At some period, too, society interposed and offered to act as arbitrator, and to procure for the aggrieved party satisfaction of the wrong he had endured. Accordingly all injuries were rated at a certain tariff, and a person who had suffered aggression had the option whether he should avenge himself or, in commutation of his right of Feud, accept the fine fixed by this tariff, and awarded by a tribunal of his countrymen. This mediation of the community, which the plaintiff could accept or decline at his discretion, was the origin of actiones poenales, the poena being the inducement offered to the plaintiff to make him adopt the more peaceful course. Saxon law the alternative offered to the aggressor was expressed by the maxim Biege spere of side other bere: 'Buy the spear off the side or bear it': i. e. make atonement or be liable to Feud. (Kemble.) In Finally the Peace of the King, proclaimed at each coronation, became universal: the state undertook the decision and composition of all quarrels; and private war at all times and in all places was interdicted and superseded by recourse to the public judicature. § 210. Damni iniuriae actio constituitur per legem Aquiliam, cuius primo capite cautum est, (ut) si quis hominem alienum alienamue quadrupedem quae pecudum numero sit iniuria occiderit, quanti ea res in eo anno plurimi fuerit, tantum domino dare damnetur. Inst. 4, 3, pr. § 211. Iniuria autem occidere intellegitur, cuius dolo aut culpa id acciderit; nec ulla alia lege damnum, quod sine iniuria datur, reprehenditur; itaque inpunitus est, qui sine culpa et dolo malo casu quodam damnum committit. Inst. 4, 3, 3. $212. Nec solum corpus in actione huius legis aestimatur; sed sane si seruo occiso plus dominus capiat damni quam pretium serui sit, id quoque aestimatur, ueluti si seruus meus ab aliquo heres institutus, antequam iussu meo hereditatem cerneret, occisus fuerit; § 210. Damage unlawfully caused is actionable under the lex Aquilia, whose first chapter provides, that if a slave of another man, or a quadruped of his cattle, be unlawfully slain, whatever within a year was the highest value thereof, that amount the offender shall pay to the owner. $211. Unlawful slaying means slaying by intention or negligence; loss occasioned by no fault of the person committing it being punished by no law; hence a person who damages another accidentally and not wilfully or negligently does so with impunity. § 212. It is not only the body of the slave or animal slain that is appraised in the action under this statute, but if the killing of a slave occasion to the owner the loss of anything in addition to his price, this loss is also appraised; for instance, if my slave has been instituted somebody's heir, and non enim tantum ipsius pretium aestimatur, sed et hereditatis amissae quantitas. item si ex gemellis uel ex comoedis uel ex symphoniacis unus occisus fuerit, non solum occisi fit aestimatio, sed eo amplius (id) quoque conputatur, quod ceteri qui supersunt depretiati sunt. idem iuris est etiam si ex pari mularum unam uel etiam ex quadrigis equorum unum occiderit. Inst. 4, 3, 10. § 213. Cuius autem seruus occisus est, is liberum arbitrium habet uel capitali crimine reum facere eum qui occiderit, uel hac lege damnum persequi. Inst. 4, 3, 11. § 214. Quod autem adiectum est in hac lege QVANTI IN EO ANNO PLVRIMI EA RES FVERIT, illud efficit, si clodum puta aut luscum seruum occiderit, qui in eo anno integer (fuerit, ut non quanti fuerit, cum occideretur, sed quanti in eo anno plurimi) fuerit, aestimatio fiat; quo fit, ut quis plus interdum consequatur quam ei damnum datum est. Inst. 4, 3, 9. § 215. Capite secundo (aduersus) adstipulatorem, qui pecuniam in fraudem stipulatoris acceptam fecerit, quanti ea res est, tanti actio constituitur. Inst. 4, 3, 12. § 216. Qua et ipsa parte legis damni nomine actionem introduci manifestum est. sed id caueri non fuit necessarium, cum actio mandati ad eam rem sufficeret; nisi quod ea lege aduersus infitiantem in duplum agitur. § 217. Capite tertio de omni before by my order he has signified his acceptance, he is slain, valuation is made not only of his body but also of the inheritance I have missed; or if one of two twins, or one of a company of players, or one of a band of musi cians is slain, an estimate is made not only of his value but also of the extent to which the remainder are depreciated. The same holds if one of a pair of mules, or one of a team of four chariot horses is killed. § 213. The owner whose slave is killed has the option of prosecuting the homicide for a capital crime or of suing him under this statute for damages. § 214. From the words of this statute, 