THE DIGEST OR PANDECTS. BOOK IX.
CONCERNING THE COMMISSION OF DAMAGE BY A QUADRUPED.
1. Ulpianus, On the Edict, Book XVIII.
Where a quadruped is said to have committed damage, an action which has
come down from a Law of the Twelve Tables may be brought; which Law prescribes
that either whatever caused the damage must be given up, that is, that the
animal that committed it shall be surrendered, or an amount of money equivalent
to the damage shall be paid.
(1) The term "noxia" means the offence itself.
(2) This action has reference to every kind of quadruped.
(3) The prætor says "pauperiem fecisse", which signifies
the damage caused without wrong by the animal which commits it, for an animal
cannot be guilty of wrong in law, because it is deficient in reason.
(4) Therefore, as Servius states, this action is available where an
animal commits damage after its ferocity has been aroused; for example, where a
horse which has the habit of kicking, kicks, or an ox which is accustomed to
butt, does so; or a mule commits damage by reason of extreme savageness. But if
an animal should upset a load on anyone on account of the inequality of the
ground, or the negligence of the driver, or because the animal was overloaded;
this action will not lie, but proceedings must be instituted for wrongful
(5) Where, however, a dog, while he is being led by someone, breaks away
on account of his viciousness, and inflicts injury upon another; then if he
could have been held more securely by some one else, or if the party should not
have led him through that place, this action will not lie, and the party who
had charge of the dog will be liable.
(6) Moreover, this action will not lie if the savage animal causes any
damage through the instigation of another.
(7) And, generally speaking, this action can be brought whenever a
savage animal does any damage which is contrary to its nature, and, therefore,
if a horse irritated by pain, kicks, this action will not lie; but the party
who struck or wounded the horse will be liable rather to an action in
factum, than under the Lex Aquilia, for no other reason than that
the party did not commit the injury with his own body. But where anyone
caresses a horse, or pats him, and he is kicked by it, there will be ground for
(8) Where one animal provokes another and causes it to commit some
damage, the action must be brought with reference to the one that caused the
(9) This action is available whether the animal committed the damage
with its own body or through something else with which it was
in contact; as for instance, where an ox bruises someone by means of a
wagon or by anything else that is upset.
(10) This action will not be available in the case of wild beasts, on
account of their natural ferocity; and therefore if a bear should escape and
commit damage, its former owner cannot be sued, because when the animal escaped
he ceased to be the owner; and therefore, even if I should kill it, the carcass
will be mine.
(11) Where two rams or two bulls fight and one kills the other, Quintus
Mucius makes a distinction; for he holds that the action will not lie if the
one that was the aggressor is killed, but if the one not guilty of the
provocation is killed, the action may be brought; and therefore the owner must
either pay the damage or surrender the animal in lieu thereof.
(12) Also, in the case of quadrupeds, the offence follows the animal;
and this action can be brought against the party to whom the animal belongs,
and not against him to whom it belonged when it committed the damage.
(13) It is evident that if the animal should die before issue is joined,
the right of action will be extinguished.
(14) To surrender the animal by way of reparation is to give it up while
it is alive. If it belongs to several parties, an action for damages can be
brought against them individually, just as in case of a slave.
(15) Sometimes, however, the owner will not be sued to compel him to
give up the animal by way of reparation, but an action will be brought against
him for the entire amount; as for instance, where having been asked in court
whether the animal belongs to him he answers that it does not, and if it should
be proved that it was his, judgment shall be rendered against him for the
(16) If the animal should be killed by anyone after issue has been
joined, since an action will lie against the owner under the Lex Aquilia,
consideration of the Lex Aquilia will be taken in court, because the
owner has lost the power to surrender the animal by way of reparation; and
therefore, in the case which has been stated, he must tender the estimated
amount of damages, unless he is ready to assign his right of action against him
who killed the animal.
(17) There is no doubt whatever that this action will pass to an heir
and the other successor of the party injured; and also that it can be brought
against heirs and other successors, not by the right of succession but on the
ground of ownership.
2. Paulus, On the Edict, Book XXII.
This action will lie, not only in favor of the owner of the damaged
property, but also in favor of any party in interest; as for instance, of one
to whom the property was loaned, and also of a fuller, because those who are
liable are held to have sustained damage.
(1) Where anyone who is trying to escape from another, for example, from
a magistrate, betakes himself to a neighboring shop and is bitten there by a
ferocious dog, certain authorities hold that he has
no right of action on account of the dog; but that he would have one if
the dog was loose.
3. Gaius, On the Provincial Edict, Book VII.
There is no doubt that an action can be brought under this law in behalf
of persons who are free; as, for instance, where an animal wounds the head of a
family, or the son of a family, provided no account is taken of disfigurement,
since anyone who is free does not admit of appraisement; but account may be
taken of the expenses incurred for the cure of the injury and of the loss of
labor which the party could not perform for the reason that he was
4. Paulus, On the Edict, Book XXII.
An equitable action will be available under these circumstances where
the damage was committed, not by a quadruped but by some other animal.
5. Alfenus, Digest, Book II.
While a groom was leading a horse to the stable of an inn, the horse
sniffed at a mule, and the mule kicked and broke the groom's leg. An opinion
was requested whether suit could be brought against the owner of the mule, on
the ground that it had caused the injury, and I answered that it could.
TITLE II. ON THE LEX AQUILIA.
1. Ulpianus, On the Edict, Book XVIII.
The Lex Aquilia annulled all laws previously enacted with
reference to the reparation of unlawful damage, whether these were the Twelve
Tables or any others; which laws it is not necessary to specify at present.
(1) The Lex Aquilia is a plebiscite; whose enactment Aquilius, a
tribune of the people, proposed to the populace.
2. Gaius, On the Provincial Edict, Book VII.
It is provided by the first section of the Lex Aquilia that,
"Where anyone unlawfully kills a male or female slave belonging to another, or
a quadruped included in the class of cattle, let him be required to pay a sum
equal to the greatest value that the same was worth during the past year".
(1) And then the law further provides that, "An action for double
damages may be brought against a person who makes a denial".
(2) It therefore appears that the law places in the same category with
slaves animals which are included under the head of cattle, and are kept in
herds, as, for instance, sheep, goats, oxen, horses, mules, and asses. The
question arises whether hogs are included under the designation of cattle, and
it is very properly decided by Labeo that they are. Dogs, however, do not come
under this head; and wild beasts are
far from being included, as for instance, bears, lions, and panthers.
Elephants and camels are, as it were, mixed, for they perform the labor of
beasts of burden, and yet their nature is wild, and therefore they must be
included in the first Section.
3. Ulpianus, On the Edict, Book XVIII.
Where a male or a female slave has been unlawfully killed, the Lex
Aquilia is applicable. It is added with reason that it must be unlawfully
killed, as it is not sufficient for it to be merely killed, but this must be
done in violation of law.
