he could have been held more securely by some one else, or if the party should not have led him through that place, this action will not lie, and the party who had charge of the dog will be liable.
(6) Moreover, this action will not lie if the savage animal causes any damage through the instigation of another.
(7) And, generally speaking, this action can be brought whenever a savage animal does any damage which is contrary to its nature, and, therefore, if a horse irritated by pain, kicks, this action will not lie; but the party who struck or wounded the horse will be liable rather to an action in factum, than under the Lex Aquilia, for no other reason than that the party did not commit the injury with his own body. But where anyone caresses a horse, or pats him, and he is kicked by it, there will be ground for this action.
(8) Where one animal provokes another and causes it to commit some damage, the action must be brought with reference to the one that caused the provocation.
(9) This action is available whether the animal committed the damage with its own body or through something else with which it was in contact; as for instance, where an ox bruises someone by means of a wagon or by anything else that is upset.
(10) This action will not be available in the case of wild beasts, on account of their natural ferocity; and therefore if a bear should escape and commit damage, its former owner cannot be sued, because when the animal escaped he ceased to be the owner; and therefore, even if I should kill it, the carcass will be mine.
(11) Where two rams or two bulls fight and one kills the other, Quintus Mucius makes a distinction; for he holds that the action will not lie if the one that was the aggressor is killed, but if the one not guilty of the provocation is killed, the action may be brought; and therefore the owner must either pay the damage or surrender the animal in lieu thereof.
(12) Also, in the case of quadrupeds, the offence follows the animal; and this action can be brought against the party to whom the animal belongs, and not against him to whom it belonged when it committed the damage.
(13) It is evident that if the animal should die before issue is joined, the right of action will be extinguished.
(14) To surrender the animal by way of reparation is to give it up while it is alive. If it belongs to several parties, an action for damages can be brought against them individually, just as in case of a slave.
(15) Sometimes, however, the owner will not be sued to compel him to give up the animal by way of reparation, but an action will be brought against him for the entire amount; as for instance, where having been asked in court whether the animal belongs to him he answers that it does not, and if it should be proved that it was his, judgment shall be rendered against him for the entire amount.
(16) If the animal should be killed by anyone after issue has been joined, since an action will lie against the owner under the Lex Aquilia, consideration of the Lex Aquilia will be taken in court, because the owner has lost the power to surrender the animal by way of reparation; and therefore, in the case which has been stated, he must tender the estimated amount of damages, unless he is ready to assign his right of action against him who killed the animal.
(17) There is no doubt whatever that this action will pass to an heir and the other successor of the party injured; and also that it can be brought against heirs and other successors, not by the right of succession but on the ground of ownership.
2. Paulus, On the Edict, Book XXII.
This action will lie, not only in favor of the owner of the damaged property, but also in favor of any party in interest; as for instance, of one to whom the property was loaned, and also of a fuller, because those who are liable are held to have sustained damage.
(1) Where anyone who is trying to escape from another, for example, from a magistrate, betakes himself to a neighboring shop and is bitten there by a ferocious dog, certain authorities hold that he has no right of action on account of the dog; but that he would have one if the dog was loose.
3. Gaius, On the Provincial Edict, Book VII.
There is no doubt that an action can be brought under this law in behalf of persons who are free; as, for instance, where an animal wounds the head of a family, or the son of a family, provided no account is taken of disfigurement, since anyone who is free does not admit of appraisement; but account may be taken of the expenses incurred for the cure of the injury and of the loss of labor which the party could not perform for the reason that he was disabled.
4. Paulus, On the Edict, Book XXII.
An equitable action will be available under these circumstances where the damage was committed, not by a quadruped but by some other animal.
5. Alfenus, Digest, Book II.
a groom was leading a horse to the stable of an inn, the horse sniffed
at a mule, and the mule kicked and broke the groom's leg. An opinion
was requested whether suit could be brought against the owner of the
mule, on the ground that it had caused the injury, and I answered
that it could.
The Lex Aquilia annulled all laws previously enacted with reference to the reparation of unlawful damage, whether these were the Twelve Tables or any others; which laws it is not necessary to specify at present.
(1) The Lex Aquilia is a plebiscite; whose enactment Aquilius, a tribune of the people, proposed to the populace.
2. Gaius, On the Provincial Edict, Book VII.
It is provided by the first section of the Lex Aquilia that, "Where anyone unlawfully kills a male or female slave belonging to another, or a quadruped included in the class of cattle, let him be required to pay a sum equal to the greatest value that the same was worth during the past year".
(1) And then the law further provides that, "An action for double damages may be brought against a person who makes a denial".
(2) It therefore appears that the law places in the same category with slaves animals which are included under the head of cattle, and are kept in herds, as, for instance, sheep, goats, oxen, horses, mules, and asses. The question arises whether hogs are included under the designation of cattle, and it is very properly decided by Labeo that they are. Dogs, however, do not come under this head; and wild beasts are far from being included, as for instance, bears, lions, and panthers. Elephants and camels are, as it were, mixed, for they perform the labor of beasts of burden, and yet their nature is wild, and therefore they must be included in the first Section.
3. Ulpianus, On the Edict, Book XVIII.
Where a male or a female slave has been unlawfully killed, the Lex Aquilia is applicable. It is added with reason that it must be unlawfully killed, as it is not sufficient for it to be merely killed, but this must be done in violation of law.
4. Gaius, On the Provincial Edict, Book VII.
Therefore, if I kill your slave who is a thief and is attacking me at the time, I shall be free from liability, "For natural reason permits a man to protect himself from danger".
(1) The Law of the Twelve Tables permits anyone to kill a thief who is caught at night, provided, however, that he gives warning by an outcry; and it permits him to kill the thief in the day-time, if he is caught and defends himself with a weapon, provided always, that he calls others to witness with an outcry.
5. Ulpianus, On the Edict, Book XVIII.
Where, however, anyone kills another who is attacking him with a weapon, he is not held to have killed him unlawfully; and where anyone kills a thief through fear of death, there is no doubt that he is not liable under the Lex Aquilia. But if he is able to seize him, and prefers to kill him, the better opinion is that he commits an unlawful act, and therefore he will also be liable under the Lex Cornelia.
(1) We must here understand the term "injury" to mean not some insult, as we do with reference to an action for injury, but something done illegally, that is to say contrary to the law; for instance, where anyone kills by negligence, and hence sometimes both actions can be brought, namely, that under the Lex Aquilia, and that for injury; but, in this case there will be two assessments, one for damage, and the other for insult, consequently, we must here understand the term "injury" to signify damage committed through negligence, even by a party who did not intend to do wrong.
(2) Therefore we ask whether an action under the Lex Aquilia will lie where an insane person causes damage? Pegasus denies that it will, for how can anyone be negligent who is not in his right mind? This is perfectly true. Hence an action under the Lex Aquilia will not lie; just as where an animal causes the damage, or where a tile falls from a roof. Again, if a child causes any damage the same rule applies. If, however, a boy who has not reached puberty causes it, Labeo says that he is liable under the Lex Aquilia, because he would be liable for theft; and I think this opinion is correct, if he is capable of committing a breach of the law.
(3) Where a teacher wounds or kills a slave while instructing him, will he be liable under the Lex Aquilia on the ground that he committed unlawful damage? Julianus says that a person was held liable under the Lex Aquilia, who blinded a pupil in one eye while instructing him; and much more would he have been liable, if he had killed him. He supposes the following case. A shoemaker, while teaching his trade to a boy who was freeborn and the son of a family, and who did not properly perform the task which he had given him, struck him on the neck with a last, and the boy's eye was destroyed. Julianus says that, in this instance, an action for injury will not lie because he inflicted the blow, not for the purpose of causing him injury, but of warning and teaching him. Still, he is in doubt as to whether an action on a contract will lie, because only moderate punishment is conceded to a person who imparts instruction. I do not doubt, however, that an action can be brought under the Lex Aquilia;
6. Paulus, On the Edict, Book XXII.
As extreme severity on the part of an instructor is attributed to negligence.
7. Ulpianus, On the Edict, Book XVIII.
By this action the father will obtain damages to the amount of the value of the services of his son which he lost on account of the destruction of his eye, as well as the expenses he incurred for his medical treatment.
(1) We must understand the term "kill" to mean where this was done either with a sword, a club, or some other weapon, or with the hands if strangulation was used, or with a kick, or by striking him on the head, or in any other way whatsoever.
(2) The Lex Aquilia will apply where anyone who has been too heavily laden throws down his load and kills a slave; for it was in his power not to be overloaded in this manner. Pegasus says that if anyone should slip and crush with his load a slave belonging to another, he will be liable under the Lex Aquilia, if he loaded himself more heavily than he should have done, or walked carelessly over a slippery place.
(3) In like manner, where anyone injures another because of someone pushing him, Proculus holds that neither he who gave the push is liable, because he did not kill him, nor he who was pushed either, because he did not commit wrongful injury; according to which opinion an action in factum should be granted against the party who gave the push.
(4) Where anyone in a wrestling match or in a wrestling and boxing contest or where two boxers are engaged, kills another; and he does so in a public exhibition, the Lex Aquilia will not apply, because the damage must be considered to have been committed for the sake of renown and courage, and not with the intent to cause injury. This, however, is not applicable to the case of a slave, since freeborn persons are accustomed to take part in such contests, but it does apply where the son of a family is wounded. It is evident that if one party inflicts a wound while the other was retiring, the Lex Aquilia will be applicable; or if he kills a slave where there is no contest, unless this is done at the instigation of the master; for then the Lex Aquilia will not apply.
(5) Where anyone lightly strikes a slave who is sick, and he dies; Labeo justly holds that he will be liable under the Lex Aquilia, for a blow that is mortal to one man, often will not be so to another.
(6) Celsus says that it makes a great deal of difference whether the party actually kills, or provides the cause of death, as he who provides the cause of death is not liable under the Lex Aquilia, but is to an action in factum. With reference to this, he cites the case of a party who administered poison as medicine, and who he says provided the cause of death; just as one who places a sword in the hands of an insane person, for the latter would not be liable under the Lex Aquilia, but would be to an action in factum.
(7) But where anyone throws another from a bridge, whether he is killed by the blow which he received, or is submerged and drowned, or, overcome by the force of the current, dies exhausted; the culprit, Celsus says, is liable under the Lex Aquilia, just as if he had dashed a boy against a rock. Proculus holds that if a physician should operate upon a slave unskillfully, an action will lie either on the contract, or under the Lex Aquilia.
8. Gaius, On the Provincial Edict, Book VII.
The same rule is applicable where he wrongfully makes use of a drug; but if a surgeon operates properly, and does not employ any further curative measures, he will not be free from responsibility, but is considered to be guilty of negligence.
