pass against the heir, though it would have done so if the damages awarded had never exceeded the actual loss sus10 tained by the plaintiff. 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 instituted 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 11 others have been depreciated. 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; the 13 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 crushing 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 crushing 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 wine or oil, so as to spoil its natural goodness, he is liable under this 14 chapter of the statute. 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. It is true that here the statute does not ex- 15 pressly say 'the highest value,' but Sabinus rightly held that the damages must be assessed 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.

It is held that a direct action lies under this statute only 16 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 nor 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.

TITLE 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 üßpis: 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 åðíkŋua; and sometimes iniquity and injustice, which the Greeks express by adiκía; thus a litigant is said to have received an 'injury' when the praetor or judge 1 delivers an unjust judgment against him. An injury or outrage is inflicted not only by striking with the fist, 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 publishing 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 puberty, or attempting anybody's chastity; and, 2 in a word, by innumerable other acts. An outrage or injury may be suffered either in one's own person, or in the person of a child in one's power, or even, as now is generally allowed, in that of one's wife. Accordingly, if you insult a woman who is married to Titius, you can be sued not only in her own name, but also in those of her father, if she be in his power, and of her husband. But if, conversely, it be the husband who is outraged, the wife cannot sue; for wives should be protected by their husbands, not husbands by their wives. Finally, a father-in-law may sue on an outrage committed on his daughter-in-law, if the son to whom she is married is in 3 his power. Slaves cannot be outraged themselves, but their master may be outraged in their person, though not by all the acts by which an outrage might be offered to him in the person of a child or wife, but only by aggravated assaults or such insulting acts as clearly tend to dishonour the master himself: for instance, by flogging the slave, for which an action lies; but for mere verbal abuse of a slave, or for 4 striking him with the fist, the master cannot sue. If an outrage is committed on a slave owned by two or more persons jointly, the damages to be paid to these severally should be assessed with reference not to the shares in which they own him, but to their rank or position, as it is to the reputation 5 and not to property that the injury is done; and if an outrage is committed on a slave belonging to Maevius, but in whom Titius has a usufruct, the injury is deemed to be done to the 6 former rather than to the latter. But if the person outraged is

have no

a free man who believes himself to be your slave, you action, unless the object of the outrage was to bring you into contempt, though he can sue in his own name. The principle is the same when another man's slave believes himself to belong to you; you can sue on an outrage committed on him only when its object is to bring contempt on you.

The penalty prescribed for outrage in the Twelve Tables 7 was, for a limb disabled, retaliation, for a bone merely broken a pecuniary mulct proportionate to the great poverty of the age. The praetors however subsequently allowed the person outraged to put his own estimate on the wrong, the judge having a discretion to condemn the defendant either in the sum so named by the plaintiff, or in a less amount; and of these two kinds of penalties that fixed by the Twelve Tables is now obsolete, while that introduced by the praetors, which is also called 'honorary,' is most usual in the actual practice of the courts. Thus the pecuniary compensation awarded for an outrage rises and falls in amount according to the rank and character of the plaintiff, and this principle is not improperly followed even where it is a slave who is outraged; the penalty where the slave is a steward being different from what it is when he is an ordinary menial, and different again when he is condemned to wear fetters. The lex Cornelia 8 also contains provisions as to outrages, and introduced an action on outrage, available to a plaintiff who alleges that he has been struck or beaten, or that a forcible entry has been made upon his house; the term 'his house' including not only one which belongs to him and in which he lives, but also one which is hired by him, or in which he is received gratuitously as a guest. An outrage becomes 'aggravated' either 9 from the atrocious character of the act, as where a man is wounded or beaten with clubs by another; or from the place where it is committed, for instance, in the theatre or forum, or in full sight of the praetor; or from the rank of the person outraged, if it be a magistrate, for instance, or if a senator be outraged by a person of low condition, or a parent by his child, or a patron by his freedman; for such an injury done to a senator, a parent, or a patron has a higher pecuniary compensation awarded for it than one done to a mere stranger, or

to a person of low condition. Sometimes too the position of the wound makes an outrage aggravated, as where a man is struck in the eye. Whether the person on whom such an outrage is inflicted is independent or in the power of another is almost entirely immaterial, it being considered aggravated 10 in either case. Finally, it should be observed that a person who has been outraged always has his option between the civil remedy and a criminal indictment. If he prefers the former, the penalty which is imposed depends, as we have said, on the plaintiff's own estimate of the wrong he has suffered; if the latter, it is the judge's duty to inflict an extraordinary penalty on the offender. It should be remembered however that by a constitution of Zeno persons of illustrious or still higher rank may bring or defend such criminal actions on outrage by an agent, provided they comply with the requirements of the constitution, as may be more clearly as11 certained by a perusal of the same. Liability to an action. on outrage attaches not only to him who commits the act,the striking of a blow, for instance-but also to those who maliciously counsel or abet in the commission, as, for in12 stance, to a man who gets another struck in the face. The right of action on outrage is lost by condonation; thus, if a man be outraged, and takes no steps to obtain redress, but at once lets the matter, as it is said, slip out of his mind, he cannot subsequently alter his intentions, and resuscitate an affront which he has once allowed to rest.

TITLE V.

OF QUASI-DELICTUAL OBLIGATIONS.

The obligation incurred by a judge who delivers an unjust or partial decision cannot properly be called delictual, and yet it does not arise from contract; consequently, as he cannot but be held to have done a wrong, even though it may be due to ignorance, his liability would seem to be quasidelictual, and a pecuniary penalty will be imposed on him at 1 the judge's discretion. Another case of quasi-delictual obligation is that of a person from whose residence, whether it be his own, or rented, or gratuitously lent him, anything is