'Whatever within a year was the highest value thereof,' it follows that if the slave killed was lame or blind of one eye, but had been sound within a year, the owner will recover not simply his value at the time of his death but his highest value within a year, the result being that a plaintiff will in some cases recover more than the amount of the loss he has sustained. $215. By the second chapter an adstipulator who defrauds a principal stipulator by releasing the promissor can be sued for the amount of the loss occasioned. § 216. It is evident that in this part of the statute also an action was instituted on account of damage to property, though here the provision was not absolutely necessary, because the action of Mandate would give a sufficient remedy, except for this that the lex Aquilia, when the action is defended, gives double damages. $217. The third chapter makes cetero damno cauetur. itaque si quis seruum uel eam quadrupedem quae pecudum (numero est uulnerauerit, siue eam quadrupedem quae pecudum) numero non est, ueluti canem, aut feram bestiam, ueluti ursum leonem, uulnerauerit uel occiderit, hoc capite actio constituitur. in ceteris quoque animalibus, item in omnibus rebus quae anima carent damnum iniuria datum hac parte uindicatur. si quid enim ustum aut ruptum aut fractum fuerit), actio hoc capite constituitur, quamquam potuerit sola rupti appellatio in omnes istas causas sufficere ; ruptum (enim intellegitur quod quoquo modo corruptum est. unde non solum usta [aut rupta] aut fracta, sed etiam scissa et conlisa et effusa et quoquo modo uitiata aut perempta atque deteriora facta hoc uerbo continentur. Inst. 4, 3, 13. et § 218. Hoc tamen capíte non quanti in eo anno, sed quanti in diebus XXX proximis ea res fuerit, damnatur is qui damnum dederit. ac ne PLVRIMI quidem uerbum adicitur. ideo quidam putauerunt liberum esse iudici uel ad id tempus ex diebus XXX aestimationem redigere, quo plurimi res fuerit, uel ad id quo minoris fuerit. sed Sabino placuit proinde habendum, ac si etiam hac uerbum adparte PLVRIMI iectum esset; nam legis latorem contentum fuisse, (quod prima parte eo uerbo usus esset. Inst. 4, 3, 14. provision for all other damage. Therefore if a slave, or a quadruped included under the name of cattle, is wounded, or if a quadruped not included under the name of cattle, as a dog, or a wild beast, for instance, or a bear or lion, is wounded or is killed, in this chapter an action is provided: so too if other animals or any things inanimate are unlawfully damaged, this part of the statute supplies a remedy, since in this chapter an action is expressly established in case of anything burnt, broken in pieces, fractured: although the single word 'broken' (ruptum) will suffice to cover all these offences, for the word 'broken' (ruptum) is interpreted to mean injured in any way (corruptum quoquo modo); hence not only burning, breaking, crushing, but any cutting, bruising, spilling, vitiating in any way, destroying, or deteriorating, is hereby comprehended. § 218. We should notice that in this chapter it is not the value which the thing had within a year, but which it had within the last thirty days, that is chargeable on the person causing the damage, though the statute itself does not expressly mention the term highest value (plurimi). Hence some of the other school have held that it was left to the discretion of the judex whether the damages should be measured by the highest value or by any lower value which the thing may have had within the last thirty days: but Sabinus held that the law must be interpreted as if it contained the word 'highest' (plurimi), the legislator having thought it sufficient to use this word in the first chapter. § 219. Ceterum) placuit ita demum ex ista lege actionem esse, si quis corpore suo damnum dederit; ideoque alio modo damno dato utiles actiones dantur, ueluti si quis alienum hominem aut pecudem incluserit et fame necauerit, aut iumentum tam uehementer egerit, ut rumperetur; item si quis alieno seruo persuaserit, ut in arborem ascenderet uel in puteum descenderet, et is ascendendo aut descendendo ceciderit (et) aut mortuus fuerit aut aliqua parte corporis laesus sit; sed si quis alienum seruum de ponte aut ripa in flumen proiecerit et is suffocatus fuerit, corpore suo damnum dedisse eo quod proiecerit non difficiliter intellegi potest. Inst. 4, 3, 16. $219. It has been held that an action under this statute only lies when the body of the offender is the instrument of mischief; and therefore for any other mode of occasioning loss praetorian actions (actiones utiles) must be brought: for instance, if a slave or quadruped is shut up and starved to