(1) Moreover, where a muleteer, through want of skill, is unable to restrain the course of his mules, and they crush a slave belonging to another, it is ordinarily said that the driver is liable on account of negligence. The same view is held if he cannot control his mules because of want of strength; nor does it seem to be unjust that want of strength should furnish ground for negligence, because no one ought to undertake anything which he knows, or ought to know, will be dangerous to others on account of his weakness. The law is the same in the case of a person who, through want of skill or want of strength, cannot manage the horse on which he is riding.
9. Ulpianus, On the Edict, Book XVIII.
Moreover, where a midwife administers a drug to a woman and she dies in consequence, Labeo makes a distinction, namely: that if she administered it with her own hands she is held to have killed the woman, but if she gave it to the latter in order that she might take it, an action in factum should be granted, and this opinion is correct; for she rather provided the cause of death, than actually killed the woman.
(1) Where anyone, either by force of persuasion, administers a drug to another, either by the mouth, or by injection, or anoints him with some poisonous substance; he will be liable under the Lex Aquilia, just as the midwife who administers a drug is liable.
(2) Where anyone kills a slave by starvation, Neratius says he is liable to an action in factum.
(3) If my slave is riding on horseback, and by frightening the horse you cause the slave to be thrown into a river, and he loses his life in consequence, Ofilius writes that an action in factiim should be granted; just as if my slave had been drawn into ambush by one man and killed by another.
(4) Again, where a slave is killed by parties who are practicing with javelins for amusement, the Lex Aquilia is applicable; but where others are practicing with javelins, and a slave crosses the place the Lex Aquilia will not apply, because he should not have rashly crossed the field where this practice was going on; but still, if anyone intentionally casts a javelin at him, he will be liable under the Lex Aquilia.
10. Paulus, On the Edict, Book XXII.
For a dangerous game should be classed as an act of negligence,
11. Ulpianus, On the Edict, Book VIII.
Mela also says that if, while several persons are playing ball, the ball having been struck too violently should fall upon the hand of a barber who is shaving a slave at the time, in such a way that the throat of the latter is cut by the razor; the party responsible for negligence is liable under the Lex Aquilia. Proculus thinks that the barber is to blame; and, indeed, if he had the habit of shaving persons in a place where it is customary to play ball, or where there was much travel, he is in a certain degree responsible; although it may not improperly be held that where anyone seats himself in a barber's chair in a dangerous place, he has only himself to blame.
(1) Where one party holds a slave and another kills him, the party who held him is liable to an action in factum, since he provided the cause of death.
(2) But where several persons struck the slave, let us consider whether all of them will be liable, just as if they had all killed him? And, if it is known by whose blow he lost his life, the former will be liable for having killed him; but if this is not known, Julianus says all of them can be held liable for his death, and if proceedings are instituted against only one, the others cannot be discharged; for under the Lex Aquilia, where one man pays he does not release another, as the action is a penal one.
(3) Celsus states that where anyone strikes a slave a mortal blow, and another deprives him of life, the former will not be held liable for having killed him, but only for having wounded him, for the reason that he died from a wound inflicted by another, but the latter will be liable because he killed him; and this opinion is held by Marcellus, and is the more reasonable one.
(4) It was decided by the ancient authorities that where several persons throw down a beam which crushes a slave, all are equally liable to an action under the Lex Aquilia.
(5) Proculus also gave it as his opinion that a party who provoked a dog, and caused him to bite some one, would be liable to an action under the Lex Aquilia, even though he did not have hold of the dog. Julianus, however, says that, in this instance, he is liable under the Lex Aquilia only if he held the dog, and caused him to bite the other party; but if he did not hold him, an action in factum should be brought against him.
(6) An action under the Lex Aquilia can be brought by the master, that is, by the owner.
(7) Where wrongful damage is done to a slave that I was about to return to you on delivery of the price, Julianus says that I have a right to an action under the Lex Aquilia, and that when I begin to return the slave I must assign it to you.
(8) But if the slave is serving in good faith some person who is not his owner, will the latter have a right of action under the Lex Aquilia? The better opinion is that an action in factum should be granted.
(9) Julianus says that where clothing is loaned to anyone and it is torn, the latter cannot bring an action under the Lex Aquilia, but the owner of the clothing can do so.
(10) Julianus discussed the point whether an usufructuary or a party entitled to the use of property has a right of action under the Lex Aquilia? I think the better opinion is that in a case of this kind, a praetorian action should be granted.
12. Paulus, On Sabinus, Book X.
Where the mere owner of property wounds or kills a slave in whom I have the usufruct, an action should be granted me, as under the Lex Aquilia, for damages in proportion to the amount of my usufruct; and that portion of the year which elapsed previous to my usufruct must also be included in the assessment of said damages.
13. Ulpianus, On the Edict, Book XVIII.
A freeman is entitled to a praetorian action, based on the Lex Aquilia, in his own name; but he cannot bring the direct action, because no one can be held to be the owner of his own limbs. A master, however, can bring an action on account of a fugitive slave.
(1) Julianus says that if a freeman serves me in good faith as a slave, he himself is liable to me under the Lex Aquilia.
(2) Where a slave belonging to an estate is killed, the question arises who can bring suit under the Lex Aquilia, since there is no owner of said slave? Celsus says, that it is the intention of the law that all damages should be made good to the owner, and therefore the estate will be considered the owner; hence when the estate is entered upon, the heir can institute proceedings.
(3) Where a slave who was bequeathed is killed after the estate has been entered upon, the right of action under the Lex Aquilia belongs to the legatee, unless he did not accept the legacy until after the death of the slave; because if he rejected it, Julianus says that the result will be that the right of action must be said to belong to the heir.
14. Paulus, On the Edict, Book XXII.
But where the heir himself kills the slave, it has been established that an action against him must be granted to the legatee.
15. Ulpianus, On the Edict, Book XVIII.
In consequence of what was written it must be stated that, if the slave who was bequeathed is killed before the estate is entered upon, the right of action under the Lex Aquilia must remain with the heir, on account of having been acquired through the estate. If, however, the slave was wounded before the estate was entered upon, then, in fact, the right of action remained as a portion of the assets of the estate, but the heir is obliged to assign it to the legatee.
(1) Where a slave is mortally wounded and afterwards loses his life through the fall of a building, or through shipwreck, or through some blow, sooner than he otherwise would have done; an action cannot be brought on the ground of his death, but only for wounding him. If, however, he was manumitted or sold, and afterwards died of the wound, Julianus says an action can be brought as for having killed him. This difference exists because he was killed by you at the time you wounded him, although this only became apparent when he died; but in the former instances the fall of the building did not permit it to appear whether he was killed or not. Where a slave is mortally wounded and you order him to be free, and appoint him your heir, and he then dies, his heir cannot bring suit under the Lex Aquilia,
16. Marcianus, Rules, Book IV.
Because the affair has come to such a pass that the right to bring suit could not have originally existed.
17. Ulpianus, On the Edict, Book XVIII.
Where an owner kills his own slave, he will be liable to an action in factum brought by a bona fide possessor or a party who held the slave in pledge.
(1) (If Stichus has been bequeathed to two persons conjointly, and having been killed is rejected by one of the legatees; I think that one legatee alone can bring suit under the Lex Aquilia, because the ownership seems to have vested in him by retroactive effect.)
18. Paulus, On Sabinus, Book X.
Where, however, a party who has received a slave in pledge kills or wounds him, suit can be brought against him under the Lex Aquilia and also on the pledge, but the plaintiff must be content with one or other of these actions.
19. Ulpianus, On the Edict, Book XVIII.
But where anyone kills a slave held in common he is liable under the Lex Aquilia, so Celsus says; and the same rule applies if he wounds him:
20. The Same, On Sabinus, Book XLII.
That is, with reference to the share for which he brings suit as plaintiff.
21. The Same, On the Edict, Book XVIII.
The law says: "The greatest value of the slave during that past year". This clause refers to an assessment of the amount of the damage which was inflicted.
(1) The year is to be calculated back from the day on which the slave was killed; but if he was only mortally wounded and died after a long interval had elapsed, then, according to Julianus, we must compute the year from the day on which he was wounded; although Celsus holds a different opinion.
(2) Must we, however, only appraise the value of the body of the slave when he was killed, or shall we not rather estimate what our interest was in his not being killed? The present rule is that an estimate shall be made of what our interest was worth.
22. Paulus, On the Edict, Book XXII.
Hence if you have killed a slave whom I had contracted to deliver to some party under a penalty, the benefit to be derived by me must be considered in the hearing of the case.
(1) The personal qualities of the slave must also be taken into consideration in making the estimate, as for instance, where someone kills a slave who belonged to a troop of actors or singers; or one of twins; or one of a team of four horses; or the male or female of a pair of mules; for, under such circumstances, not only should an estimate be made of the value of the animal that is destroyed, but the depreciation of those that remain must also be taken into account.
23. Ulpianus, On the Edict, Book XVIII.
Hence Neratius states that if a slave who has been appointed an heir is killed, the value of the estate must also be taken into consideration.
(1) Julianus says that if a slave who had been liberated and appointed heir is killed, neither the substituted heir nor the heir at law can recover the appraised value of the estate by an action under the Lex Aquilia, as the slave had not yet obtained it; and this opinion is correct. Therefore, the sole estimate which can be made is that of the value of the slave, since this is held to be the only thing in which the substitute is interested; but I think that even the estimate of his value should not be made, because if he had been the heir he would also have been free.
(2) Julianus further says that if I am appointed an heir under the condition that I will manumit Stichus, and Stichus is killed after the death of the testator, the appraised amount that I will be entitled to will likewise include the value of the estate; for the condition was not fulfilled on account of the death of the slave; but if the slave was killed during the lifetime of the testator, the estimated value of the estate cannot be considered, because the greatest value of the slave during the preceding year was retroactively taken into account.
(3) Julianus also says that the appraisement of the value of the slave who was killed can only be made with reference to the time when he was worth the most during that year; and, therefore, if the thumb of a valuable artist was cut off, and within a year of the time when this was done he was killed; his owner can bring an action under the Lex Aquilia, and his value must be estimated at the amount he was worth before he lost his skill along with his thumb.
(4) Where, however, a slave is killed who had committed great frauds in my accounts, and whom I had intended to put to torture in order to extract from him the names of his accomplices in the frauds, Labeo very properly holds that the value of the slave should be estimated at the amount of the interest I had in detecting the frauds committed by him, and not on the basis of the loss caused by the slave himself.
(5) If, however, a well-behaved slave should change his habits, and be killed within a year; the estimate of his value should be made upon the basis of what he was worth before the change took place.
(6) In short, it must be held that whatever advantage rendered the slave more valuable at any time within the year during which he was killed, should be included in the appraisement of his actual value.
(7) Where an infant slave who is not yet a year old is killed, the better opinion is that the appraisement of his value should be referred to that part of the year during which he was living.
