Si quis præcipue. Huschke suggests that præcipue has crept into the text from the gloss of a commentator who meant to suggest that the injury might be done with an instrument held in the hand, and so forming part of the body, of the wrongdoer.

The directa actio Aquilia could only be brought by the owner; the utilis might be brought by the possessor, usufructuary, and others having an interest less than that of ownership.

As the action under the lex Aquilia was penal, the whole sum recoverable against one could be recovered separately against each or more than one offender.

If the defendant denied his liability, the penalty under the lex Aquilia was doubled, adversus inficiantem in duplum actio est. (D. ix. 2. 2. 1.)

It might very often happen that the person injured could also bring an action arising from a contract against the doer of the injury, as, for instance, an actio pro socio, mandati, depositi, if the person who did the injury was a partner, a mandatary, or depositary of the person to whom the injury was done. In such a case he could either bring an action on the contract, or proceed under the lex Aquilia. He could not do both; but if he brought the action on the contract, and then found that if he had proceeded under the lex Aquilia he would have recovered a larger sum, he was allowed to bring an action under the lex Aquilia to recover the surplus. (D. ix. 2. 7, 8; D. xliv. 7. 34. 2.)

The subject of damnum is hardly noticed in the Institutes, except in connection with the lex Aquilia. (See Bk. iii. Tit. 18. 2.) By damnum is meant the diminution of a man's property, and it is treated of in the Digest according as it is factum, that is already done, or infectum, that is apprehended, as if an adjoining house seemed likely to fall. (D. xxxix. 2.) Damnum factum, more usually termed simply damnum, might arise from a mere accident, or from the free will of another. If it arose in the latter way, it might have arisen in the exercise of a right enjoyed by the person causing it, and then no reparation had to be made for causing it, non videtur vim facere qui jure suo utitur (D. L. 17. 155); or it might have been done wrongfully, damnum injuria datum, and then the person injured was entitled to compensation according to the rates provided by the lex Aquilia, if the damage came within the scope of the law; if it did not, then an actio in factum was given (D. ix. 2. 33. 1), and compensation was made at rates differing according to the degree of wrong. If there had been dolus or culpa lata, the compensation was regulated by the value peculiar to the person injured: if the degree of culpa had been less, the common value was the measure of the compensation. In cases of damnum infectum, the owner of the property threatened could call on the owner of the property from which danger was apprehended to give security against any loss which might thus arise. (D. xxx. 12. 2. 5. 1.)

TIT. IV. DE INJURIIS.

Generaliter injuria dicitur omne, quod non jure fit: specialiter alias contumelia, quæ a contemnendo dicta est, quam Græci üßpu appellant, alias culpa, quam Græci ádíkŋua dicunt, sicut in lege Aquilia damnum injuria accipitur, alias iniquitas et injustitia, quam Græci ἀδικίαν vocant. Cum enim prætor vel judex non jure contra quem pronuntiat, injuriam accepisse dicitur.

Injuria, in its general sense, signifies every action contrary to law; in a special sense, it means, sometimes, the same as contumelia (insult), which is derived from contemnere, and is in Greek ßpis; sometimes the same as culpa (fault), in Greek åðíkŋμa, as in the lex Aquilia, which speaks of damage done injuria; sometimes it has the sense of iniquity, injustice, or in Greek áduría; for a person against whom the prætor or judge pronounces an unjust sentence, is said to have received an injuria.

D. xlvii. 10. 1.

Injuria, then, is used in three senses-1, a wrongful act, an act done nullo jure; 2, the fault committed by a judge who gives judgment not according to jus; 3, an outrage or affront.

1. Injuria autem committitur non solum, cum quis pugno puta aut fustibus cæsus vel etiam verberatus erit, sed etiam si cui convicium factum fuerit, sive cujus bona quasi debitoris possessa fuerint ab eo, qui intellegebat nihil eum sibi debere, vel si quis ad infamiam alicujus libellum aut carmen scripserit, composuerit, ediderit dolove malo fecerit, quo quid eorum fieret, sive quis matremfamilias aut prætextatum prætextatamve adsectatus fuerit, sive cujus pudicitia attentata esse dicetur et denique aliis pluribus modis admitti injuriam manifestum est.

1. An injury is committed not only when any one is struck, as, for example, with the fist or clubs, but also when public insult is offered to any one; or when possession is taken of the goods of any one on the pretence that he is a debtor to the wrongdoer, who knows he has no claim on him; or when any one has written, composed, and published a book or defamatory verses against another, or has maliciously contrived that any such thing should be done; or when any one has followed after an honest woman, or a young boy or girl, or has attempted the chastity of any one; and, in short, it is manifest that in many other ways injury is committed.

GAI. iii. 220.