4. Gaius, On the Provincial Edict, Book VII.
Therefore, if I kill your slave who is a thief and is attacking me at
the time, I shall be free from liability, "For natural reason permits a man to
protect himself from danger".
(1) The Law of the Twelve Tables permits anyone to kill a thief who is
caught at night, provided, however, that he gives warning by an outcry; and it
permits him to kill the thief in the day-time, if he is caught and defends
himself with a weapon, provided always, that he calls others to witness with an
5. Ulpianus, On the Edict, Book XVIII.
Where, however, anyone kills another who is attacking him with a weapon,
he is not held to have killed him unlawfully; and where anyone kills a thief
through fear of death, there is no doubt that he is not liable under the Lex
Aquilia. But if he is able to seize him, and prefers to kill him, the
better opinion is that he commits an unlawful act, and therefore he will also
be liable under the Lex Cornelia.
(1) We must here understand the term "injury" to mean not some insult,
as we do with reference to an action for injury, but something done illegally,
that is to say contrary to the law; for instance, where anyone kills by
negligence, and hence sometimes both actions can be brought, namely, that under
the Lex Aquilia, and that for injury; but, in this case there will be
two assessments, one for damage, and the other for insult, consequently, we
must here understand the term "injury" to signify damage committed through
negligence, even by a party who did not intend to do wrong.
(2) Therefore we ask whether an action under the Lex Aquilia will
lie where an insane person causes damage? Pegasus denies that it will, for how
can anyone be negligent who is not in his right mind? This is perfectly true.
Hence an action under the Lex Aquilia will not lie; just as where an
animal causes the damage, or where a tile falls from a roof.
Again, if a child causes any damage the same rule applies. If, however,
a boy who has not reached puberty causes it, Labeo says that he is liable under
the Lex Aquilia, because he would be liable for theft; and I think this
opinion is correct, if he is capable of committing a breach of the law.
(3) Where a teacher wounds or kills a slave while instructing him, will
he be liable under the Lex Aquilia on the ground that he committed
unlawful damage? Julianus says that a person was held liable under the
Lex Aquilia, who blinded a pupil in one eye while instructing him; and
much more would he have been liable, if he had killed him. He supposes the
following case. A shoemaker, while teaching his trade to a boy who was freeborn
and the son of a family, and who did not properly perform the task which he had
given him, struck him on the neck with a last, and the boy's eye was destroyed.
Julianus says that, in this instance, an action for injury will not lie because
he inflicted the blow, not for the purpose of causing him injury, but of
warning and teaching him. Still, he is in doubt as to whether an action on a
contract will lie, because only moderate punishment is conceded to a person who
imparts instruction. I do not doubt, however, that an action can be brought
under the Lex Aquilia;
6. Paulus, On the Edict, Book XXII.
As extreme severity on the part of an instructor is attributed to
7. Ulpianus, On the Edict, Book XVIII.
By this action the father will obtain damages to the amount of the value
of the services of his son which he lost on account of the destruction of his
eye, as well as the expenses he incurred for his medical treatment.
(1) We must understand the term "kill" to mean where this was done
either with a sword, a club, or some other weapon, or with the hands if
strangulation was used, or with a kick, or by striking him on the head, or in
any other way whatsoever.
(2) The Lex Aquilia will apply where anyone who has been too
heavily laden throws down his load and kills a slave; for it was in his power
not to be overloaded in this manner. Pegasus says that if anyone should slip
and crush with his load a slave belonging to another, he will be liable under
the Lex Aquilia, if he loaded himself more heavily than he should have
done, or walked carelessly over a slippery place.
(3) In like manner, where anyone injures another because of someone
pushing him, Proculus holds that neither he who gave the push is liable,
because he did not kill him, nor he who was pushed either, because he did not
commit wrongful injury; according to which opinion an action in factum
should be granted against the party who gave the push.
(4) Where anyone in a wrestling match or in a wrestling and boxing
contest or where two boxers are engaged, kills another; and he does so in a
public exhibition, the Lex Aquilia will not apply, because the damage
must be considered to have been committed for the sake of renown and courage,
and not with the intent to cause injury. This, however, is not applicable to
the case of a slave, since freeborn persons are accustomed to take part in such
contests, but it does apply where the son of a family is wounded. It is evident
that if one party inflicts a wound while the other was retiring, the Lex
Aquilia will be applicable; or if he kills a slave where there is no
contest, unless this is done
at the instigation of the master; for then the Lex Aquilia will
(5) Where anyone lightly strikes a slave who is sick, and he dies; Labeo
justly holds that he will be liable under the Lex Aquilia, for a blow
that is mortal to one man, often will not be so to another.
(6) Celsus says that it makes a great deal of difference whether the
party actually kills, or provides the cause of death, as he who provides the
cause of death is not liable under the Lex Aquilia, but is to an action
in factum. With reference to this, he cites the case of a party who
administered poison as medicine, and who he says provided the cause of death;
just as one who places a sword in the hands of an insane person, for the latter
would not be liable under the Lex Aquilia, but would be to an action
(7) But where anyone throws another from a bridge, whether he is killed
by the blow which he received, or is submerged and drowned, or, overcome by the
force of the current, dies exhausted; the culprit, Celsus says, is liable under
the Lex Aquilia, just as if he had dashed a boy against a rock.
Proculus holds that if a physician should operate upon a slave
unskillfully, an action will lie either on the contract, or under the Lex
8. Gaius, On the Provincial Edict, Book VII.
The same rule is applicable where he wrongfully makes use of a drug; but
if a surgeon operates properly, and does not employ any further curative
measures, he will not be free from responsibility, but is considered to be
guilty of negligence.
(1) Moreover, where a muleteer, through want of skill, is unable to
restrain the course of his mules, and they crush a slave belonging to another,
it is ordinarily said that the driver is liable on account of negligence. The
same view is held if he cannot control his mules because of want of strength;
nor does it seem to be unjust that want of strength should furnish ground for
negligence, because no one ought to undertake anything which he knows, or ought
to know, will be dangerous to others on account of his weakness.
The law is the same in the case of a person who, through want of skill
or want of strength, cannot manage the horse on which he is riding.
9. Ulpianus, On the Edict, Book XVIII.
Moreover, where a midwife administers a drug to a woman and she dies in
consequence, Labeo makes a distinction, namely: that if she administered it
with her own hands she is held to have killed the woman, but if she gave it to
the latter in order that she might take it, an action in factum should
be granted, and this opinion is correct; for she rather provided the cause of
death, than actually killed the woman.
(1) Where anyone, either by force of persuasion, administers a drug to
another, either by the mouth, or by injection, or anoints him with some
poisonous substance; he will be liable under the Lex Aquilia, just as
the midwife who administers a drug is liable.
(2) Where anyone kills a slave by starvation, Neratius says he is
liable to an action in factum.
