either sue the murderer for the pecuniary penalty under the lex Aquilia, or he might prefer a capital charge (C. 3, 35, 3) (1).

§ 12. As to the second head of the lex Aquilia. Gaius (3. 215) tells us it gave an action against the adstipulator (B. 3, t. 19), who, in order to defraud the person to whom the promise had been made (stipulator), released the debt to the promissor, discharging him by acceptilatio (pecuniam acceptam fecerit). This second head was practically unknown in Justinian's time, who rendered adstipulationes useless (B. 3, t. 19, prope fin.).

§ 13. The third head of the lex Aquilia gave an action for all kinds of damage other than those specified in the two first heads. Thus, if a slave or a beast of the class pecus was wounded, or if any four-footed beast, not being of the class pecus, as a dog or a wild beast, or a bear or a lion, was wounded or killed, it was this third head that gave an action. It also provided a penal remedy, for all damage wrongfully caused to any other animal or any inanimate thing. In short, it gave an action against any one who broke, burnt, or destroyed, or injured in any way things belonging to any other person.

§ 14. As under the first head, so under this, an action lay not only where there had been fraud, but where there had been neglect.

§ 1, The condemnatio under this third head was the highest value which the article had reached during any of the thirty days preceding the damage. The law did not expressly say the highest value, but merely value (§ 15); but it was held, in accordance with the opinion of Sabinus, that plurimi, expressed in the first chapter, was to be understood in the third.

§ 16. But the lex Aquilia did not allow an actio directa against those who had caused damage except by some sort of physical contact. Hence the damage must have been caused by one body striking another (corpore corpus læsum, § 16 in fin.): the damage to a body by other means raised an actio utilis. For the lex Aquilia punished the damage done (damnum factum), that is, strictly speaking, damage caused, not indirectly, but by a person suo corpore, i.e., by actual contact, either by means of his body or some instrument used by him. It was only by analogy, therefore, and by construction, that the lex Aquilia was held to apply to one who had caused damage otherwise than by actual contact (2), e.g., by confining another's slave or cattle till they perished of hunger. Thus the actio directa legis Aquilia was raised if A. pushed B.'s slave from the top of a bridge or bank into the river, so that he was drowned; but

(1) By the lex Cornelia de sicariis (t. 18, post), a thief might also be prosecuted both civilly and criminally.

(2) Causam præstitit: indirectly caused damage.

an actio utilis only was raised if the slave had been persuaded to go down into a well, or to get up into a tree, from which he fell.

If a body was neither the active nor the passive instrument in the damage; if, e.g., a man touched with compassion unbound a slave so that he might escape his master's wrath, no actio, either directa or utilis, was raised by the lex Aquilia, but here was an actio in factum, which the Prætor allowed to one who had wrongfully suffered damage under circumstances other than those provided for by the lex Aquilia (t. 5, post).

TITLE IV. OF INJURIÆ.

Pr. Injuria denotes generally everything done contrary to right (quod non jure fit): specifically, anything prejudicial to another, as in the lex Aquilia (damnum injuriæ or injuria datum); or injustice done by a magistrate or a judex (iniquitas et injustitia); or an insult (contumelia, Spis), as in this title.

§ 1. Injuria arises from any act, by which one man intentionally (dolo malo) offends another either by word (1) or act, as by slandering his honour or reputation; or by defamatory libels against him; or by causing the goods of another to be attached for a debt known to be fictitious; or by attempting the chastity of an honourable woman (matremfamilias, D. 50, 46), or by soliciting a boy still wearing the toga prætexta (2).

§ 2. A man may receive an injuria not only in person, but also through those whom the delinquent knows to be under his power or protection. Thus, when a filius-familias is injured, the pater-familias has two actions: one in his own right for the injuria done to himself, the other in right of his son for the injuria done to him. By injuring a woman you may injure both the ancestor, to whose power she is subject, and her husband; the same injuria may therefore raise three actions, or even four, if the woman injured is the wife of a filius-familias: for then the injuria would also affect the father of the husband. An injuria to the husband does not affect the wife: for the husband is not properly under her protection, but she is under his.

