Part 18 (2/2)
2 In order to support this action it is not necessary that the goods of which robbery has been committed should belong to the plaintiff, provided they were taken from among his property. Thus, if a thing be let, or lent, or pledged to t.i.tius, or even deposited with him under such circ.u.mstances that he has an interest in its not being carried off--for instance, by his having undertaken the entire responsibility for its safe custody;--or if he possesses it in good faith, or has a usufruct or any other right in it whereby he suffers loss or incurs liability through its being forcibly taken from him, the action will be maintainable by him; not necessarily in order to restore to him the owners.h.i.+p, but only to compensate him for what it is alleged he has lost by its being taken from his goods or withdrawn from his means. In fact, it may be said generally that where, supposing property to be taken secretly, the action of theft will lie, the action on robbery will lie at suit of the same person, if it be taken with violence.
t.i.tLE III. OF THE LEX AQUILIA
Unlawful damage is actionable under the lex Aquilia, whose first chapter provides that if a slave of another man, or a quadruped from his flocks or herds, be unlawfully killed, the offender shall pay to the owner whatever was the highest value thereof within the year next immediately preceding.
1 From the fact that this enactment does not speak of quadrupeds simply, but only of such quadrupeds as are usually included under the idea of flocks and herds, it is to be inferred that it has no application to wild animals or to dogs, but only to such beasts as can properly be said to graze in herds, namely horses, mules, a.s.ses, oxen, sheep, and goats.
It is settled, too, that swine come under its operation, for they are comprehended in 'herds' because they feed in this manner; thus Homer in his Odyssey, as quote by Aelius Marcia.n.u.s in his Inst.i.tutes, says, You will find him sitting among his swine, and they are feeding by the Rock of Corax, over against the spring Arethusa.'
2 To kill unlawfully is to kill without any right; thus a man who kills a robber is not liable to this action, if he could in no other way escape the danger by which he was threatened.
3 So, too, where one man kills another by misadventure, he is not liable under this statute, provided there is no fault or carelessness on his part; otherwise it is different, for under this statute carelessness is as punishable as wilful wrongdoing.
4 Accordingly, if a man, while playing or practising with javelins, runs your slave through as he pa.s.ses by, a distinction is drawn. If it be done by a soldier in his exercising ground, that is to say, where such practice is usually conducted, he is in no way to blame; but if it be done by some one else, his carelessness will make him liable; and so it is with the soldier, if he do it in some place other than that appropriated to military exercises.
5 So, too, if a man is tr.i.m.m.i.n.g a tree, and kills your slave as he pa.s.ses by with a bough which he lets fall, he is guilty of negligence, if it is near a public way, or a private path belonging to a neighbour, and he does not call out to give people warning; but if he calls out, and the slave takes no pains to get out of the way, he is not to blame.
Nor would such a man be liable, if he was cutting a tree far away from a road, or in the middle of a field, even if he did not call out; for strangers had no business to be there.
6 Again, if a surgeon operates on your slave, and then neglects altogether to attend to his cure, so that the slave dies in consequence, he is liable for his carelessness.
7 Sometimes, too, unskilfulness is undistinguishable from carelessness--as where a surgeon kills your slave by operating upon him unskilfully, or by giving him wrong medicines;
8 and similarly, if your slave is run over by a team of mules, which the driver has not enough skill to hold, the latter is suable for carelessness; and the case is the same if he was simply not strong enough to hold them, provided they could have been held by a stronger man. The rule also applies to runaway horses, if the running away is due to the rider's deficiency either in skill or strength.
9 The meaning of the words of the statute 'whatever was of the highest value thereof within the year' is that if any one, for instance, kills a slave of yours, who at the moment of his death is lame, or maimed, or blind of one eye, but within the year was sound and worth a price, the person who kills him is answerable not merely for his value at the time of his death, but for his highest value within the year. It is owing to this that the action under this statute is deemed to be penal, because a defendant is sometimes bound to pay a sum not merely equivalent to the damage he has done, but far in excess of it; and consequently, the right of suing under the statute does not pa.s.s against the heir, though it would have done so if the damages awarded had never exceeded the actual loss sustained by the plaintiff.