(3) If my slave is riding on horseback, and by frightening the horse you
cause the slave to be thrown into a river, and he loses his life in
consequence, Ofilius writes that an action in factiim should be granted;
just as if my slave had been drawn into ambush by one man and killed by
(4) Again, where a slave is killed by parties who are practicing with
javelins for amusement, the Lex Aquilia is applicable; but where others
are practicing with javelins, and a slave crosses the place the Lex Aquilia
will not apply, because he should not have rashly crossed the field where
this practice was going on; but still, if anyone intentionally casts a javelin
at him, he will be liable under the Lex Aquilia.
10. Paulus, On the Edict, Book XXII.
For a dangerous game should be classed as an act of negligence,
11. Ulpianus, On the Edict, Book VIII.
Mela also says that if, while several persons are playing ball, the ball
having been struck too violently should fall upon the hand of a barber who is
shaving a slave at the time, in such a way that the throat of the latter is cut
by the razor; the party responsible for negligence is liable under the Lex
Aquilia. Proculus thinks that the barber is to blame; and, indeed, if he
had the habit of shaving persons in a place where it is customary to play ball,
or where there was much travel, he is in a certain degree responsible; although
it may not improperly be held that where anyone seats himself in a barber's
chair in a dangerous place, he has only himself to blame.
(1) Where one party holds a slave and another kills him, the party who
held him is liable to an action in factum, since he provided the cause
(2) But where several persons struck the slave, let us consider whether
all of them will be liable, just as if they had all killed him? And, if it is
known by whose blow he lost his life, the former will be liable for having
killed him; but if this is not known, Julianus says all of them can be held
liable for his death, and if proceedings are instituted against only one, the
others cannot be discharged; for under the Lex Aquilia, where one man
pays he does not release another, as the action is a penal one.
(3) Celsus states that where anyone strikes a slave a mortal blow, and
another deprives him of life, the former will not be held liable for having
killed him, but only for having wounded him, for the reason that he died from a
wound inflicted by another, but the latter will be liable because he killed
him; and this opinion is held by Marcellus, and is the more reasonable one.
(4) It was decided by the ancient authorities that where several persons
throw down a beam which crushes a slave, all are equally liable to an action
under the Lex Aquilia.
(5) Proculus also gave it as his opinion that a party who provoked a
dog, and caused him to bite some one, would be liable to an action under the
Lex Aquilia, even though he did not have hold of the dog. Julianus,
however, says that, in this instance, he is liable under the Lex Aquilia
only if he held the dog, and caused him to bite the other party; but if he
did not hold him, an action in factum should be brought against him.
(6) An action under the Lex Aquilia can be brought by the master,
that is, by the owner.
(7) Where wrongful damage is done to a slave that I was about to return
to you on delivery of the price, Julianus says that I have a right to an action
under the Lex Aquilia, and that when I begin to return the slave I must
assign it to you.
(8) But if the slave is serving in good faith some person who is not his
owner, will the latter have a right of action under the Lex Aquilia? The
better opinion is that an action in factum should be granted.
(9) Julianus says that where clothing is loaned to anyone and it is
torn, the latter cannot bring an action under the Lex Aquilia, but the
owner of the clothing can do so.
(10) Julianus discussed the point whether an usufructuary or a party
entitled to the use of property has a right of action under the Lex Aquilia?
I think the better opinion is that in a case of this kind, a
prætorian action should be granted.
12. Paulus, On Sabinus, Book X.
Where the mere owner of property wounds or kills a slave in whom I have
the usufruct, an action should be granted me, as under the Lex Aquilia,
for damages in proportion to the amount of my usufruct; and that portion of
the year which elapsed previous to my usufruct must also be included in the
assessment of said damages.
13. Ulpianus, On the Edict, Book XVIII.
A freeman is entitled to a prætorian action, based on the Lex
Aquilia, in his own name; but he cannot bring the direct action, because no
one can be held to be the owner of his own limbs. A master, however, can bring
an action on account of a fugitive slave.
(1) Julianus says that if a freeman serves me in good faith as a slave,
he himself is liable to me under the Lex Aquilia.
(2) Where a slave belonging to an estate is killed, the question arises
who can bring suit under the Lex Aquilia, since there is no owner of
said slave? Celsus says, that it is the intention of the law that all damages
should be made good to the owner, and therefore the estate will be considered
the owner; hence when the estate is entered upon, the heir can institute
(3) Where a slave who was bequeathed is killed after the estate has been
entered upon, the right of action under the Lex Aquilia belongs to the
legatee, unless he did not accept the legacy until after the
death of the slave; because if he rejected it, Julianus says that the
result will be that the right of action must be said to belong to the heir.
14. Paulus, On the Edict, Book XXII.
But where the heir himself kills the slave, it has been established that
an action against him must be granted to the legatee.
15. Ulpianus, On the Edict, Book XVIII.
In consequence of what was written it must be stated that, if the slave
who was bequeathed is killed before the estate is entered upon, the right of
action under the Lex Aquilia must remain with the heir, on account of
having been acquired through the estate. If, however, the slave was wounded
before the estate was entered upon, then, in fact, the right of action remained
as a portion of the assets of the estate, but the heir is obliged to assign it
to the legatee.
(1) Where a slave is mortally wounded and afterwards loses his life
through the fall of a building, or through shipwreck, or through some blow,
sooner than he otherwise would have done; an action cannot be brought on the
ground of his death, but only for wounding him. If, however, he was manumitted
or sold, and afterwards died of the wound, Julianus says an action can be
brought as for having killed him. This difference exists because he was killed
by you at the time you wounded him, although this only became apparent when he
died; but in the former instances the fall of the building did not permit it to
appear whether he was killed or not. Where a slave is mortally wounded and you
order him to be free, and appoint him your heir, and he then dies, his heir
cannot bring suit under the Lex Aquilia,
16. Marcianus, Rules, Book IV.
Because the affair has come to such a pass that the right to bring suit
could not have originally existed.
17. Ulpianus, On the Edict, Book XVIII.
Where an owner kills his own slave, he will be liable to an action in
factum brought by a bona-fide possessor or a party who held the
slave in pledge.
(1) (If Stichus has been bequeathed to two persons conjointly, and
having been killed is rejected by one of the legatees; I think that one legatee
alone can bring suit under the Lex Aquilia, because the ownership seems
to have vested in him by retroactive effect.)
18. Paulus, On Sabinus, Book X.
Where, however, a party who has received a slave in pledge kills or
wounds him, suit can be brought against him under the Lex Aquilia and
also on the pledge, but the plaintiff must be content with one or other of
19. Ulpianus, On the Edict, Book XVIII.
But where anyone kills a slave held in common he is liable under the
Lex Aquilia, so Celsus says; and the same rule applies if he wounds
20. The Same, On Sabinus, Book XLII.
That is, with reference to the share for which he brings suit as
21. The Same, On the Edict, Book XVIII.
The law says: "The greatest value of the slave during that past year".