(8) It is established that this action is granted to the heir and other successors; but it will not be granted against the heir and the successors of the other party, as it is a penal one; unless the said heir should have become more wealthy through the damage which was caused.
(9) Where a slave is killed through malice, it is established that his owner can also bring suit under the Lex Cornelia, and if he proceeds under the Lex Aquilia, his suit under the Lex Cornelia will not be barred.
(10) This action can be brought for civil damages where the party confesses his guilt, and for double damages where he denies it.
(11) Where anyone confesses that he killed a slave who is still living, and afterwards is prepared to show that the said slave is still alive; Julianus says that the Lex Aquilia does not apply, even though the party confesses that he killed him; because where the suit is based on a confession the plaintiff is not required to prove that the party who killed the slave was the defendant, but it is essential that the slave should have been killed by somebody.
24. Paulus, On the Edict, Book XXII.
This point is more clearly shown where a slave is said to be wounded; but if the defendant should confess that he has wounded him, and this was not the case, upon what wound are we to base the appraisement, or to what date are we to refer?
25. Ulpianus, On the Edict, Book XVIII.
Hence, if the slave was not killed, but died, the better opinion is that the defendant should not be liable for the dead slave, even though he may have confessed that he killed him.
(1) Where an agent, a guardian, a curator, or anyone else confesses that his absent principal wounded a slave, a praetorian action based upon the confession should be granted against said party.
(2) It should be noted that in this action which is granted against the person making a confession, the judge is appointed not for the purpose of rendering a decision, but to assess the damages; for no trial can take place for the conviction of persons who confess.
26. Paulus, On the Edict, Book XXII.
Suppose, for example, that the person against whom the action is brought should confess that he killed the slave, and be prepared to pay his appraised value, and his adversary makes a very high estimate of the same.
27. Ulpianus, On the Edict, Book XVIII.
Where one slave carries off another belonging to a different owner, and kills him, both Julianus and Celsus hold that an action based on theft as well as one on wrongful damage will lie.
(1) Where a slave is owned in common, that is to say, belongs to you and me, and he kills another slave belonging to me, a suit based on the Lex Aquilia can be brought against you, if the slave acted with your consent; and Proculus also held this opinion, as Urseius asserts. But if he did not commit the act with your consent, a noxal action will not lie, lest it might be in the power of the slave to belong to you alone. I think this to be correct.
(2) Moreover, if a slave who is held in common by you and me is killed by a slave belonging to Titius, Celsus says that if one of the owners brings suit, he will either obtain a proportionate amount of the damages assessed, or the slave must be absolutely surrendered by way of reparation, because this is a matter which is not susceptible of division.
(3) The owner is liable on account of the slave who committed the homicide, and he whom he is serving as a slave in good faith is not liable; but the question arises whether a party whose slave is a fugitive, is liable on his account under the Lex Aquilia? Julianus says that he is liable. This is perfectly true, and Marcellus also holds the same opinion.
(4) The second Section of this law has fallen into desuetude.
(5) In the third Section the Lex Aquilia says, "If anyone damages the property of another except by killing slaves or cattle, whatever the value of the property burned, broken to pieces, or injured, was, within the preceding thirty days; the party must be compelled to pay the amount to the owner of the same".
(6) Hence, if a man should not kill a slave or an animal but should burn, break, or injure any other property, proceedings could undoubtedly be taken under this provision of the law. Therefore, if you throw a torch at my slave and burn him, you will be liable to me.
(7) Moreover, if you set fire to my trees, or to my farmhouse, I am entitled to an action under the Lex Aquilia.
(8) If anyone should intend to burn my house, and the fire spreads to the house of my neighbor, he will be liable also to the neighbor under the Lex Aquilia; and he will be not less liable to the tenants, on account of the burning of their personal property.
(9) If the slave of a tenant who has charge of a furnace goes to sleep in front of it, and the house burns down; Neratius says that where an action is brought on the lease the tenant must make good the loss, if he was negligent in the selection of persons in his service; but where one person kindled the fire in the furnace, and another was negligent in looking after it, will he who kindled the fire be liable? He who had charge of the fire did nothing, and he who kindled it properly was blameless; what then is the conclusion? I think that a praetorian action will lie both against him who fell asleep before the furnace and against him who neglected to attend to it, for no one should say with reference to the one who went to sleep that his failing was only human and natural, since he should either have extinguished the fire, or have protected it in such a way that it could not spread.
(10) If you have an oven against a party-wall will you be liable for wrongful damage? Proculus says that no action can be brought, because none will lie against a party who has a hearth. Therefore, I think it is more just that an action should be granted in factum, of course, if the wall is burned; but if you have not yet caused me any damage, but your fire is in such a place that I am afraid that you will do so, I think that a bond providing against threatened injury will be sufficient.
(11) Proculus says that where the slaves of a tenant burn down a farm-house, the tenant will be liable either under the lease or under the Lex Aquilia, so that he can surrender the slaves by way of reparation; and where the case has been decided under one of the actions, no further proceedings can be instituted under the other. This is understood only to apply where the tenant was not guilty of negligence; but if he owned slaves who were in the habit of committing criminal acts, he will be liable for wrongful damage for having slaves of this kind. He states that the same rule must be observed with reference to persons who lodge in a building; and this opinion is reasonable.
(12) If my bees fly away to yours, and you burn them, Celsus says that I have a right of action against you under the Lex Aquilia.
(13) The law says "break to pieces". This word almost all ancient authorities understood to mean the same as "destroy".
(14) Therefore, Celsus makes the inquiry, if you sowed darnel or weeds in the wheat-field of another, the owner of the same can not only institute proceedings under the interdict Quod vi aut clam, (or if the land is leased, the tenant can do so) but he can also bring an action in factum; and if the tenant brings it he must give security that no other proceedings shall be instituted; this, of course, being done in order to prevent the owner from causing further annoyance, for it is one kind of damage to destroy or change something, for the purpose of giving cause for a suit under the Lex Aquilia; and another, when, without changing the substance of the article itself, you mingle something with it, the separation of which would be troublesome.
(15) Celsus says, that it is evident that suit can be brought under the Aquilian Law where a party puts filth in wine, or spills it, or makes it sour, or spoils it in any other way; for both pouring it out and making it sour are embraced in the words "destroy".
(16) And he does not deny that "break to pieces", and "burn" are also included in the word "destroy"; but that there is nothing new where certain things are especially enumerated in the law, for it usually adds a general term including those specific things. This opinion is correct.
(17) We must, by all means, understand that the expression "break to pieces" is applicable where a party wounds a slave, or strikes him with a stick, or a strap, or with his fist, or with a weapon, or with anything else which would cut or raise a swelling upon the body of anyone, but only to the extent where wrongful damage is committed. But where the act does not diminish the value of the slave or render him less useful, the Lex Aquilia, is not available, and an action for injury alone can be brought; for the Lex Aquilia only applies to such injuries as have caused loss. Therefore, if the value of the slave is not diminished, but expenses have been incurred to have him made well and sound again, it is held that I am damaged to that extent; and therefore an action can be brought under the Lex Aquilia.
(18) Where anyone tears, or soils the clothes of another, he is liable, just as if he had destroyed them.
(19) Moreover, if anyone throws my millet or wheat into a river, the action under the Lex Aquilia will be sufficient.
(20) Again, where anyone mixes sand or something else with my wheat, so that it will be difficult to separate it, proceedings can be brought against him just as if he had destroyed it.
(21) If anyone should knock coins out of my hand, Sabinus is of the opinion that an action for wrongful injury will lie, if they are lost in such a way that they cannot come into anyone's possession, as for instance, where they have fallen into a river, the sea, or a sewer; but where they come into someone's possession, proceedings must be instituted for theft caused by aid and advice. This was the opinion of the ancient authorities. Sabinus says that an action in factum can also be granted.
(22) If you strike a woman with your fist or a mare receives a blow from you, and a miscarriage results, Brutus says that you are liable under the Lex Aquilia for "breaking to pieces", as it were.
(23) And also, if anyone overloads a mule, and breaks one of its limbs, the Lex Aquilia will be available.
(24) Where anyone pierces the hull of a vessel loaded with merchandise, Viviannus says that an action will lie under the Lex Aquilia for "breaking to pieces", as it were.
(25) If a party picks olives that are not ripe, or reaps grain that is not mature, or gathers grapes that are green, he will be liable under the Lex Aquilia; but if the crops have reached maturity, the Lex Aquilia will not apply; for no wrong is committed, as the party has presented you with the expenses which would have been incurred by harvesting crops of this kind; if, however, he removes what has been gathered he will be liable for theft. Octavenus says with reference to grapes, "Unless he throws the grapes on the ground, so that they are scattered".
(26) The same writer states with reference to cutting wood, that if what is cut is immature, the party will be liable under the Lex Aquilia; but if he takes it away after it is mature, he will be liable for theft, as well as for cutting trees by stealth.
(27) Where you remove mature willows in such a way as not to injure the trunks of the trees, the Lex Aquilia is not available.
(28) If anyone castrates a boy slave, and thereby renders him more valuable, Vivianus says that the Lex Aquilia does not apply, but that an action can be brought for injury, either under the Edict of the aediles, or for fourfold damages.
(29) If you entrust an artisan with a cup to be polished, and he breaks it through want of skill, he will be liable for wrongful damage; but if he does not break it through want of skill, but it had cracks which spoiled it, he will be excusable; and therefore artisans, when things of this description are entrusted to them, are generally accustomed to provide by an agreement that the work will not be at their risk; and this bars any right of action on the agreement, or under the Lex Aquilia.
(30) Where a husband gives loose pearls to his wife for her own use, and she perforates them without the consent or knowledge of her husband, in order that they may afterwards be worn upon a string, she will be liable under the Lex Aquilia, either after a divorce, or while she is still married.
(31) Where anyone breaks down or forces open the doors of my building, or demolishes the building itself, he is liable under the Lex Aquilia.
(32) Where anyone demolishes my aqueduct, although the materials of which it was composed are my property, still, because the land through which I bring the water is not mine, the better opinion is to say that a praetorian action should be granted.
(33) Where a stone falls from a wagon and destroys or breaks anything, it is held that the driver of the wagon is liable to an action under the Lex Aquilia, if he loaded the stones insecurely and for that reason they slipped off.
(34) Where anyone employs a slave to lead a mule, and places the mule in his care; and he ties the strap of the halter to his thumb, and the mule breaks loose and tears off the thumb of the slave, and then precipitates itself from a height; Mela says, that if a slave who was unskillful was hired as being skillful, an action can be brought against the owner of the slave on account of the mule which was destroyed, or disabled; but if the mule was excited by a blow, or by fright, the owner, (that is to say, the owner of the mule as well as the owner of the slave) will be entitled to an action under the Lex Aquilia, against the person who frightened the mule. It seems to me, however, that even in a case where an action on contract will lie, one also can be brought under the Lex Aquilia.