death, or a horse is foundered by hard driving, or a slave is persuaded to climb a tree or descend a well, and in climbing or descending falls and is killed or hurt. But if a slave is pushed off a bridge or bank into a river and there drowned, the body of the person by pushing him may fairly be held to have caused his death. § 210. The lex Aquilia was a plebiscite carried by a tribune called Aquilius, according to Theophilus, at one of the secessions of the plebs, probably at the secession to the Janiculum, B. c. 287, on which same occasion the lex Hortensia was carried, making the plebiscites binding on the patricians. (See Grueber, Lex Aquilia, p. 183.) The words of the first clause are preserved in the Digest: Qui servum servamve alienum alienamve quadrupedem vel pecudem injuria occiderit, quanti id in eo anno plurimi fuit, tantum aes dare domino damnas esto, Gaius in Dig. 9, 2, 2, pr. 'If a slave, male or female, of another person, or a quadruped of his cattle is unlawfully slain, whatever was the highest value it bore in the previous year, such sum the slayer shall be condemned to pay to the owner.' Cattle are animals that feed in flocks or herds, and include horses, mules, asses, oxen, sheep, goats, and swine, Dig. 1. c. 2. § 212. The words Quanti ea res est, erit, or fuit occur in the condemnatio or last part of a formula when a defendant is bound to indemnify a plaintiff, that is, to pay him a certain value. These words have two meanings: they mean either (1) the value of a thing to the world in general, i. e. its selling value or market value, called verum rei pretium, or vera rei aestimatio; or (2) its value to this particular plaintiff, id quod interest actoris, or utilitas actoris; a value which might be either less or greater than the market value. Early law does not include more than the market value of the thing, but in course of time a wider view is taken of the plaintiff's interest (Grueber, Lex Aquilia, p. 265). Where a claim is founded on some kinds of contract, say a contract of insurance against some kind of loss, the market value of the thing lost is generally intended, though this of course depends on the nature and terms of such contract; in this case the loss of the plaintiff does not include the damages he has indirectly experienced (damnum indirectum) nor the gain he has failed to realize (lucrum cessans). When a claim of indemnification is founded on delict or on breach of a contract, if this is not contrary to the intention of the parties, the plaintiff's interest is the measure of the indemnity to be paid, and includes not only the immediate damage that he has suffered, but also the mediate, when it was certain and capable of being foreseen; and not only the positive loss which he has suffered but also the gain which he has been hindered from realizing. If a creditor has been kept out of a sum of money, he will at least be entitled to the current rate of interest: but this is not the limit of his claim, if he can prove that the current rate of interest is insufficient to cover the specific disadvantage he has suffered from the Mora of his debtor. The plaintiff's interest is the measure of the damages he recovers by the Interdicts Uti possidetis, Utrubi, and Unde vi; as it is in all actions founded on delinquency. The actio vi bonorum raptorum, however, is one of the exceptions to the rule. Here, in consequence, probably, of the peculiar wording of the edict, the measure of damages, the simplum or unit to be quadrupled, is not the plaintiff's interest but the market value, Dig. 47, 8, 2, 13, Savigny, System, Appendix 12. Instances of indirect damages due to the act or omission of a defendant, are the depreciation of the remaining horses of a team when one has been killed: the penal sum which a plaintiff is liable to pay from inability to fulfil another engagement in consequence of the default of the defendant: the sale of goods mortgaged by the plaintiff as security for another engagement which he cannot fulfil in consequence of the default of the defendant: the downfall of a house in consequence of the rottenness of the timber supplied by the defendant: the infection and extermination of a whole herd of cattle in consequence of a diseased beast being sold by the defendant. Although in respect of computation of damages claims of indemnity founded on breach of contract, whether in consequence of dolus or culpa, may stand on the same footing as claims founded on delict; 'yet an important distinction was introduced by Justinian, who enacted that in the former case the damages recoverable by this computation of lucrum cessans and damnum indirectum should not exceed the |