Convicium. Ulpian gives (D. xlvii. 10. 15. 4) the following derivation of the word: Convicium autem dicitur vel a concitatione vel a conventu, hoc est a collatione vocum; quum enim in unum complures voces conferuntur, convicium appellatur, quasi convocium,' any proceeding which publicly insults or annoys another, as gathering a crowd round a man's house, or shouting out scandal respecting another to a mob.

Matremfamilias, i.e. every married woman of honest character. Prætextatum, -am, i.e. still wearing the pratexta, which was put off at the age of puberty.

Adsectatus fuerit. Ulpian says (D. xlvii. 10. 15. 22), Adsectatur qui tacitus frequenter sequitur, assidua enim frequentia quasi præbet nonnullam infamiam.'

Pudicitia attentata. Paul says (D. xlvii. 10. 10), Attentari pudicitia dicitur cum id agitur, ut ex pudico impudicus fiat.'

2. Patitur autem quis injuriam non solum per semet ipsum, sed etiam per liberos suos, quos in potestate habet: item per uxorem suam, id enim magis prævaluit. Itaque si filiæ alicujus, quæ Titio nupta est, injuriam feceris, non solum filiæ nomine tecum injuriarum agi potest, sed etiam patris quoque et mariti nomine. Contra autem, si viro injuria facta sit, uxor injuriarum agere non potest: defendi enim uxores a viris, non viros ab uxoribus æquum est. Sed et socer nurus nomine, cujus vir in potestate est, injuriarum agere potest.

GAI. iii. 221; D. xlvii.

2. A man may receive an injury, not only in his own person, but in that of his children in his power, and also in that of his wife, according to the opinion that has prevailed. If, therefore, you injure a daughter in the power of her father, and married to Titius, the action for the injury may be brought, not only in the name of the daughter herself, but also in that of the father and in that of the husband. But, if a husband has sustained an injury, the wife cannot bring the actio injuriarum, for the husband is rightly the protector of the wife, not the wife of the husband. But the father-in-law may also bring this action in the name of his daughter-in-law, if her husband is in his power.

10. 2; D. xlvii. 10. 1. 3.

Each person injured could bring an action. Take, for instance, the case of a married woman. She, her husband, her own father, and her husband's, have each an action, supposing both she and her husband are in potestate. But a person in potestate, though he had an action, could not bring it himself, except in certain cases, as in the absence of the paterfamilias. The paterfamilias would bring the action, and could sue either in his son's name or his own. The amount recovered in the respective actions differed according to the dignity of the person bringing it. It might happen, for instance, that the son was of higher rank than the father. Cum utrique tam filio quam patri adquisita actio sit, non eadem utique facienda æstimatio est : cum possit propter filii dignitatem major ipsi quam patri injuria facta esse. (D. xlvii. 10. 30, 31.) Although the wife was in power of the father, yet her husband could always bring an action for injury done to her, grounded on his natural duty to protect her.

3. Servis autem ipsis quidem nulla injuria fieri intellegitur, sed domino per eos fieri videtur: non tamen iisdem modis, quibus etiam per liberos et uxores, sed ita cum quid atrocius commissum fuerit et quod aperte ad contumeliam domini respicit veluti si quis alienum servum verberaverit, et in hunc casum actio proponitur. At si quis servo convicium fecerit vel pugno eum percusserit, nulla in euin actio domino competit.

3. An injury cannot, properly speaking, be done to a slave, but it is the master who, through the slave, is considered to be injured; not, however, in the same way as through a child or wife, but only when the act is of a character grave enough to make it a manifest insult to the master, as if a person has flogged the slave of another, in which case this action is given against him. But a master cannot bring an action against a person who has publicly insulted his slave, or struck him with his fist. GAI. iii. 222.

E E

Under the civil law the master could not bring an action for injury done to his slave, unless the injury was done with intent to hurt or annoy the master. But the prætor gave an action pleno jure, i.e. which could be brought as a matter of right, if the slave was beaten or tortured without the master's orders, and an action cognita causa, i.e. allowed if the circumstances of the case seemed, on inquiry, to furnish good ground for it, if the injury had been slighter. Regard was had, in making this inquiry, and in estimating the amount of damage, to the class of slaves to which the slave belonged. (See paragr. 7.) The slave himself could in no case bring an action for injury sustained by him. (D. xlvii. 10.

15. 34.)

4. Si communi servo injuria facta sit, æquum est, non pro ea parte, qua dominus quisque est, æstimationem injuriæ fieri, sed ex dominorum persona, quia ipsis fit injuria.

4. If an injury has been done to a slave held in common, equity demands that it shall be estimated not according to their respective shares in him, but according to their respective position, for it is the masters who are injured.