(35) Moreover, if you entrust a vat full of wine to be repaired by a plasterer, and he breaks a hole in it so that the wine runs out, Labeo says that an action in factum will lie.
28. Paulus, On Sabinus, Book X.
Where persons dig pits for the purpose of catching bears or deer, and do this on the highway, and anything falls into them and is injured, they will be liable under the Lex Aquilia; but they will not be liable if they dug the pits in some other place where this is ordinarily done.
(1) This action, however, should only be brought where proper cause is shown; that is to say, where no notice was given, and the owner had no knowledge, and could not provide against the accident. And indeed, a great many instances of this kind are encountered, in which a plaintiff is barred if he could have avoided the danger;
29. Ulpianus, On the Edict, Book XVIII.
Just as if you set traps in a place where you have no right to set them, and the cattle of a neighbor are caught in them.
(1) If you cut off my roof which I have permitted to project over your house without any right; Proculus states that I am entitled to an action against you for wrongful damage, as you should have sued me, alleging that I had no right to have a projecting roof; and it is not just that I should suffer damage through your cutting off my timbers. A contrary rule is to be found in a Rescript of the Emperor Severus, who stated in said Rescript to a party through whose house an aqueduct was carried without any servitude existing, that he had a right to destroy it himself; and this seems reasonable, for the difference is that in one instance a man built the roof on land which belonged to him and in the other, the party built the aqueduct on the premises of someone else.
(2) If your ship collides with my boat and I am damaged, the question arises what action shall I be entitled to? Proculus says that if it was in the power of the sailors to prevent the accident, and it occurred through their negligence, an action can be brought against them under the Lex Aquilia, because it makes but little difference whether you cause damage by driving the ship at the boat, or by steering towards the ship, or inflict the injury with your own hands; as in all these ways I sustain damage through your agency, but where the ship ran against the boat on account of a broken rope, or because there was no one to steer it, an action cannot be brought against the owner.
(3) Labeo also says, that where a ship is impelled by the force of the wind against cables attached to the anchors of another ship, and the sailors cut the cables; and the ship cannot be extricated in any other way but by cutting the cables, no action should be granted. Labeo and Proculus are of the same opinion with reference to the nets of fishermen in which a vessel belonging to others had become entangled; and it is evident that if this took place through the negligence of the sailors, an action under the Lex Aquilia should be brought. Where, however, suit is brought for wrongful damage to the nets, no estimate should be taken of the fish which were not caught on this account; since it is uncertain whether any would have been caught. The same rule is adopted in the case of hunters, and bird-catchers.
(4) If one ship collides with another approaching in the opposite direction, an action on the ground of wrongful damage will lie either against the steersman or the captain, so Alfenus says. Where, however, the ship was driven with too much force to be controlled, no action can be granted against the owner; still if the trouble occurred through the negligence of the sailors, I think that an action under the Lex Aquilia would be sufficient.
(5) Where anyone cuts a cable by which a vessel is secured, and the vessel is lost in consequence, an action in factum will lie.
(6) Under this Section of the law proceedings can be instituted by this action for the injury of any animals which are not classed as cattle, for instance, a dog; and the same rule will apply with respect to a wild boar, or lion, and other wild beasts and birds.
(7) Municipal magistrates who have committed wrongful damage can be held liable under the Lex Aquilia; for where any of them has taken cattle of yours in execution, and allows them to die of hunger, by not permitting you to give them food an action in factum should be granted. Moreover, where he thinks that he is levying an execution in accordance with law, but does not actually do so, and restores the property worn out and ruined, it is held that the Lex Aquilia will apply; and this, indeed, can also be stated where the execution was levied in compliance with the law. Where, however, a magistrate committed violence against a party who was resisting, he would not be liable under the Lex Aquilia, for when one took a slave in execution and the latter hanged himself, no action was granted.
(8) The words, "Whatever was the value during the last thirty days", although the greatest value is not expressly stated, still it is established that this should be understood.
30. Paulus, On the Edict, Book XXII.
Where anyone kills the slave of another who is caught in adultery he will not be liable under this law.
(1) Where a slave given by way of pledge was afterwards killed, an action will lie in favor of the debtor, whether the creditor is entitled to a praetorian action on account of his interest in the slave, for the reason that the debtor is not solvent; or because he has lost his right of action by lapse of time, is a question. But it is unjust that the party should be liable to both the owner and the creditor, unless someone might hold that the debtor, in this instance, had not sustained any injury, since he had profited to the amount of the debt, and anything above that amount he could recover from the creditor; or, in the beginning, an action will be granted to the debtor for any amount in excess of the debt. Hence, in those instances in which an action should be granted to the creditor on account of the poverty of the debtor, or because he has lost his right of action, the creditor will be entitled to bring suit under the Lex Aquilia for the amount of the debt, and this will benefit the debtor to that extent; and an action under the Lex Aquilia will lie in favor of the debtor for the amount of legal damages over and above the debt.
(2) Where anyone consumes wine or grain belonging to another he is not held to have committed wrongful damage; and therefore a praetorian action should be granted.
(3) In the action which arises out of this Section, malice and negligence are punished. Therefore, where anyone sets fire to his stubble or thorns for the purpose of burning them, and the fire increases and spreads so as to injure the wheat or vines of another; we must ask whether this happened through his want of skill, or his negligence; for if he did this on a windy day he is guilty of negligence, as a person who affords an opportunity for the commission of damage is considered to have caused it; and he is equally guilty if he did not take precautions to prevent the fire from spreading. If, however, he took all necessary precautions, or a sudden, violent gust of wind caused the fire to spread, he is not guilty of negligence.
(4) Where a slave is wounded but not mortally, and dies from neglect, an action can be brought for wounding, but not for killing him.
31. The Same, On Sabinus, Book X.
Where a trimmer of trees throws down a branch, or a man working on an elevation kills a passer-by, he is only liable where he threw down the object in a public place, and did not give warning, that the accident might be avoided. Mucius, however, states that even if this happened on private property, an action could be brought for negligence; because it is negligence when provision was not made by taking such precautions as a diligent man would have done, or warning was only given when the danger could not have been avoided. On this principle it does not make much difference whether the party injured was traversing public or private ground, since it very frequently happens that many persons go through private ground. If there is no roadway there, the party is only liable for malice where he throws something down on anyone who is passing by; for he cannot be held accountable for negligence, as he would be unable to conjecture whether anyone is going to pass through that place or not.
32. Gaius, On the Provincial Edict, Book VII.
This question has been asked, namely: whether the same rule should be observed in an action for wrongful damage which is adopted by the Proconsul in the case of theft committed by a number of slaves ; that is to say, whether the right to the collection of the penalty should not be granted with reference to every individual slave ; but it will be sufficient for the amount to be made good which would have to be paid if a single freeman had committed the theft. The better opinion seems to be that the same rule should be observed, and there is reason in this; for, as the principle which applies in an action for theft is that an owner should not be deprived of his entire body of slaves on account of one offence; the same principle should, in like manner, apply where an action is brought for wrongful damage, and the same kind of valuation should be made, especially since sometimes in an instance of this kind the offence is not of a serious character; for example, where the damage was committed through negligence and not through malice.
(1) Where the same person wounds a slave and then afterwards kills him, he is liable for both wounding and killing him; for there are two offences. It is otherwise where anyone in the same attack kills a slave by inflicting many wounds; for then only one action, that for killing him, can be brought.
33. Paulus, On Plautius, Book II.
If you kill my slave, I do not think that my affection for him should be considered; as, for instance, if anyone should kill your natural son whom you would be willing to purchase at a high price if he belonged to someone else; but the question involved is what is he worth generally speaking? Sextus Pedius says that the price of property is not fixed by affection or by beneficial interest, but on general principles; so that a man who has possession of his natural son as a slave, is none the more wealthy because if someone else had possession of him he would be willing to purchase him for a considerable sum of money; and the party who has possession of the son of another has not property enough to be equal to what he could sell that son for to his father; for under the Lex Aquilia, we can recover damages, and we will be considered to have lost either what we could have obtained, or what we were compelled to pay out.
(1) An action in factum is granted with reference to damages which are not included in the Lex Aquilia.
34. Marcellus, Digest, Book XXI.
A party bequeathed Stichus to Titius and Seius, and while Seius was deliberating and after Titius had brought suit to recover the legacy, Stichus was killed, and then Seius rejected the legacy. In this instance Titius can bring an action just as if the legacy had been bequeathed to him alone.
35. Ulpianus, On the Edict, Book XVIII.
For the reason that the ownership is held to have accrued to him retroactively;
36. Marcellus, Digest, Book XXI.
For as where an heir is entitled to an action when a legatee rejects a legacy, just as if the slave had not been bequeathed; so Titius has a right of action, just as if the slave had been left to him alone.
(1) Where the owner of a slave, whom Titius mortally wounded, orders by his will that he shall be free and become his heir, and subsequently Maevius becomes the heir to the slave, Maevius will not be entitled to an action under the Lex Aquilia against Titius, according to the opinion of Sabinus, who held that the right of action was not transmitted to the heir where the deceased would not have been entitled to the right; but it would truly seem to be absurd that an heir should obtain damages to the value of the person killed, and whose heir he was. Where, however, the owner ordered that he should be free and also be his heir to a part of his estate, then, when he died, his co-heir can bring an action under the Lex Aquilia.
37. Javolenus, On Cassius, Book XIV.
Where a freeman committed an injury with his own hands by order of another, an action under the Lex Aquilia can be brought against the party who gave the order; provided he had the right of commanding; but if he did not have it, proceedings must be instituted against the party who committed the act.
(1) Where a quadruped, on account of which a right of action exists against its owner because it has committed damage, is killed by another party against whom suit is then brought under the Lex Aquilia, the estimation of the value of said animal must be made, not with reference to what it is actually worth, but to the circumstances under which the right of action for damages exists; and the party who killed the animal must have judgment rendered against him in a suit under the Lex Aquilia to the amount of the interest the plaintiff had to settle the case through surrendering the animal by way of reparation, rather than by paying the damages which have been estimated.
38. The Same, Epistles, Book IX.
If at the time when my slave whom you purchased in good faith is serving you, he is wounded by one of your slaves; it has been held that I have, in every instance, a right to institute proceedings against you under the Lex Aquilia.
39. Pomponius, On Quintus Mucius, Book XVII.
Quintus Mucius says that while a mare was pasturing on the land of another she lost her foal, when the owner of the land was driving her away; and the question was asked whether or not the owner of the mare could proceed under the Lex Aquilia against the party who had driven her away, because he had injured the mare by striking her? And it was held that if he struck her, or designedly drove her away with too much violence, he can bring suit.