This clause refers to an assessment of the amount of the damage which was
(1) The year is to be calculated back from the day on which the slave
was killed; but if he was only mortally wounded and died after a long interval
had elapsed, then, according to Julianus, we must compute the year from the day
on which he was wounded; although Celsus holds a different opinion.
(2) Must we, however, only appraise the value of the body of the slave
when he was killed, or shall we not rather estimate what our interest was in
his not being killed? The present rule is that an estimate shall be made of
what our interest was worth.
22. Paulus, On the Edict, Book XXII.
Hence if you have killed a slave whom I had contracted to deliver to
some party under a penalty, the benefit to be derived by me must be considered
in the hearing of the case.
(1) The personal qualities of the slave must also be taken into
consideration in making the estimate, as for instance, where someone kills a
slave who belonged to a troop of actors or singers; or one of twins; or one of
a team of four horses; or the male or female of a pair of mules; for, under
such circumstances, not only should an estimate be made of the value of the
animal that is destroyed, but the depreciation of those that remain must also
be taken into account.
23. Ulpianus, On the Edict, Book XVIII.
Hence Neratius states that if a slave who has been appointed an heir is
killed, the value of the estate must also be taken into consideration.
(1) Julianus says that if a slave who had been liberated and appointed
heir is killed, neither the substituted heir nor the heir at law can recover
the appraised value of the estate by an action under the Lex Aquilia, as
the slave had not yet obtained it; and this opinion is correct. Therefore, the
sole estimate which can be made is that of the value of the slave, since this
is held to be the only thing in which the substitute is interested; but I think
that even the estimate of his value should not be made, because if he had been
the heir he would also have been free.
(2) Julianus further says that if I am appointed an heir under the
condition that I will manumit Stichus, and Stichus is killed after the death of
the testator, the appraised amount that I will be entitled to will likewise
include the value of the estate; for the condition was not fulfilled on account
of the death of the slave; but if the slave was killed during the lifetime of
the testator, the estimated value of the estate
cannot be considered, because the greatest value of the slave during the
preceding year was retroactively taken into account.
(3) Julianus also says that the appraisement of the value of the slave
who was killed can only be made with reference to the time when he was worth
the most during that year; and, therefore, if the thumb of a valuable artist
was cut off, and within a year of the time when this was done he was killed;
his owner can bring an action under the Lex Aquilia, and his value must
be estimated at the amount he was worth before he lost his skill along with his
(4) Where, however, a slave is killed who had committed great frauds in
my accounts, and whom I had intended to put to torture in order to extract from
him the names of his accomplices in the frauds, Labeo very properly holds that
the value of the slave should be estimated at the amount of the interest I had
in detecting the frauds committed by him, and not on the basis of the loss
caused by the slave himself.
(5) If, however, a well-behaved slave should change his habits, and be
killed within a year; the estimate of his value should be made upon the basis
of what he was worth before the change took place.
(6) In short, it must be held that whatever advantage rendered the slave
more valuable at any time within the year during which he was killed, should be
included in the appraisement of his actual value.
(7) Where an infant slave who is not yet a year old is killed, the
better opinion is that the appraisement of his value should be referred to that
part of the year during which he was living.
(8) It is established that this action is granted to the heir and other
successors; but it will not be granted against the heir and the successors of
the other party, as it is a penal one; unless the said heir should have become
more wealthy through the damage which was caused.
(9) Where a slave is killed through malice, it is established that his
owner can also bring suit under the Lex Cornelia, and if he proceeds
under the Lex Aquilia, his suit under the Lex Cornelia will not
(10) This action can be brought for civil damages where the party
confesses his guilt, and for double damages where he denies it.
(11) Where anyone confesses that he killed a slave who is still living,
and afterwards is prepared to show that the said slave is still alive; Julianus
says that the Lex Aquilia does not apply, even though the party
confesses that he killed him; because where the suit is based on a confession
the plaintiff is not required to prove that the party who killed the slave was
the defendant, but it is essential that the slave should have been killed by
24. Paulus, On the Edict, Book XXII.
This point is more clearly shown where a slave is said to be wounded;
but if the defendant should confess that he has wounded him, and this was not
the case, upon what wound are we to base the appraisement, or to what date are
we to refer?
25. Ulpianus, On the Edict, Book XVIII.
Hence, if the slave was not killed, but died, the better opinion is that
the defendant should not be liable for the dead slave, even though he may have
confessed that he killed him.
(1) Where an agent, a guardian, a curator, or anyone else confesses that
his absent principal wounded a slave, a prætorian action based upon the
confession should be granted against said party.
(2) It should be noted that in this action which is granted against the
person making a confession, the judge is appointed not for the purpose of
rendering a decision, but to assess the damages; for no trial can take place
for the conviction of persons who confess.
26. Paulus, On the Edict, Book XXII.
Suppose, for example, that the person against whom the action is brought
should confess that he killed the slave, and be prepared to pay his appraised
value, and his adversary makes a very high estimate of the same.
27. Ulpianus, On the Edict, Book XVIII.
Where one slave carries off another belonging to a different owner, and
kills him, both Julianus and Celsus hold that an action based on theft as well
as one on wrongful damage will lie.
(1) Where a slave is owned in common, that is to say, belongs to you and
me, and he kills another slave belonging to me, a suit based on the Lex
Aquilia can be brought against you, if the slave acted with your consent;
and Proculus also held this opinion, as Urseius asserts. But if he did not
commit the act with your consent, a noxal action will not lie, lest it might be
in the power of the slave to belong to you alone. I think this to be
(2) Moreover, if a slave who is held in common by you and me is killed
by a slave belonging to Titius, Celsus says that if one of the owners brings
suit, he will either obtain a proportionate amount of the damages assessed, or
the slave must be absolutely surrendered by way of reparation, because this is
a matter which is not susceptible of division.
(3) The owner is liable on account of the slave who committed the
homicide, and he whom he is serving as a slave in good faith is not liable; but
the question arises whether a party whose slave is a fugitive, is liable on his
account under the Lex Aquilia? Julianus says that he is liable. This is
perfectly true, and Marcellus also holds the same opinion.
(4) The second Section of this law has fallen into desuetude.
(5) In the third Section the Lex Aquilia says, "If anyone damages
the property of another except by killing slaves or cattle, whatever the value
of the property burned, broken to pieces, or injured, was, within the preceding
thirty days; the party must be compelled to pay the amount to the owner of the
(6) Hence, if a man should not kill a slave or an animal but should
burn, break, or injure any other property, proceedings could undoubt-
edly be taken under this provision of the law. Therefore, if you throw a
torch at my slave and burn him, you will be liable to me.
(7) Moreover, if you set fire to my trees, or to my farmhouse, I am
entitled to an action under the Lex Aquilia.