§3. A slave cannot receive a personal injuria (3): injuria to a slave is properly injuria to his master. But an act which would be an injuria to him if inflicted on his filius-familias is not necessarily so if inflicted

(1) Convicium (D. 47, 10, 15, 4), anything which publicly insults another.

(2) Boys and girls left off wearing that dress at the time of marriage, or after six

teen.

(3) At least strictly; but there were certain exceptions.

on his slave the alleged injuria to the slave must clearly involve an insult to the master. If, therefore, offensive language has been addressed to the slave, or he has even been struck with a fist, no action is allowed to the master; but if the slave has been beaten to excess, the master will be considered injured and have his action (§ 4).

§ 4. If the slave who suffered injuria had several masters, each master was not entitled to have an action in proportion to his share in the slave but each master might bring a separate action in respect of the injury to himself, and each might recover damages (condemnatio) in proportion to his personal consideration (ex dominorum persona quia ipsis fit injuria).

§ 5. When the bare property of a slave belongs to one, and the usufruct to another, the bare proprietor is generally (magis) considered as the party injured although the usufructuary would be entitled to the actio injuriarum if he was the person intended to be injured.

§ 6. The same rule applied to the bonâ fide possessor. The possessor could not sue for an injuria unless the delinquent intended to injure him by injuring a free man or the slave of another in his bonâ fide possession; but generally, the actio injuriarum belonged to none but the man himself if a freeman was injured, or to the slave's master if he was a slave.

§ 10. A man might sue for an injuria criminally or civilly: criminally, for corporal punishment (1); civilly, for condemnatio (damages) by bringing either the actio injuriarum invented by the Prætor, and therefore called honoraria (2), or the action allowed in certain cases by the Cornelian law (§§ 7, 8).

§ 7. When the actio honoraria was brought, the amount of the condemnatio was regulated according to the sum fixed by the demandant himself; and though the judex could not exceed this, he might award less, having regard to the rank and consideration of the party injured. § 8. The actio legis Cornelia was allowed when a man was beaten or maltreated, or his house (domum) violated. But in such cases the

amount of the condemnatio was left to the judex.

§ 9. Injuria was said to be atrox either because of the act itself, as when it arose from wounds or blows; or because of the place where it was committed, as, for instance, the theatre or the forum, or in the pre

(1) In criminal process, a person could neither prosecute nor defend himself by procurator (attorney); but Zeno, in actions injuriarum, allowed an exception in favour of persons illustres (§ 10).

(2) According to the Twelve Tables (§ 7) the penalty for injuria was a limb for a limb; for a bone fractured or bruised,

300 asses in the case of a freeman, and 150 asses in the case of a slave. The penalty for all other injuriæ was only 25 asses. Pecuniary penalties, says Gaius (3, § 23) seem to have been thought sufficient when the people were very poor; but all such provisions ceased when the Prætors introduced their actio injuriæ.

sence of the Prætor; or because of the person injured; e.g., when a magistrate or a senator was injured by a man of low condition, or when the person injured was an ancestor or a patron; lastly, because of the part of the body injured, as, for instance, the eye. But it mattered not whether the person injured was a pater-familias or filius-familias; that neither increased nor diminished the nature of the injuria (1).

§ 11. The man who committed the injury was not the only one liable to the actio injuriarum. He was also liable at whose instigation or under whose orders the injuria had been committed.

§ 12. The actio injuriarum was extinguished by a release, though tacit (dissimulatio), e.g. by the person injured neglecting to sue either within the time fixed, i.e., within the year, or before his death (t. 12, post).

The actio injuriæ never arose at all if there was no feeling of resentment on the part of the person injured; so that if a man once treated an injury with contempt, or seemed not to feel it, he could not afterwards revive a ground of offence which had been abandoned.

TITLE V.-OF OBLIGATIONS ARISING QUASI EX DELICTO.