(1) Pomponius. Even though anyone should find the cattle of another on his own land, he must drive them away in the same manner as he would his own; since, if he has sustained any damage on account of their being there he has a suitable right of action. Therefore, where anyone finds the cattle of another on his own premises, he cannot lawfully shut them up, nor should he drive them away in any other manner than if they were his own (as we stated above) but he must either drive them away without injuring them, or notify the owner to remove them.
40. Paulus, On the Edict, Book III.
Under the Lex Aquilia, if I allege that a note belonging to me, and in which it was stated that a sum of money was owing to me under a condition, has been defaced; and, in the meantime, I am able to prove this by witnesses who may be unable to testify at the time when the condition is fulfilled, and I state the facts in a few words in court and establish this to the satisfaction of the judge, I ought to succeed; but the payment of the sum for which judgment is rendered can only take place when the condition upon which the debt depended shall be complied with; and if it should fail, the judgment will have no force or effect.
41. Ulpianus, On Sabinus, Book XLI.
Where anyone defaces a will, let us consider whether an action for wrongful damage will not lie? Marcellus states with some hesitation in the Fifth Book of the Digest, that the action cannot be brought; for he asks in what way can the amount of damages be ascertained? I made a note on Marcellus that this is indeed true with reference to the testator, because no estimate can be made of his interest in the matter; but with reference to the heir or legatees the case is different, since, so far as they are concerned, a will is almost the same as a written acknowledgment of a debt; and Marcellus also says that where a promissory note is defaced by erasure, an action under the Lex Aquilia will lie. Moreover, if anyone should destroy a will deposited with him, or should read the same in the presence of several persons, it is more advisable for an action in factum — and for injury as well — to be brought if the party published the secret provisions of the will for the purpose of committing a wrong.
(1) Pomponius very properly states that it sometimes happens that a party by destroying a will does not become liable for theft, but only for the commission of injury, for instance where he did not destroy it with the intention of committing a theft, but only to cause damage; for then he will not be liable for theft, since theft involves not only the act of stealing but the intention also.
42. Julianus, Digest, Book XLVIII.
Where anyone so defaces a will which has been deposited with him (or any other instrument for the conveyance of property) so that it cannot be read, he will be liable to an action on deposit, and also to one for the production of an instrument in court, because he either returned or produced the document in a ruined condition. An action under the Lex Aquilia will also lie in a case of this kind, for where a party falsifies documents, he is very properly said to have ruined them.
43. Pomponius, On Sabinus, Book XIX.
You are entitled to an action under the Lex Aquilia on account of damage committed against an estate before you entered upon it as heir, even though this took place after the death of the party whose heir you are; for the Lex Aquilia designates as owner not merely the person who was so at the time when the damage was committed; for under these circumstances the right of action could not pass to him from the party whose heir he was, since this would be the same case as where you have been in the power of the enemy and, having returned, can not bring suit under the right of postliminium for what had taken place during your captivity; and no other rule than this can be established without great disadvantage to posthumous children who become the heirs of their parents. We hold that the same rule applies with reference to trees which have been cut by stealth during the same time. I am of the opinion that this also applies to the proceeding Quod vi aut clam, provided the party committed the act after he had been notified not to do so, or it is apparent that he should have known that he would have been notified by the parties to whom the estate belonged if they had been aware of what he was going to do.
44. Ulpianus, On Sabinus, Book XLII.
Under the Lex Aquilia the slightest negligence is taken in consideration.
(1) Whenever a slave wounds or kills anyone, there is no doubt that his owner is liable under the Lex Aquilia.
45. Paulus, On Sabinus, Book X.
In this instance we understand knowledge to signify sufferance, so that where the party is able to prevent the act, and does not do so, he will be liable.
(1) Proceedings can be brought under the Lex Aquilia where a wounded slave is cured.
(2) If you kill my slave being under the impression that he is free, you will be liable under the Lex Aquilia.
(3) Where two slaves leap over burning straw and collide with one another, and both fall and one is burned to death; in this instance an action cannot be brought where it is not known which of them was overthrown by the other.
(4) Where parties commit damage because they could not otherwise protect themselves, they are guiltless; for all laws and all legal principles permit persons to repel force by force. But if I throw a stone at an adversary for the purpose of defending myself, and I do not hit him but do hit a passer-by, I will be liable under the Lex Aquilia; for you are only permitted to strike a person who is attacking you, and this solely where you do so in defending yourself, and not where it is done for the purpose of revenge.
(5) Where a party removes a wall which is useful, he is liable to the owner of the same for wrongful damage.
46. Ulpianus, On Sabinus, Book L.
If, where a slave is wounded, an action is brought under the Lex Aquilia, and the slave afterwards dies of the wound, an action can still be brought under the Lex Aquilia.
47. Julianus, Digest, Book LXXXVI.
But if in the first suit an estimate of his value was made, and afterwards the slave should die, his owner can bring an action for killing him, and if he is met with an exception based on malicious fraud, measures should be taken to prevent the plaintiff from recovering more by both suits than he would have obtained if he had in the beginning brought an action for killing the slave.
48. Paulus, On the Edict, Book XXXIX.
If a slave should commit damage to an estate before it had been entered upon, and, after having been liberated, he should cause other damage to the property, he will be liable to both actions, because these things have reference to two different acts.
49. Ulpianus, Disputations, Book IX.
Where anyone drives away bees belonging to another or even kills them by means of making smoke, he is held rather to have furnished the cause of their death than to have actually killed them, and therefore he will be liable to an action in factum.
(1) Where it is stated that wrongful damage can be prosecuted under the Lex Aquilia, this must be understood to mean that wrongful damage was committed when wrong was done together with damage, unless the act was committed under the compulsion of overpowering force; as Celsus states with reference to a party who destroyed an adjoining house for the purpose of controlling a fire; for in this instance he says that no action will lie under the Lex Aquilia, because the man destroyed the adjoining house being impelled by a just apprehension that the fire might reach his premises, and whether the fire did so or whether it was previously extinguished, he thinks that an action under the Lex Aquilia cannot be brought.
50. The Same, Opinions, Book VI.
Where a party demolishes the house of another without the consent of the owner, and builds baths on the site, then, irrespective of natural law, which declares that the surface belongs to the owner of the soil, the aggressor will be liable to an action on account of damage caused.
51. Julianus, Digest, Book LXXXVI.
A slave was so seriously wounded that it was certain that he would die from the blow; but, in the meantime, he was appointed an heir, and afterwards died from a blow inflicted by another. I ask whether an action for causing his death can be brought under the Lex Aquilia against both the parties who injured him? The answer was that anyone is ordinarily said to have killed who in any way furnished the cause of death; but under the Lex Aquilia he alone is held to be liable who furnished the cause of death by actual violence, and, as it were, with his own hand, the interpretation of the word "occidere" being derived from the terms "caedere" and "caedes". Moreover, not only those who have wounded a slave so badly as to immediately deprive him of life are held to be liable under the Lex Aquilia, but also those who have inflicted such a wound that it is certain that the slave will die hereafter. Therefore, where anyone inflicts a mortal wound upon a slave, and another, before his death, strikes him in such a way that he dies sooner than he otherwise would as the result of a first wound, it should be held that both offenders are liable under the Lex Aquilia.
(1) This agrees with the opinion of the ancient authorities, who, where a slave was badly wounded by several persons and it was not ascertained by whose blow he died; it has been decided that all of them are liable under the Lex Aquilia.
(2) The damages for causing death will not be the same for both parties in this instance; for the one who first wounded him must pay an amount equal to the greatest value of the slave during the past year; and this is ascertained by computing three hundred and sixty five days from the date of the wound. The second one would be liable for an amount equal to the largest sum which the slave would have brought during the year before the day on which he died, and this will also include the value of the estate. Hence one of them will pay a larger amount and the other a smaller amount for having killed the same slave; and there is nothing surprising in this, since both parties are held to have killed the slave in different ways and at different times. If anyone should think that this decision of ours is absurd, let him reflect that it would be still more absurd for it to be held that neither of the parties was liable under the Lex Aquilia, or that one of them was more liable than the other; since offences must not go unpunished; nor is it easy to determine which one is more liable under the law. For numerous rules have been established by the Civil Law for the public welfare which are at variance with the principles of reasoning, as can be proved by innumerable examples; and I shall be content with referring to only one of them. Where several persons carry away a beam belonging to another with the intention of stealing it, which they could not have done singly, they are all held to be liable to an action for theft; although by an ingenious argument not one of them can be said to be liable because it is true that not one of them carried off the beam.
52. Alfenus, Digest, Book II.
Where a slave dies from the effect of blows, and this is not the result of the ignorance of a physician or of the neglect of the owner, an action for injury can be brought for his death.
(1) The keeper of a shop placed his lantern on a stone in a street at night, and a passer-by took it away; the shopkeeper followed him and demanded the lantern, and detained the party as he was trying to escape. The latter began to strike the shopkeeper with a whip which he held in his hand and to which an iron was attached, in order to compel him to release his hold. The struggle having become more serious, the shopkeeper knocked out the eye of the party who had taken away his lantern, and he asked for an opinion whether he could not be considered not to have inflicted unlawful damage, as he had been first struck with a whip? I answered that unless he had knocked out his eye designedly he would not be considered to have caused unlawful damage, because the party who first struck him with the whip was to blame; but if he had not first been beaten, but had fought with the party who is trying to take the lantern from him, the shopkeeper must be held to be responsible for the act.
(2) Mules were hauling two loaded wagons up the Capitoline Hill, and the drivers were pushing the first wagon which was inclined to one side in order that the mules might haul it more easily; in the meantime the upper wagon began to go back, and as the drivers were between the two wagons they withdrew, and the last wagon was struck by the first and moved back, crushing a slave boy who belonged to someone. The owner of the boy asked me against whom he ought to bring an action? I answered that it depended upon circumstances, for if the drivers who had hold of the first wagon voluntarily got out of the way, and the result was that the mules could not hold the wagon and were pulled back by its weight, then no action would lie against the owner of the mules, but an action under the Lex Aquilia could be brought against the men who had hold of the wagon; for if a party, while he was supporting something, by voluntarily releasing his hold enabled it to strike someone, he, nevertheless, committed damage; as for instance, where anyone was driving an ass and did not restrain it; or where anyone were to discharge a weapon, or throw some other object out of his hand. But if the mules gave way because they were frightened, and the drivers, actuated by fear of being crushed, released their hold on the wagon, then no action can be brought against the men but one could be brought against the owner of the mules. And if neither the mules nor the men were the cause of the accident, but the mules could not hold the load, or while striving to do so slipped and fell, and this caused the wagon to go back, and the men were unable to support the weight when the wagon was inclined to one side, then no action could be brought either against the owner of the mules or the men. This, however, is certain, that no matter what the circumstances were, no action would lie against the owner of the mules which were in the rear, as they did not go back voluntarily, but because they were struck.