(8) If anyone should intend to burn my house, and the fire spreads to
the house of my neighbor, he will be liable also to the neighbor under the
Lex Aquilia; and he will be not less liable to the tenants, on account
of the burning of their personal property.
(9) If the slave of a tenant who has charge of a furnace goes to sleep
in front of it, and the house burns down; Neratius says that where an action is
brought on the lease the tenant must make good the loss, if he was negligent in
the selection of persons in his service; but where one person kindled the fire
in the furnace, and another was negligent in looking after it, will he who
kindled the fire be liable? He who had charge of the fire did nothing, and he
who kindled it properly was blameless; what then is the conclusion? I think
that a prætorian action will lie both against him who fell asleep before
the furnace and against him who neglected to attend to it, for no one should
say with reference to the one who went to sleep that his failing was only human
and natural, since he should either have extinguished the fire, or have
protected it in such a way that it could not spread.
(10) If you have an oven against a party-wall will you be liable for
wrongful damage? Proculus says that no action can be brought, because none will
lie against a party who has a hearth. Therefore, I think it is more just that
an action should be granted in factum, of course, if the wall is burned;
but if you have not yet caused me any damage, but your fire is in such a place
that I am afraid that you will do so, I think that a bond providing against
threatened injury will be sufficient.
(11) Proculus says that where the slaves of a tenant burn down a
farm-house, the tenant will be liable either under the lease or under the
Lex Aquilia, so that he can surrender the slaves by way of reparation;
and where the case has been decided under one of the actions, no further
proceedings can be instituted under the other. This is understood only to apply
where the tenant was not guilty of negligence; but if he owned slaves who were
in the habit of committing criminal acts, he will be liable for wrongful damage
for having slaves of this kind.
He states that the same rule must be observed with reference to persons
who lodge in a building; and this opinion is reasonable.
(12) If my bees fly away to yours, and you burn them, Celsus says that I
have a right of action against you under the Lex Aquilia.
(13) The law says "break to pieces". This word almost all ancient
authorities understood to mean the same as "destroy".
(14) Therefore, Celsus makes the inquiry, if you sowed darnel or weeds
in the wheat-field of another, the owner of the same can not only institute
proceedings under the interdict Quod vi aut clam, (or if the land is
leased, the tenant can do so) but he can also bring an action in factum;
and if the tenant brings it he must give security that no other proceedings
shall be instituted; this, of course, being done in order to
prevent the owner from causing further annoyance, for it is one kind of
damage to destroy or change something, for the purpose of giving cause for a
suit under the Lex Aquilia; and another, when, without changing the
substance of the article itself, you mingle something with it, the separation
of which would be troublesome.
(15) Celsus says, that it is evident that suit can be brought under the
Aquilian Law where a party puts filth in wine, or spills it, or makes it sour,
or spoils it in any other way; for both pouring it out and making it sour are
embraced in the words "destroy".
(16) And he does not deny that "break to pieces", and "burn" are also
included in the word "destroy"; but that there is nothing new where certain
things are especially enumerated in the law, for it usually adds a general term
including those specific things. This opinion is correct.
(17) We must, by all means, understand that the expression "break to
pieces" is applicable where a party wounds a slave, or strikes him with a
stick, or a strap, or with his fist, or with a weapon, or with anything else
which would cut or raise a swelling upon the body of anyone, but only to the
extent where wrongful damage is committed.
But where the act does not diminish the value of the slave or render him
less useful, the Lex Aquilia, is not available, and an action for injury
alone can be brought; for the Lex Aquilia only applies to such injuries
as have caused loss. Therefore, if the value of the slave is not diminished,
but expenses have been incurred to have him made well and sound again, it is
held that I am damaged to that extent; and therefore an action can be brought
under the Lex Aquilia.
(18) Where anyone tears, or soils the clothes of another, he is liable,
just as if he had destroyed them.
(19) Moreover, if anyone throws my millet or wheat into a river, the
action under the Lex Aquilia will be sufficient.
(20) Again, where anyone mixes sand or something else with my wheat, so
that it will be difficult to separate it, proceedings can be brought against
him just as if he had destroyed it.
(21) If anyone should knock coins out of my hand, Sabinus is of the
opinion that an action for wrongful injury will lie, if they are lost in such a
way that they cannot come into anyone's possession, as for instance, where they
have fallen into a river, the sea, or a sewer; but where they come into
someone's possession, proceedings must be instituted for theft caused by aid
and advice. This was the opinion of the ancient authorities. Sabinus says that
an action in factum can also be granted.
(22) If you strike a woman with your fist or a mare receives a blow from
you, and a miscarriage results, Brutus says that you are liable under the
Lex Aquilia for "breaking to pieces", as it were.
(23) And also, if anyone overloads a mule, and breaks one of its limbs,
the Lex Aquilia will be available.
(24) Where anyone pierces the hull of a vessel loaded with merchandise,
Viviannus says that an action will lie under the Lex Aquilia for
"breaking to pieces", as it were.
(25) If a party picks olives that are not ripe, or reaps grain that is
not mature, or gathers grapes that are green, he will be liable under the
Lex Aquilia; but if the crops have reached maturity, the Lex Aquilia
will not apply; for no wrong is committed, as the party has presented you
with the expenses which would have been incurred by harvesting crops of this
kind; if, however, he removes what has been gathered he will be liable for
theft. Octavenus says with reference to grapes, "Unless he throws the grapes on
the ground, so that they are scattered".
(26) The same writer states with reference to cutting wood, that if what
is cut is immature, the party will be liable under the Lex Aquilia; but
if he takes it away after it is mature, he will be liable for theft, as well as
for cutting trees by stealth.
(27) Where you remove mature willows in such a way as not to injure the
trunks of the trees, the Lex Aquilia is not available.
(28) If anyone castrates a boy slave, and thereby renders him more
valuable, Vivianus says that the Lex Aquilia does not apply, but that an
action can be brought for injury, either under the Edict of the Ædiles,
or for fourfold damages.
(29) If you entrust an artisan with a cup to be polished, and he breaks
it through want of skill, he will be liable for wrongful damage; but if he does
not break it through want of skill, but it had cracks which spoiled it, he will
be excusable; and therefore artisans, when things of this description are
entrusted to them, are generally accustomed to provide by an agreement that the
work will not be at their risk; and this bars any right of action on the
agreement, or under the Lex Aquilia.
(30) Where a husband gives loose pearls to his wife for her own use, and
she perforates them without the consent or knowledge of her husband, in order
that they may afterwards be worn upon a string, she will be liable under the
Lex Aquilia, either after a divorce, or while she is still married.
(31) Where anyone breaks down or forces open the doors of my building,
or demolishes the building itself, he is liable under the Lex
(32) Where anyone demolishes my aqueduct, although the materials of
which it was composed are my property, still, because the land through which I
bring the water is not mine, the better opinion is to say that a
prætorian action should be granted.