Obligations arise quasi ex delicto, whenever unlawful and injurious circumstances raising them have not been provided for by a special law, and have had no special action attached to them. For besides delicta actionable either by an actio furti, an actio legis Aquilia, or other special actions, there are certain culpable facta, the penalty for which may be sued for by a general and common action, actio in factum. The obligation is therefore said to arise quasi ex delicto, because the fact which raises it, though not declared by law to be delictum, and though no special action is attached to it, produces results similar to those which would be produced by a delictum (B. 4, t. 1).

Pr. The Institutes mention as examples of obligations raised quasi ex delicto the case in which a judex acts at his own peril (si judex litem suam fecerit); the case of one throwing or spilling something from a house abutting on the public way (dejectum effusumve aliquid est, § 1); or of something so hung or placed that its falling on the public way

(1) Justinian does not explain how the atrocity of an injuria became important. Gaius (3, § 224) notices a difference in the procedure, which probably had ceased to exist in Justinian's time, for he does not allude to it; but though he has pointed out those circumstances of aggravation, he did so probably only to explain what considerations were to enter into the mind of

the judex in settling the condemnatio; and this seems to follow from the words of the text: aliter enim senatoris et parentis patronique, aliter extranei et humilis persona injuria æstimatur. It is clear that a freedman could not sue his patron, nor the child the ancestor under whose power he was, except for severe injuries (atroces).

would be dangerous to the passers-by (positum aut suspensum habet, § 1); and the case of a theft or damage committed on board ship or in a tavern (§ 3).

A judex acts at his own peril when he gives an unjust sentence, either fraudulently (dolo malo, D. 5, 1, 15, 1), i.e., from malice, favour, or corruption, or even from ignorance (imprudentiam) (1).-A man is said facere litem suam, to make the cause affect himself, because, being responsible for his decision, he takes upon his own head the risk of the suit. The party injured by the unjust sentence may have against the judex an actio in factum, by which the judex will be condemned to pay an indemnity, the amount of which must be determined by the judex before whom such action is tried (in quantum de ea re æquum religioni judicantis videbitur) (2).

It cannot be said that the action against the judex interferes with the conclusive effect of the res adjudicata: for that which has been adjudged binds none, except the parties to the suit. But the judex who is defendant in the new suit was no party to the first.

The reason why such severity was adopted against a judex who mistook the law was because he might consult the prudentes, who were officially authorised to answer questions of law, or the magistrate who had referred the action to him, and thus avoid the responsibility arising from an error in law. The reason why damage occasioned by want of skill or imprudence on the part of a surgeon, constituted a delictum, whilst the wrong occasioned by the decision of an unjust judex raised only an obligatio quasi ex delicto was, because the culpable intention, the deceit, was not essential to the delictum in Roman law, and because the ground upon which the damage caused by an unskilful surgeon constituted a delictum, even when he was chargeable with no evil intention, was that the damage arose from an injury inflicted on a body (corpus læsum), which came within the provisions of the lex Aquilia, whereas the iniquity of the judex neither destroyed nor deteriorated any physical or corporeal thing; so that the lex Aquilia could not apply, and therefore an actio in factum was the only remedy for such injustice.

(1) I.e., by a mistake of the law (D. 49, t. 8).

(2) Under the Empire, the party cast in a suit might generally appeal against the decision within a certain time. Sometimes this was unnecessary, as when the decision involved an absolute violation of the law (D. 49, 1, 5, 19); the decision was then considered null, and a fresh suit might be begun (causa de novo induci potest), that is, in the process by formula, a new action might be required from the magistrate, and

without the necessity of any appeal (sine appellatione), or even after an appeal had been entered, if such appeal was quashed by lapse of time (et præscriptione summotus sit). It was the same in case of a venal decision obtained from a judex by corruption. The party entitled either to an appeal, or to consider the judgment null, might also sue the corrupt or ignorant judex, if he preferred so to do, instead of a second suit against the defendant.