(3) A certain man sold some oxen under the condition that he would permit the purchaser to try them, and he afterwards delivered them to be tried; and a slave of the purchaser while trying them was struck with the horn of one of the oxen. The question arose whether the vendor must pay damages to the purchaser? I answered that if the purchaser held the oxen as already purchased, he would not be compelled to pay; but if he had not obtained them with that understanding, then, if through the slave's negligence he was wounded by the ox, damages would not have to be paid, but if it was due to the viciousness of the ox, they would be.
(4) Where several persons were playing ball, one of them pushed a small slave while he was trying to pick up the ball, and the slave fell and broke his leg. The question arose whether the owner of the slave could bring suit under the Lex Aquilia against the party who, by pushing him, had caused him to fall. I answered that he could not, as this seemed to have been done rather through accident than through negligence.
53. Neratius, Parchments, Book I.
You drove oxen belonging to another into a narrow place which caused them to be thrown to the ground and injured. An action resembling that brought under the Lex Aquilia will be granted against you.
54. Papinianus, Questions, Book XXXVII.
A debtor is entitled to an action under the Lex Aquilia where a party who stipulated for delivery, and before default of the debtor, wounds the animal which was promised; and the same rule applies if he should kill it. But where the party who stipulated kills the animal after the default of the promisor, the debtor will undoubtedly be discharged; but in this instance he will not have a right to institute proceedings under the Lex Aquilia, since the creditor must be held rather to have injured himself rather than another.
55. Paulus, Questions, Book XXII.
I promised Titius to give him either Stichus or Pamphilus, Stichus being worth ten thousand sesterces and Pamphilus twenty; and the stipulator killed Stichus before I was in default. The question arose as to whether an action could be brought under the Lex Aquilia? I answered that as it has been stated that the least valuable slave has been killed, what is to be discussed in this case does not in any way differ from that between a creditor and a stranger. What then will be the measure of damages? Must it be ten thousand sesterces which is the value of the slave that was killed, or must it be the amount which I must pay, that is the amount of my interest? And what shall we say if Pamphilus were to die without any default on my part? Will the price of Stichus be diminished since the promisor is discharged? It will be sufficient to state that the value of the slave was greater when he was killed, or within the year. On this principle Stichus must be considered to have been worth more, even if he were killed after the death of Pamphilus, but within the year.
56. The Same, Sentences, Book II.
If a woman damages the property of her husband, an action can be brought against her according to the terms of the Lex Aquilia.
57. Javolenus, On the Last Works of Labeo, Book VI.
you a horse and while you were riding it several others were riding
with you, and one of them ran against your horse and threw you off,
and the legs of your horse were broken in consequence of the accident.
Labeo states that no action can be brought against you, but if the
accident took place through the negligence of the rider he can be
sued, but suit cannot be brought against the owners of the horse;
and I think this is correct.
Tit. 3. Concerning those who pour anything out or throw anything down.
The Praetor 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".
(1) No one will deny that this Edict of the Praetor 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.
(2) It makes, however, very little difference whether the place is public or private, so long as persons ordinarily pass there; because the Praetor 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.
(3) Where 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.
(4) This 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.
(5) Where 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.
(6) There 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.
(7) Where 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.
(8) Where 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.
(9) We 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.
(10) Where several persons occupy the same room and something is thrown down from it, this action will be granted against any one of them;
2. Gaius, On the Provincial Edict, Book VI.
(Since it is absolutely impossible to know which of them threw it down or poured it out) :
3. 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:
4. Paulus, On the Edict, Book XIX.
If the money has not been received on joinder of issue, the others will be compelled by a partnership or by an equitable action to pay their shares to the party who has made the settlement.
5. 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.
(1) Where 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.
(2) Sometimes, however, when no disadvantage results to the plaintiff, the Praetor, 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.
(3) Where 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.
(4) Where, 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.
(5) This 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.
(6) The Praetor 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."
(7) This provision is a part of the Edict previously referred to; for it was only consistent that the Praetor 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.
(8) The Praetor 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.
(10) A 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.
(11) The Praetor says, "If it can injure anyone by its fall." It is manifest from these words that the Praetor 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.
(12) Where 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.
(13) This 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.
6. Paulus, On the Edict, Book XIX.
This Edict is not limited to cities and villages, but also has reference to all roads along which persons ordinarily pass.
(1) Labeo says that this Edict only applies where an object is thrown down in the daytime, and not at night; still, in certain places people also pass at night.
(2) A person who occupies the premises is also responsible for the negligence of his family.
(3) Where anything is thrown out of a ship, an equitable action will be granted against the party in charge of the ship.
7. Gaius, On the Provincial Edict, Book VI.
the body of a freeman has been injured by something which has been
thrown down or poured out, the judge must take into consideration
the fees paid to a physician, and the other expenses incurred by the
cure of the individual, as well as the value of any occupation which
the party lost, or is liable to lose on account of having been disabled;
but no estimate will be made of scars or of any other disfigurement,
because the body of a freeman does not admit of appraisement.
Tit. 4. Concerning noxal actions.
Those actions are called noxal which are brought against us, not with reference to any contract, but as the result of some injury or delinquency committed by slaves; and the force and effect of such actions is that, if judgment is rendered against us, we can avoid the payment of damages by the surrender of the body of him who committed the offence.
2. Ulpianus, On the Edict, Book XVIII.
Where a slave kills anyone with the knowledge of his owner, he renders the latter liable for the full amount of damages, for it is held that the owner himself committed the homicide; but where this was done without the owner's knowledge, a noxal action will lie, as the owner should not be held liable, on account of the offence of the slave, for any more than to surrender him by way of reparation.
(1) Where he did nothing to prevent the crime, whether he remains the owner or ceases to be such, he will be liable to this action; for it is sufficient if he was the owner at the time when he did not prevent the act; and to such an extent is this the case, that Celsus thinks if the slave should be alienated in whole or in part or manumitted, the damage does not follow the person, for the slave did not commit any offence, as he obeyed his owner's orders. And this may be truly said, if the latter did order him, but if he only did not prevent him, how can we excuse the act of the slave? Celsus, however, makes a distinction between the Lex Aquilia and the Law of the Twelve Tables, for, under the ancient law, if a slave committed a theft or caused any other damage with the knowledge of his owner, a noxal action would lie on account of the slave, and the owner would not be directly liable; but he says that under the Lex Aquilia the owner would be directly liable, and not liable on account of the slave. He then states the principle of each of the two laws; the intention of that of the Twelve Tables being that, in an instance of this kind, slaves should not obey their masters, but in the case of the Lex Aquilia the law excused a slave who obeyed his master, as he would have been put to death if he had not done so. But if we consider as established what Julianus states in the Eighty-sixth Book, that, "Where a slave commits a theft or causes some injury," this has also reference to more recent laws; it may be said that a noxal action can be granted against the owner on account of his slave; so that because an Aquilian action is granted against the owner this does not excuse the slave, but is a burden to the owner. We approve of the opinion of Julianus, which is reasonable, and is supported by Marcellus as is stated by Julianus.
3. The Same, On the Edict, Book III.
In all noxal actions where the knowledge of the owner is required, this must be understood to mean that the owner could have been able to prevent the wrong but did not do so; for it is one thing to cause a slave to commit an offence, and another to suffer him to do so.
4. Paulus, On the Edict, Book III.
With reference to the offences of slaves what are we to understand by the "Knowledge of the owner"? Does it mean that the act was done by his advice, or that he merely saw it done, although he could not prevent it? For suppose that a slave who was taking measures to obtain his freedom commits the act, with the knowledge of his owner, or pays no attention to his owner; or suppose that the slave is on the opposite side of a river and commits an injury while his master sees him, but does it contrary to his will? It is better, however, to say that we must understand the term "knowledge" to signify that a party is able to prevent the deed, and this must be understood through the entire Edict so far as the term "knowledge" is concerned.
(1) Where a slave belonging to a stranger commits an illegal act with my knowledge, and I purchase him; a noxal action will be granted against me, because it cannot be held that he acted with the knowledge of his owner as at that time I was not his owner.
(2) Where an owner is liable on account of his knowledge, it should be considered whether an action should be granted also with reference to the slave; unless the Praetor intended that a single penalty only should be exacted from the owner. Therefore should the malice of the slave be unpunished? This would be unjust, for indeed the owner is liable in both ways, still when one penalty, that is, whichever one the plaintiff selects, is exacted, the other cannot be collected.
(3) If the surrender of the slave by way of reparation is not mentioned, and proceedings are brought against the owner on account of his being aware of the offence, when, as a matter of fact, he was not aware of it, and the case is dismissed and the trial terminated; the plaintiff will be barred by an exception on the ground of res judicata, if he attempts to proceed further in order to obtain the surrender of the slave; for the reason that the matter was previously brought to an issue in the former trial and is now at an end. But, while the first trial is proceeding, the plaintiff has the right to change his mind, if he is attempting to prove the knowledge of the owner, and have recourse to a noxal action. On the other hand also, if he has proceeded with the noxal action against the party who had knowledge, no other action will be granted him against the owner if he left out the surrender of the slave by way of reparation; but if, during the trial, he still wishes to prove the knowledge of the owner, he cannot be prevented from doing so.
5. Ulpianus, On the Edict, Book V.
Where a slave belonging to several persons commits an offence of which they are all ignorant, a noxal action will be granted against any one of them. But if they were all aware of it, any one of them will be liable without consideration of the surrender of the slave by way of reparation, just as if they had all committed the offence; nor will one of them be liberated if the other should be sued. Still, where one of the owners knew and the other was ignorant of the fact, the one who knew will be sued without the surrender of the slave being considered, and the one who did not know will be sued with the right to surrender him.
(1) The difference between these two proceedings is not merely that the owner who knows is liable for the entire amount, but also that if he who knows should sell the slave or manumit him, and the slave should die, the said owner will be liable; but if the owner himself should die, his heir will not be liable.
6. The Same, On the Edict, Book XVIII.
But the slave himself, if manumitted, will also be liable.
7. The Same, On the Edict, Book III.
A noxal action, however, is not granted unless the slave is under my control, and if he is, although he was not under my control at the time he committed the offence, I will be liable, and my heir will be liable, if the offending slave was living.
(1) Pomponius says that if a purchaser of the slave is sued in a noxal action, the vendor who had knowledge of the act can no longer be sued.