(33) Where a stone falls from a wagon and destroys or breaks anything,
it is held that the driver of the wagon is liable to an action under the Lex
Aquilia, if he loaded the stones insecurely and for that reason they
(34) Where anyone employs a slave to lead a mule, and places the mule in
his care; and he ties the strap of the halter to his thumb, and the mule breaks
loose and tears off the thumb of the slave, and then precipitates itself from a
height; Mela says, that if a slave who was unskillful was hired as being
skillful, an action can be brought against the owner of the slave on account of
the mule which was destroyed, or disabled; but if the mule was excited by a
blow, or by fright, the owner,
(that is to say, the owner of the mule as well as the owner of the
slave) will be entitled to an action under the Lex Aquilia, against the
person who frightened the mule. It seems to me, however, that even in a case
where an action on contract will lie, one also can be brought under the Lex
(35) Moreover, if you entrust a vat full of wine to be repaired by a
plasterer, and he breaks a hole in it so that the wine runs out, Labeo says
that an action in factum will lie.
28. Paulus, On Sabinus, Book X.
Where persons dig pits for the purpose of catching bears or deer, and do
this on the highway, and anything falls into them and is injured, they will be
liable under the Lex Aquilia; but they will not be liable if they dug
the pits in some other place where this is ordinarily done.
(1) This action, however, should only be brought where proper cause is
shown; that is to say, where no notice was given, and the owner had no
knowledge, and could not provide against the accident. And indeed, a great many
instances of this kind are encountered, in which a plaintiff is barred if he
could have avoided the danger;
29. Ulpianus, On the Edict, Book XVIII.
Just as if you set traps in a place where you have no right to set them,
and the cattle of a neighbor are caught in them.
(1) If you cut off my roof which I have permitted to project over your
house without any right; Proculus states that I am entitled to an action
against you for wrongful damage, as you should have sued me, alleging that I
had no right to have a projecting roof; and it is not just that I should suffer
damage through your cutting off my timbers.
A contrary rule is to be found in a Rescript of the Emperor Severus, who
stated in said Rescript to a party through whose house an aqueduct was carried
without any servitude existing, that he had a right to destroy it himself; and
this seems reasonable, for the difference is that in one instance a man built
the roof on land which belonged to him and in the other, the party built the
aqueduct on the premises of someone else.
(2) If your ship collides with my boat and I am damaged, the question
arises what action shall I be entitled to? Proculus says that if it was in the
power of the sailors to prevent the accident, and it occurred through their
negligence, an action can be brought against them under the Lex Aquilia,
because it makes but little difference whether you cause damage by driving
the ship at the boat, or by steering towards the ship, or inflict the injury
with your own hands; as in all these ways I sustain damage through your agency,
but where the ship ran against the boat on account of a broken rope, or because
there was no one to steer it, an action cannot be brought against the
(3) Labeo also says, that where a ship is impelled by the force of the
wind against cables attached to the anchors of another ship, and the sailors
cut the cables; and the ship cannot be extricated in any other way but by
cutting the cables, no action should be granted.
Labeo and Proculus are of the same opinion with reference to the nets of
fishermen in which a vessel belonging to others had become entangled; and it is
evident that if this took place through the negligence of the sailors, an
action under the Lex Aquilia should be brought. Where, however, suit is
brought for wrongful damage to the nets, no estimate should be taken of the
fish which were not caught on this account; since it is uncertain whether any
would have been caught. The same rule is adopted in the case of hunters, and
(4) If one ship collides with another approaching in the opposite
direction, an action on the ground of wrongful damage will lie either against
the steersman or the captain, so Alfenus says. Where, however, the ship was
driven with too much force to be controlled, no action can be granted against
the owner; still if the trouble occurred through the negligence of the sailors,
I think that an action under the Lex Aquilia would be sufficient.
(5) Where anyone cuts a cable by which a vessel is secured, and the
vessel is lost in consequence, an action in factum will lie.
(6) Under this Section of the law proceedings can be instituted by this
action for the injury of any animals which are not classed as cattle, for
instance, a dog; and the same rule will apply with respect to a wild boar, or
lion, and other wild beasts and birds.
(7) Municipal magistrates who have committed wrongful damage can be held
liable under the Lex Aquilia; for where any of them has taken cattle of
yours in execution, and allows them to die of hunger, by not permitting you to
give them food an action in factum should be granted. Moreover, where he
thinks that he is levying an execution in accordance with law, but does not
actually do so, and restores the property worn out and ruined, it is held that
the Lex Aquilia will apply; and this, indeed, can also be stated where
the execution was levied in compliance with the law. Where, however, a
magistrate committed violence against a party who was resisting, he would not
be liable under the Lex Aquilia, for when one took a slave in execution
and the latter hanged himself, no action was granted.
(8) The words, "Whatever was the value during the last thirty days",
although the greatest value is not expressly stated, still it is established
that this should be understood.
30. Paulus, On the Edict, Book XXII.
Where anyone kills the slave of another who is caught in adultery he
will not be liable under this law.
(1) Where a slave given by way of pledge was afterwards killed, an
action will lie in favor of the debtor, whether the creditor is entitled to a
prætorian action on account of his interest in the slave, for the reason
that the debtor is not solvent; or because he has lost his right of action by
lapse of time, is a question. But it is unjust that the party should be liable
to both the owner and the creditor, unless someone might hold that the debtor,
in this instance, had not sustained any injury, since he had profited to the
amount of the debt, and anything above that amount he could recover from the
creditor; or, in the begin-
ning, an action will be granted to the debtor for any amount in excess
of the debt. Hence, in those instances in which an action should be granted to
the creditor on account of the poverty of the debtor, or because he has lost
his right of action, the creditor will be entitled to bring suit under the
Lex Aquilia for the amount of the debt, and this will benefit the debtor
to that extent; and an action under the Lex Aquilia will lie in favor of
the debtor for the amount of legal damages over and above the debt.
(2) Where anyone consumes wine or grain belonging to another he is not
held to have committed wrongful damage; and therefore a prætorian action
should be granted.
(3) In the action which arises out of this Section, malice and
negligence are punished. Therefore, where anyone sets fire to his stubble or
thorns for the purpose of burning them, and the fire increases and spreads so
as to injure the wheat or vines of another; we must ask whether this happened
through his want of skill, or his negligence; for if he did this on a windy day
he is guilty of negligence, as a person who affords an opportunity for the
commission of damage is considered to have caused it; and he is equally guilty
if he did not take precautions to prevent the fire from spreading. If, however,
he took all necessary precautions, or a sudden, violent gust of wind caused the
fire to spread, he is not guilty of negligence.
(4) Where a slave is wounded but not mortally, and dies from neglect, an
action can be brought for wounding, but not for killing him.