10 By juristic construction of the statute, though not so enacted in its terms, it has been settled that one must not only take account, in the way we have described, of the value of the body of the slave or animal killed, but must also consider all other loss which indirectly falls upon the plaintiff through the killing. For instance, if your slave has been inst.i.tuted somebody's heir, and, before he has by your order accepted, he is slain, the value of the inheritance you have missed must be taken into consideration; and so, too, if one of a pair of mules, or one of four chariot horses, or one of a company of slave players is killed, account is to be taken not only of what is killed, but also of the extent to which the others have been depreciated.
11 The owner whose slave is killed has the option of suing the wrongdoer for damages in a private action under the lex Aquilia, or of accusing him on a capital charge by indictment.
12 The second chapter of the lex Aquilia is now obsolete;
13 the third makes provision for all damage which is not covered by the first. Accordingly, if a slave or some quadruped which comes within its terms, is wounded, or if a quadruped which does not come within its terms, such as a dog or wild animal, is wounded or killed, an action is provided by this chapter; and if any other animal or inanimate thing is unlawfully damaged, a remedy is herein afforded; for all burning, breaking, and crus.h.i.+ng is hereby made actionable, though, indeed, the single word 'breaking' covers all these offences, denoting as it does every kind of injury, so that not only crus.h.i.+ng and burning, but any cutting, bruising, spilling, destroying, or deteriorating is hereby denominated. Finally, it has been decided that if one man mixes something with another's win or oil, so as to spoil its natural goodness, he is liable under this chapter of the statute.
14 It is obvious that, as a man is liable under the first chapter only where a slave or quadruped is killed by express design or through negligence on his part, so, too, he is answerable for all other damage under this chapter only where it results from some wilful act or carelessness of his. Under this chapter, however, it is not the highest value which the thing had within a year, but that which it had within the last thirty days, which is chargeable on the author of the mischief.
15 It is true that here the statute does not expressly say 'the highest value,' but Sabinus rightly held that the damages must be a.s.sessed as if the words 'highest value' occurred also in this chapter; the Roman people, who enacted this statute on the proposal of Aquilius the tribune, having thought it sufficient to use them in the first chapter only.
16 It is held that a direct action lies under this statute only when the body of the offender is substantially the instrument of mischief. If a man occasions loss to another in any other way, a modified action will usually lie against him; for instance, if he shuts up another man's slave or quadruped, so as to starve him or it to death, or drives his horse so hard as to knock him to pieces, or drives his cattle over a precipice, or persuades his slave to climb a tree or go down a well, who, in climbing the one or going down the other, is killed or injured in any part of his body, a modified action is in all these cases given against him. But if a slave is pushed off a bridge or bank into a river, and there drowned, it is clear from the facts that the damage is substantially done by the body of the offender, who is consequently liable directly under the lex Aquilia. If damage be done, not by the body or to a body, but in some other form, neither the direct nor the modified Aquilian action will lie, though it is held that the wrongdoer is liable to an action on the case; as, for instance, where a man is moved by pity to loose another's slave from his fetters, and so enables him to escape.
t.i.tLE IV. OF INJURIES
By injury, in a general sense, is meant anything which is done without any right. Besides this, it has three special significations; for sometimes it is used to express outrage, the proper word for which--contumely--is derived from the verb 'to contemn,' and so is equivalent to the Greek 'ubris': sometimes it means culpable negligence, as where damage is said to be done (as in the lex Aquilia) 'with injury,' where it is equivalent to the Greek 'adikema'; and sometimes iniquity and injustice, which the Greeks express by 'adikia'; thus a litigant is said to have received an 'injury' when the praetor or judge delivers an unjust judgement against him.
1 An injury or outrage is inflicted not only by striking with the first, a stick, or a whip, but also by vituperation for the purpose of collecting a crowd, or by taking possession of a man's effects on the ground that he was in one's debt; or by writing, composing, or publis.h.i.+ng defamatory prose or verse, or contriving the doing of any of these things by some one else; or by constantly following a matron, or a young boy or girl below the age of p.u.b.erty, or attempting anybody's chast.i.ty; and, in a word, by innumerable other acts.
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