8. The Same, On the Edict, Book XXXVII.
Where a slave owned in common commits a theft, any one of his masters is liable to a noxal action for the entire amount, and this is the rule at the present time. But the party against whom suit is brought cannot avoid payment of the damages unless he surrenders the slave entirely; for if he should be ready to surrender only a share in him, this will not be tolerated. It is evident that if, on account of this, the other owners are not prepared to surrender the slave, he should then be required to pay the entire amount, and he can institute proceedings against the other owner in partition, or for a division of the interest in the slave. He can, however, before issue is joined in the noxal action, obtain immunity by surrendering his share in the slave so that it will not be necessary for him to make a defence; although someone may state that it might happen where a share in said slave is transferred to the party he loses his right of action; for when he becomes the owner of a share he cannot institute proceedings against a joint-owner by means of a noxal action; and perhaps he could not bring an action in partition on account of an offence which was committed before the joint-ownership began, and if he cannot do this he will evidently suffer injury. It, however, seems to me best to hold that an action for the division of common property will lie in his favor.
9. Paulus, On the Edict, Book XXXIX.
Where a number of slaves held in common, or one alone commits a theft, with the knowledge of one of his owners the latter will be liable in the name of both, and if suit is brought against him this will release the others from liability; nor can he obtain anything from his joint-owner, as he deserved the penalty on account of his own act. But where one who was ignorant of the commission of the offence pays double damages, he can recover simple damages from his joint-owner.
10. The Same, On the Edict, Book XXII.
Moreover, anyone can bring suit against his joint-owner on the ground that he has depreciated the value of the slave; just as he could against anyone else who depreciated the value of property owned in common. If, however, he held nothing in common after the surrender of the slave, he can bring an action on partnership, or if they were not partners he can bring an action in factum.
11. Ulpianus, On the Edict, Book VII.
The bona fide possessor of a slave will be liable to an action for theft on account of the slave, but the owner will not be liable. He cannot, however, by surrendering the slave make him the property of the plaintiff, and if the owner should bring suit to recover the slave, he will be barred by an exception on the ground of fraud, for the other party can be made secure by application to the court.
12. Paulus, On the Edict, Book VI.
Where a bona fide possessor dismisses a slave who was in his possession under these circumstances, in order to avoid proceedings being taken against him in a noxal action, he will be liable to the action which is granted against parties who have a slave in their power or commit fraud in order to avoid having him under their control, because in this instance they are held to be still in possession.
13. Gaius, On the Provincial Edict, Book XIII.
A noxal action is granted not only against a possessor in good faith, but also against those who have possession in bad faith; for it seems absurd that parties who are bona fide possessors should be compelled to defend an action, and that depredators should be secure.
14. Ulpianus, On the Edict, Book XVIII.
Where anyone is sued by several persons on account of an offence committed by his slave, or by one person on account of several offences, then it will not be necessary for him to tender the amount of damages assessed to those to whom he cannot surrender the slave, since he cannot surrender him to all of them. What then is the rule if he is sued by several parties? If, indeed, one of them has anticipated the others, is his position better, and shall the slave be surrendered to him alone? Or shall he be surrendered to all of them, or must the defendant furnish security that he will defend his adversary against the other parties? It is the better opinion that the position of the party who has anticipated the others is preferable. Therefore the slave should be surrendered, not to the plaintiff who first instituted proceedings, but to the one who first obtained judgment; and hence an action to enforce the judgment will be refused to a party who gains his case subsequently.
(1) If a slave is entitled to his freedom conditionally, and the condition is fulfilled before the surrender; or if he should obtain his freedom under the terms of a trust, or a condition is complied with in accordance with which the ownership of the slave was bequeathed as a legacy and transferred, the defendant must be discharged by an order of court; and it is part of the duty of the judge to provide that the party to whom he is surrendered shall give security against the recovery of the slave by eviction on account of an act of the defendant.
15. Gaius, On the Provincial Edict, Book VI.
The Praetor should order the action to be transferred so as to be conducted against the said former slave, but if, at the time of the trial, the freedom of the slave is still in suspense, Sabinus and Cassius are of the opinion that the heir is released from liability by giving up the slave, since he has thereby assigned all of his own rights; and this is true.
16. Julianus, Digest, Book XXII.
If the heir, through malicious fraud, should relinquish his authority over said slave, and by reason of this should join issue in an action not permitting the noxal surrender of the slave, judgment should be rendered against him, just as if the slave was dead; even if the condition on which the slave was entitled to his freedom should have been fulfilled.
17. Paulus, On the Edict, Book XXII.
Where a slave who belongs to two owners commits an offence with the knowledge of one of them but without that of the other, if suit is brought against the one who is ignorant of the fact and he surrenders the slave by way of reparation, it is unjust that by the surrender of a worthless slave the other owner should be free from liability; hence suit can be brought against the latter also, and if in the attempt to collect damages anything more is obtained, the plaintiff will be entitled to it after calculation of the value of the slave surrendered has been made. The joint-owners, however, should divide their claims in an action for the division of common property in such a way that if the one who had knowledge of the act should make payment, he will not be entitled to a portion of all of it, but to a portion of the amount that the slave was worth; and if the other paid anything, he will be entitled to credit for his share. It is not just that the owner who ordered the slave to commit the offence should obtain anything from his fellow-owner, since the loss that he sustains is the result of his own misconduct.
(1) Where several persons wish to bring a noxal action against me on account of the same slave, or one party brings suit in several actions with reference to the same slave, he being one in whom you have an usufruct and I the mere ownership, it is part of the duty of the judge, when I surrender the slave by way of reparation, to provide that I transfer to the plaintiff the usufruct in him also; but I, as the mere proprietor, can apply to the Praetor to have him compel you to contribute to the estimated damages in proportion to the value of the usufruct, or to assign the usufruct, if this is more expedient. But if I, the mere owner, refuse to defend the action brought with reference to the slave, you should be permitted to defend it, and if, having lost it, you deliver the slave, you will be protected against me.
18. Pomponius, On Sabinus, Book XVIII.
A party who has an usufruct in a slave has for this reason a right of action for theft against the mere owner, just as if he were any other person, but no right of action exists against him although the slave is in his service; and therefore, if judgment is rendered against the owner, he will be discharged from liability by surrendering the slave to the usufructuary.
19. Paulus, On the Edict, Book XXII.
Where a slave of Titius does some damage to property owned by you and me in common, and we institute proceedings against Titius, a noxal action under the Lex Aquilia will lie; and if he loses the suit he will be compelled to surrender the entire slave to us separately. It may be stated, however, as in the case where both the damage and the claim for it are acquired by one person alone, either the money should be tendered to both of us, or the slave be surrendered to both of us at the same time by order of court. Nevertheless, if the slave is surrendered to either of us without division of ownership, and on this account the owner is released from liability to both of us, it is very properly held that he to whom a surrender was made is liable to the other in an action for the division of common property, to compel him to transfer a share of the slave that was surrendered, since this is something which has come into the hands of the joint-owner through property held in common.
(1) Where the mere owner of a slave leases the services of the latter in whom someone else has the usufruct, the words of the Edict indicate that if judgment is rendered against him he will have the choice of surrendering the slave by way of reparation.
(2) Where your slave has charge of a ship, and his underslave, who is also a sailor on said ship, causes some damage, an action should be granted against you, just as if the party in charge was free, and the slave belonged to him; so that you will be ordered by the court to surrender the said slave by way of reparation as part of the peculium of your slave; although if the second slave committed the damage by order of your slave or with his knowledge and sufferance, a noxal action should be brought against you on account of your slave. The result will be the same if your slave should order a sailor to commit the act.
20. Gaius, On the Provincial Edict, Book VII.
Where anyone brings several actions at different times, on account of distinct offences, and he obtains ownership of the slave on account of one of said offences, he will not be entitled to any other action against the party who was formerly the owner, since a noxal action follows the individual; but, if the owner at the time the former case was tried, preferred to pay the damages assessed, he will, nevertheless, be liable to the same plaintiff, or to anyone else, if he brings suit on the ground of some other wrong.
21. 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.
(1) Where 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.
(2) The Praetor 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."
(3) We 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.
(4) If 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.
(5) Where 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.
(6) Where 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.
22. Paulus, On the Edict, Book XVIII.
Where a slave is deposited with someone or loaned to him, a noxal action can be brought against the owner, for the slave is understood to still serve him, and as far as relates to this Edict, he is in his power; and especially is this the case if he has the means of recovering him.
(1) He who has received a slave in pledge or holds him by sufferance of his owner is not liable in a noxal action, for even though parties may have lawful possession, nevertheless, they have not possession as owners; hence those slaves are understood to be in the power of their owner, if the said owner has the means of recovering them.
(2) What is the meaning of the words, "Has the means of recovering them"? It signifies that he has the money by which to release them, for he ought not to be compelled to sell his property in order to pay the money and recover the slave.
(3) Where an owner confesses that a slave is in his power he must either produce him in court or defend him, if he is absent; and if he does neither, he will be punished just as if the slave had been present and he had not surrendered him.
(4) Where the owner denies that the slave is in his power, the Praetor permits the plaintiff to choose whether he will decide the matter by means of an oath, or whether judgment shall be rendered without the surrender of the slave; by which means he will succeed if he proves that the slave is in the power of the defendant, or that he has acted fraudulently so that he may not be; but a party who does not prove that the slave is in the power of his adversary loses his case.
23. Gaius, On the Provincial Edict, Book VI.
But if his adversary should afterwards come into possession of the slave, he will be liable on account of the new possession and an exception will be denied him.
24. Paulus, On the Edict, Book XVIII.
It must be considered whether a noxal action can be brought only against the party who fraudulently managed to prevent the slave from being in his power if it should happen through his fraud that a noxal action will not be available; for instance, where he ordered his slave to take the flight; or whether an action cannot, nevertheless, be brought against some other party; which would be the case if the slave were sold or manumitted? The latter is the better opinion, as in this instance the plaintiff has the choice of proceeding against either party. Julianus, however, says that if the manumitted slave is ready to defend his case, an exception should be granted to the person who manumitted him; and this is also the opinion of Labeo.
25. Gaius, On the Provincial Edict, Book VI.
The rule is the same where the new owner of the slave is made defendant in the suit.
26. Paulus, On the Edict, Book XVIII.
The choice of one defendant releases the other; for the Praetor introduced this right to prevent the plaintiff from 6eing thwarted, and not that he might obtain any profit; and therefore he will be barred by an exception if he brings the other suit.
(1) It follows as a result that where several persons fraudulently manage to avoid having the slave in their power, the plaintiff must select which one he would rather sue.
(2) Again, if of several joint-owners, some, through malicious fraud, relinquish possession of their shares; the plaintiff has the choice as to whether he will proceed directly against the party who was in possession, or whether he will bring a praetorian action against him who has ceased to be in possession.
(3) Where a party answers in court that a slave who belongs to another is his, then, if either one should pay, the other will be discharged.