31. The Same, On Sabinus, Book X.
Where a trimmer of trees throws down a branch, or a man working on an
elevation kills a passer-by, he is only liable where he threw down the object
in a public place, and did not give warning, that the accident might be
avoided. Mucius, however, states that even if this happened on private
property, an action could be brought for negligence; because it is negligence
when provision was not made by taking such precautions as a diligent man would
have done, or warning was only given when the danger could not have been
avoided. On this principle it does not make much difference whether the party
injured was traversing public or private ground, since it very frequently
happens that many persons go through private ground. If there is no roadway
there, the party is only liable for malice where he throws something down on
anyone who is passing by; for he cannot be held accountable for negligence, as
he would be unable to conjecture whether anyone is going to pass through that
place or not.
32. Gaius, On the Provincial Edict, Book VII.
This question has been asked, namely: whether the same rule should be
observed in an action for wrongful damage which is adopted by the proconsul in
the case of theft committed by a number of slaves; (that is to say, whether the
right to the collection of the penalty should not be granted with reference to
every individual slave; but it will be sufficient for the amount to be made
good which would have to
be paid if a single freeman had committed the theft?) The better opinion
seems to be that the same rule should be observed, and there is reason in this;
for, as the principle which applies in an action for theft is that an owner
should not be deprived of his entire body of slaves on account of one offence;
the same principle should, in like manner, apply where an action is brought for
wrongful damage, and the same kind of valuation should be made, especially
since sometimes in an instance of this kind the offence is not of a serious
character; for example, where the damage was committed through negligence and
not through malice. (1) Where the same person wounds a slave and then
afterwards kills him, he is liable for both wounding and killing him; for there
are two offences.1 It is otherwise where anyone in the same attack
kills a slave by inflicting many wounds; for then only one action, that for
killing him, can be brought.
33. Paulus, On Plautius, Book II.
If you kill my slave, I do not think that my affection for him should be
considered; as, for instance, if anyone should kill your natural son whom you
would be willing to purchase at a high price if he belonged to someone else;
but the question involved is what is he worth generally speaking? Sextus Pedius
says that the price of property is not fixed by affection or by beneficial
interest, but on general principles; so that a man who has possession of his
natural son as a slave, is none the more wealthy because if someone else had
possession of him he would be willing to purchase him for a considerable sum of
money; and the party who has possession of the son of another has not property
enough to be equal to what he could sell that son for to his father; for under
the Lex Aquilia, we can recover damages, and we will be considered to
have lost either what we could have obtained, or what we were compelled to pay
(1) An action in factum is granted with reference to damages
which are not included in the Lex Aquilia.
34. Marcellus, Digest, Book XXI.
A party bequeathed Stichus to Titius and Seius, and while Seius was
deliberating and after Titius had brought suit to recover the legacy,
1 This is in direct contravention of the English and American
doctrine by which the lesser offence is considered to be merged in the greater
and only the more serious one can be made the subject of prosecution. The
English rule, however, that where a person is indicted for felony he cannot be
convicted of a misdemeanor, is not generally adopted in this country. Merger
cannot exist, however, unless the two breaches of the law are intimately
connected with one another with respect to place, time, and other conditions
rendering this association necessary. The distinction under the English law
owed the origin to the several restrictions placed upon the defendant accused
of felony which were not applicable in a trial for the commission of a
misdemeanor. An indicted felon could not employ an attorney, he had no right to
challenge a juryman, and he was even refused a copy of the indictment to which
he was required to answer. In many States of the Union a defendant, where proof
of felony is not conclusive, can, by permission of the court plead guilty of a
misdemeanor, but nowhere can he be tried for both degrees of crime under
separate indictments. — ED.
Stichus was killed, and then Seius rejected the legacy. In this instance
Titius can bring an action just as if the legacy had been bequeathed to him
35. Ulpianus, On the Edict, Book XVIII.
For the reason that the ownership is held to have accrued to him
36. Marcellus, Digest, Book XXI.
For as where an heir is entitled to an action when a legatee rejects a
legacy, just as if the slave had not been bequeathed; so Titius has a right of
action, just as if the slave had been left to him alone.
(1) Where the owner of a slave, whom Titius mortally wounded, orders by
his will that he shall be free and become his heir, and subsequently
Mævius becomes the heir to the slave, Mævius will not be entitled
to an action under the Lex Aquilia against Titius, according to the
opinion of Sabinus, who held that the right of action was not transmitted to
the heir where the deceased would not have been entitled to the right; but it
would truly seem to be absurd that an heir should obtain damages to the value
of the person killed, and whose heir he was. Where, however, the owner ordered
that he should be free and also be his heir to a part of his estate, then, when
he died, his co-heir can bring an action under the Lex Aquilia.
37. Javolenus, On Cassius, Book XIV.
Where a freeman committed an injury with his own hands by order of
another, an action under the Lex Aquilia can be brought against the
party who gave the order; provided he had the right of commanding; but if he
did not have it, proceedings must be instituted against the party who committed
(1) Where a quadruped, on account of which a right of action exists
against its owner because it has committed damage, is killed by another party
against whom suit is then brought under the Lex Aquilia, the estimation
of the value of said animal must be made, not with reference to what it is
actually worth, but to the circumstances under which the right of action for
damages exists; and the party who killed the animal must have judgment rendered
against him in a suit under the Lex Aquilia to the amount of the
interest the plaintiff had to settle the case through surrendering the animal
by way of reparation, rather than by paying the damages which have been
38. The Same, Epistles, Book IX.
If at the time when my slave whom you purchased in good faith is serving
you, he is wounded by one of your slaves; it has been held that I have, in
every instance, a right to institute proceedings against you under the Lex
39. Pomponius, On Quintus Mucius, Book XVII.
Quintus Mucius says that while a mare was pasturing on the land of
another she lost her foal, when the owner of the land was driving her
away; and the question was asked whether or not the owner of the mare
could proceed under the Lex Aquilia against the party who had driven her
away, because he had injured the mare by striking her? And it was held that if
he struck her, or designedly drove her away with too much violence, he can
(1) Pomponius. Even though anyone should find the cattle of another on
his own land, he must drive them away in the same manner as he would his own;
since, if he has sustained any damage on account of their being there he has a
suitable right of action. Therefore, where anyone finds the cattle of another
on his own premises, he cannot lawfully shut them up, nor should he drive them
away in any other manner than if they were his own (as we stated above) but he
must either drive them away without injuring them, or notify the owner to
40. Paulus, On the Edict, Book III.
Under the Lex Aquilia, if I allege that a note belonging to me,
and in which it was stated that a sum of money was owing to me under a
condition, has been defaced; and, in the meantime, I am able to prove this by
witnesses who may be unable to testify at the time when the condition is
fulfilled, and I state the facts in a few words in court and establish this to
the satisfaction of the judge, I ought to succeed; but the payment of the sum
for which judgment is rendered can only take place when the condition upon
which the debt depended shall be complied with; and if it should fail, the
judgment will have no force or effect.