If the co-proprietors brought the action for injury done, or intended to be done, to them through their slave, then, as it is said in the text, it made no difference what was the amount of their interest in the slave. Each had equally had an insult offered him. But the co-proprietors might bring a prætorian action for harm done to the slave, when no insult or hurt was intended to them; but the only question was, how much was the slave damaged and made uufit for work, and then the amount recovered was divided between them, proportionately to their respective interests in the slave. (See note on last paragr.)

5. Quodsi ususfructus in servo Titii est, proprietas Mævii est, magis Mævio injuria fieri intellegitur.

5. If Titius has the usufruct, and Mævius the property in a slave, the injury is considered to be done rather to Mævius than to Titius.

D. xlvii. 10. 15. 47.

It might, however, happen that it could be shown that the intention was to injure and insult the usufructuary more than the proprietor. (D. xlvii. 10. 15. 48.)

6. Sed si libero, qui tibi bona fide servit, injuria facta sit, nulla tibi actio dabitur, sed suo nomine is experiri poterit: nisi in contumeliam tuam pulsatus sit, tunc enim competit et tibi injuriarum actio. Idem ergo est et in servo alieno bona fide tibi serviente, ut totiens admittatur injuriarum actio, quotiens in tuam contumeliam injuria ei facta sit.

6. If the injury has been done to a freeman, who serves you bona fide as a slave, you have no action, but he can bring an action in his own name, unless he has been injured merely to insult you, for, in that case, you may bring the actio injuriarum. So, too, with regard to a slave of another who serves you bona fide, you may bring this action whenever the slave is injured for the purpose of insulting you. D. xlvii. 10. 15. 48.

7. Pœna autem injuriarum ex lege duodecim tabularum propter membrum quidem ruptum talio erat propter os vero fractum nummariæ pœnæ erant constitutæ quasi in magna veterum paupertate. Sed postea prætores permittebant ipsis, qui injuriam passi sunt, eam æstimare, ut judex vel tanti condemnet, quanti injuriam passus æstimaverit, vel minoris, prout ei visum fuerit. Sed pœna quidem injuriæ, quæ ex lege duodecim tabularum introducta est, in desuetudinem abiit: quam autem prætores introduxerunt, quæ etiam honoraria appellatur, in judiciis frequentatur. Nam secundum gradum dignitatis vitæque honestatem crescit aut minuitur æstimatio injuriæ: qui gradus condemnationis et in servili persona non immerito servatur, ut aliud in servo actore, aliud in medii actus homine, aliud in vilissimo vel compedito constituatur.

7. The penalty for injuries under the law of the Twelve Tables was a limb for a limb, but if only a bone was fractured, pecuniary compensation was exacted proportionate to the great poverty of the times. Afterwards, the prætor permitted the injured parties themselves to estimate the injury, so that the judge should condemn the defendants to pay the sum estimated, or less, as he may think proper. The penalty for injury appointed by the Twelve Tables has fallen into desuetude, but that introduced by the prætors, and termed honorary, is adopted in the administration of justice. For, according to the rank and character of the person injured, the estimate is greater or less; and a similar gradation is observed, not improperly, even with regard to a slave, one amount being payable in the case of a slave who is a steward, a second in that of a slave holding an office of an intermediate class, and a third in that of one of the lowest rank, or one condemned to wear fetters.

GAI. iii. 223, 224; D. xlvii. 10. 15. 44.

The greater part of the edict of the prætor on this subject is given by Ulpian in different parts of the extracts from his writings. (See Digest, xlvii. 10. 15.)

8. Sed et lex Cornelia de injuriis loquitur et injuriarum actionem introduxit. Quæ competit ob eam rem, quod se pulsatum quis verberatumve domumve suam vi introitam esse dicat. Domum autem accipimus, sive in propria domo quis habitat sive in conducta vel gratis sive hospitio receptus sit.

8. The lex Cornelia also speaks of injuries, and introduced an actio injuriarum, which may be brought when any one alleges that he has been struck or beaten, or that his house has been broken into. And the term 'house' applies whether a man lives in his own house or in a hired one, or in one he has without payment, or if he has been received as a guest.

D. xlvii. 10. 5. pr. and 2.

The lex Cornelia de sicariis (see Tit. 18. 5), though chiefly directed against murderers, also contained provisions against other deeds of violence. Lex itaque Cornelia ex tribus causis dedit actionem: quod quis pulsatus verberatusve domusve ejus vi introita sit. (D. xlvii. 10. 5.)

9. Atrox injuria æstimatur vel ex facto, veluti si quis ab aliquo vulneratus fuerit vel fustibus cæsus: vel ex loco, veluti si cui in theatro vel in foro vel in conspectu prætoris injuria facta sit: vel ex persona, veluti si magistratus injuriam passus

9. An injury is said to be of a grave character, either from the nature of the act, as if any one is wounded or beaten with clubs by another, or from the nature of the place, as when an injury is done in a theatre, a forum, or in the presence of the prætor;