(4) If a slave of whom you have fraudulently relinquished possession dies before this action is brought against you, you will be discharged because this action takes the place of the direct one. We hold that the case is different where you are in default in joining issue.
(5) An action will not be granted to an heir, or against an heir, on the ground that the deceased stated what was false, nor against the party himself, after the lapse of an indefinite time; for anyone is free to assume the defence of an absent slave in order to avoid the penalty prescribed by this Edict, that is to say, to be sued without the right to surrender the slave by way of reparation. Therefore, if you deny that the slave is in your power, you can afterwards confess that he is, unless joinder of issue has already taken place in the case against you; for then you ought not to be heard; as Labeo says. Octavenus, however, says that you are entitled to relief even after issue has been joined, if cause is shown, at all events if your age is such that indulgence should be granted you.
(6) Where a slave is taken away during the absence of his master, or even in his presence, and matters are still in such a condition that complete restitution is possible, a defence is permitted on account of the slave that was taken away; for if a request was made for him to be produced in court for the purpose of making a defence, the Praetor ought to grant it. The same relief should be afforded an usufructuary or one to whom the slave was pledged on account of a debt, where the owner is present and refuses to make a defence, in order that the malice or negligence of one man may not injure others. The same relief must also be afforded where a slave is held in common and one of his owners, who is present, refuses to make a defence. In these instances the plaintiff is also entitled to relief because it is established that the right of action is extinguished by the acquisition of ownership; for when the slave is removed by order of the Praetor, he becomes the property of the party who led him away.
27. Gaius, On the Provincial Edict, Book VI.
Where a noxal action is brought with reference to a slave who is held by way of pledge, or with reference to one in whom another party has the usufruct; we must remember that if either the creditor or the usufructuary is present and is unwilling to undertake the defence, the Proconsul must intervene, and refuse the sale of the pledge or an action to be brought for the usufruct. In this instance it may be said that the pledge is released by operation of law, since that is no pledge upon which the money cannot be collected by suit; but an usufruct remains as a matter of right, even though an action to recover it may be refused, until the time established by law has elapsed, and it is lost by non-user.
(1) From what we have stated with reference to a slave who was held by anyone in pledge, or a slave who is to be free upon a certain condition, or one in whom another party has an usufruct; it is evident that where a defendant states in court that his slave in reality belongs to another; then, even though he is liable to a noxal action, he cannot, nevertheless, be free from liability by operation of law through the surrender of the slave by way of reparation; for as the party is not the owner he cannot transfer the ownership to the plaintiff. It is, however, certain, that where a slave has been delivered for this reason, and his owner afterwards brings suit to recover him, but does not tender the damages assessed in the case; he can be opposed by an exception on the ground of malicious fraud.
28. Africanus, Questions, Book VI.
Generally speaking, if I bring a noxal action against you on account of the slave of a third party, who is serving you in good faith, and you surrender him to me by way of reparation; and then if, while I am in possession of him, his owner brings suit to recover him, I can bar him with an exception on the ground of malicious fraud, unless he tenders the damages which have been assessed; but if the owner himself should be in possession, I am entitled to the Publician Action, and if the defendant makes use of the exception, "Unless the defendant is his owner," a replication based on malicious fraud can be interposed for my benefit. In accordance with this I can acquire ownership by use, although I am aware that I am in possession of the property of another, and, in fact, if it had been otherwise established, the result would be that a bona fide possessor would be subjected to the greatest injustice; since while, as a matter of law, he would be liable in a noxal action, the necessity is imposed upon him to submit to the payment of the damages assessed in the case. The same principle applies where no defence is made with reference to the slave, and I take him away by order of the Praetor; since, in this instance also, I have a legal ground of possession.
29. Gaius, On the Provincial Edict, Book VI.
Not only can a person who has not the slave in his power refuse to answer in a noxal action, but he is also free to avoid the action even when he has him in his power, if he leaves the person undefended; but in this instance he must transfer his right to the plaintiff, just as if judgment had been rendered against him.
30. The Same, On the Edict of the Urban Praetor, Under the Head of the "Prevention of Threatened Injury."
In noxal actions, the rights of those who are absent in good faith are not lost, but, on their return, power is given them to make a defence in accordance with what is proper and just, whether they are the owners or have some right in the property in dispute, such as creditors and usufructuaries.
31. Paulus, On Plautius, Book VII.
Where the Praetor says, "When a number of slaves commit a theft an action will only be granted to enable the plaintiff to obtain as much as he would have done if a freeman had committed the crime," the question arises whether this has reference to the payment of money as damages, or to the surrender of the slave by way of reparation; as, for instance, where double damages are collected out of the value of the slaves that have been surrendered, whether other actions will be prohibited? Sabinus and Cassius both think that the defendant should be credited with the value of the slaves surrendered. This Pomponius approves, and it is true; for if a slave is taken away because no defence was offered, the owner must receive credit for what he was worth. Julianus thinks that it is certain that an account must be taken, not only of the double damages, but also of what might be recovered by a personal action; and where theft has been committed by a number of slaves, the time when this was done must be investigated, in order to determine whether they belonged to the same band; for the Edict is not applicable where those slaves who belong to different owners afterwards becomes the property of one alone.
32. Callistratus, Monitory Edict, Book II.
Where the slave is in the power of one who is not his owner, and is said to have committed an offence, if he is not defended he will be taken away; and if his owner is present, he should deliver him up and give security against malicious fraud.
33. Pomponius, On Sabinus, Book XIV.
No one can, against his will, be forced to defend another in a noxal action, but he must be deprived of him whom he refuses to defend, if he is his slave; but where the party who is in the power of another is free, he ought to be permitted to defend himself under all circumstances :
34. Julianus, On Urseius Ferox, Book IV.
For whenever no one will undertake the defence of the son of a family on account of a breach of the law, an action is granted against him,
35. Ulpianus, On Sabinus, Book XLI.
And if judgment is rendered against the son he must comply with it, for he is held by the decision. Moreover, it must be stated that his father also is liable to an action De peculio, after judgment has been pronounced against the son.
36. The Same, On the Edict, Book XXXVII.
Where anyone purchases from a debtor a slave who has been pledged and then stolen by him, the purchaser will be liable on the ground of theft, after he has acquired the ownership of the slave; and no objection can be made that the slave can be recovered by him, by means of the Servian Action. The rule is the same where a party makes a purchase from a minor under twenty-five years of age, or knowingly for the purpose of defrauding creditors; as, although the latter can be deprived of their ownership, still, in the meantime, suit can be brought against them.
37. Tryphoninus, Disputations, Book XV.
Where a slave belonging to another steals my property and afterwards comes into my hands as owner, the right of action for theft to which I was entitled is extinguished, if it has not yet been made use of; and if I should afterwards dispose of the slave whom I bought before issue was joined, the right of action for theft will not be renewed; but if I purchase him after issue has been joined, the vendor can have judgment rendered against him:
38. Ulpianus, On the Edict, Book XXXVII.
Just as he would if he had sold him to another party, for, indeed, it makes little difference to whom he sells him, whether to his adversary or to someone else; and it will be his own fault if he has to submit to the payment of the damages assessed, since by selling him he deprived himself of the power of surrendering him by way of reparation.
(1) Julianus, however, states in the Twenty-second Book of the Digest, that if I abandon the slave who stole your property, I am released from liability, because he at once ceased to belong to me; otherwise an action for theft could be brought on account of him who has no owner.
(2) Where my slave steals your property and sells it, and you deprive him of the money in his possession which he obtained as part of the price of said property, there will be ground for an action of theft on both sides; for you can bring a noxal action of theft against me on account of the slave, and I can bring one against you on account of the money.
(3) Moreover, where I pay money to the slave of my creditor in order that he may give it to his master, there will also be ground for an action of theft, if the slave appropriates the money he received.
39. Julianus, Digest, Book IX.
Where a slave belonging to several persons commits a theft and all his owners fraudulently manage to avoid having him in their power, the Praetor ought to follow the form of the civil action, and allow the equitable action which he promises in an instance of this kind to be brought against whichever owner the plaintiff may select; and he should not afford the plaintiff any greater advantage than to enable him to bring an action, without the defendant having the right to surrender the slave by way of reparation; since he would have been able to institute proceedings in a noxal action if the slave had been produced in court.
(1) Where anyone acknowledges that a slave is his own who really belongs to another; then, although he is liable to a noxal action, nevertheless, where proper cause is shown, he can be compelled to give security; but where a party is sued on account of his own slave, he should not be burdened with security, as he is not volunteering in the defence of a slave belonging to another.
(2) Where anyone states that the owner of a slave had acted fraudulently to avoid having said slave in his possession, and the owner contends in court that the suit should be defended by someone else who would furnish security; there is ground here for an exception on the ground of malicious fraud.
(3) But if, after issue has been joined with the owner, the slave should appear, and because he was not defended is taken away; the owner will be discharged if he interposes an exception on the ground of malicious fraud.
(4) Where, however, the slave dies before issue is joined, the owner will not be held liable in this action at all.
40. The Same, Digest, Book XXII.
Where a slave is bequeathed as a legacy and steals the property of the future heir before the estate is entered upon; the heir can bring an action of theft against the legatee if he accepts the legacy. But where the same slave appropriates property which belongs to the estate, an action of theft will not lie, because there can be no theft of property of this description; but an action can be brought to compel him to produce the property in court.
41. The Same, On Urseius Ferox, Book II.
Where a slave owned in common causes unlawful damage to one of his owners, an action under the Lex Aquilia will not lie on that account; because if he had caused the damage to a stranger, an action could be brought against the other joint-owner for the entire amount under the Lex Aquilia; just as where a slave owned in common committed theft an action for theft cannot be brought against the other joint-owner, but proceedings in partition must be instituted.
42. Ulpianus, On the Edict, Book XXXVII.
Where a party, on account of whom issue has been joined in a noxal action, claims his freedom, proceedings should be stayed until his condition is determined; hence if he should be declared to be a slave, the noxal action will proceed, but if he is decided to be free it will be held to be of no effect.
(1) Where a party undertakes to defend a noxal action on account of a slave who is dead, and he is ignorant of the fact, he should be discharged from liability, because it has ceased to be true that he should surrender anything on account of said slave.
(2) These actions are not barred by lapse of time, and are available as long as we have the power of surrendering the slave; for they can be brought not only against us but also against our successors, as well as against the successors of the party liable in the first place, not because they succeed to his liability, but on the ground of ownership. Hence, if a slave has come into the hands of another party, his new owner can be sued in a noxal action on the ground of ownership.
43. Pomponius, Epistles, Book VIII.
Slaves, in cases where liability for reparation follows the individual, should be defended in the place where it is alleged that they committed the offence, and therefore the owner is obliged to produce said slaves in the place where they are said to have committed the violence and he may lose the ownership of all of them if he does not defend them.