41. Ulpianus, On Sabinus, Book XLI.
Where anyone defaces a will, let us consider whether an action for
wrongful damage will not lie? Marcellus states with some hesitation in the
Fifth Book of the Digest, that the action cannot be brought; for he asks in
what way can the amount of damages be ascertained? I made a note on Marcellus
that this is indeed true with reference to the testator, because no estimate
can be made of his interest in the matter; but with reference to the heir or
legatees the case is different, since, so far as they are concerned, a will is
almost the same as a written acknowledgment of a debt; and Marcellus also says
that where a promissory note is defaced by erasure, an action under the Lex
Aquilia will lie.
Moreover, if anyone should destroy a will deposited with him, or should
read the same in the presence of several persons, it is more advisable for an
action in factum — and for injury as well — to be brought if
the party published the secret provisions of the will for the purpose of
committing a wrong.
(1) Pomponius very properly states that it sometimes happens that a
party by destroying a will does not become liable for theft, but only for the
commission of injury, for instance where he did not destroy it with the
intention of committing a theft, but only to cause damage; for then he will not
be liable for theft, since theft involves not only the act of stealing but the
42. Julianus, Digest, Book XLVIII.
Where anyone so defaces a will which has been deposited with him (or any
other instrument for the conveyance of property) so that it cannot be read, he
will be liable to an action on deposit, and also to one for the production of
an instrument in court, because he either returned or produced the document in
a ruined condition. An action under the Lex Aquilia will also lie in a
case of this kind, for where a party falsifies documents, he is very properly
said to have ruined them.
43. Pomponius, On Sabinus, Book XIX.
You are entitled to an action under the Lex Aquilia on account of
damage committed against an estate before you entered upon it as heir, even
though this took place after the death of the party whose heir you are; for the
Lex Aquilia designates as owner not merely the person who was so at the
time when the damage was committed; for under these circumstances the right of
action could not pass to him from the party whose heir he was, since this would
be the same case as where you have been in the power of the enemy and, having
returned, can not bring suit under the right of postliminium for what
had taken place during your captivity; and no other rule than this can be
established without great disadvantage to posthumous children who become the
heirs of their parents.
We hold that the same rule applies with reference to trees which have
been cut by stealth during the same time. I am of the opinion that this also
applies to the proceeding Quod vi aut clam, provided the party committed
the act after he had been notified not to do so, or it is apparent that he
should have known that he would have been notified by the parties to whom the
estate belonged if they had been aware of what he was going to do.
44. Ulpianus, On Sabinus, Book XLII.
Under the Lex Aquilia the slightest negligence is taken in
(1) Whenever a slave wounds or kills anyone, there is no doubt that his
owner is liable under the Lex Aquilia.
45. Paulus, On Sabinus, Book X.
In this instance we understand knowledge to signify sufferance, so that
where the party is able to prevent the act, and does not do so, he will be
(1) Proceedings can be brought under the Lex Aquilia where a
wounded slave is cured.
(2) If you kill my slave being under the impression that he is free, you
will be liable under the Lex Aquilia.
(3) Where two slaves leap over burning straw and collide with one
another, and both fall and one is burned to death; in this instance an action
cannot be brought where it is not known which of them was overthrown by the
(4) Where parties commit damage because they could not otherwise protect
themselves, they are guiltless; for all laws and all legal principles permit
persons to repel force by force. But if I throw a stone at an adversary for the
purpose of defending myself, and I do not hit him but do hit a passer-by, I
will be liable under the Lex Aquilia; for you are only permitted to
strike a person who is attacking you, and this solely where you do so in
defending yourself, and not where it is done for the purpose of revenge.
(5) Where a party removes a wall which is useful, he is liable to the
owner of the same for wrongful damage.
46. Ulpianus, On Sabinus, Book L.
If, where a slave is wounded, an action is brought under the Lex
Aquilia, and the slave afterwards dies of the wound, an action can still be
brought under the Lex Aquilia.
47. Julianus, Digest, Book LXXXVI.
But if in the first suit an estimate of his value was made, and
afterwards the slave should die, his owner can bring an action for killing him,
and if he is met with an exception based on malicious fraud, measures should be
taken to prevent the plaintiff from recovering more by both suits than he would
have obtained if he had in the beginning brought an action for killing the
48. Paulus, On the Edict, Book XXXIX.
If a slave should commit damage to an estate before it had been entered
upon, and, after having been liberated, he should cause other damage to the
property, he will be liable to both actions, because these things have
reference to two different acts.
49. Ulpianus, Disputations, Book IX.
Where anyone drives away bees belonging to another or even kills them by
means of making smoke, he is held rather to have furnished the cause of their
death than to have actually killed them, and therefore he will be liable to an
action in factum.
(1) Where it is stated that wrongful damage can be prosecuted under the
Lex Aquilia, this must be understood to mean that wrongful damage was
committed when wrong was done together with damage, unless the act was
committed under the compulsion of overpowering force; as Celsus states with
reference to a party who destroyed an adjoining house for the purpose of
controlling a fire; for in this instance he says that no action will lie under
the Lex Aquilia, because the man destroyed the adjoining house being
impelled by a just apprehension that the fire might reach his premises, and
whether the fire did so or whether it was previously extinguished, he thinks
that an action under the Lex Aquilia cannot be brought.
50. The Same, Opinions, Book VI.
Where a party demolishes the house of another without the consent of the
owner, and builds baths on the site, then, irrespective of natural
law, which declares that the surface belongs to the owner of the soil,
the aggressor will be liable to an action on account of damage caused.
51. Julianus, Digest, Book LXXXVI.
A slave was so seriously wounded that it was certain that he would die
from the blow; but, in the meantime, he was appointed an heir, and afterwards
died from a blow inflicted by another. I ask whether an action for causing his
death can be brought under the Lex Aquilia against both the parties who
injured him? The answer was that anyone is ordinarily said to have killed who
in any way furnished the cause of death; but under the Lex Aquilia he
alone is held to be liable who furnished the cause of death by actual violence,
and, as it were, with his own hand, the interpretation of the word
"occidere" being derived from the terms "cædere" and
Moreover, not only those who have wounded a slave so badly as to
immediately deprive him of life are held to be liable under the Lex Aquilia,
but also those who have inflicted such a wound that it is certain that the
slave will die hereafter. Therefore, where anyone inflicts a mortal wound upon
a slave, and another, before his death, strikes him in such a way that he dies
sooner than he otherwise would as the result of a first wound, it should be
held that both offenders are liable under the Lex Aquilia.
(1) This agrees with the opinion of the ancient authorities, who, where
a slave was badly wounded by several persons and it was not ascertained by
whose blow he died; it has been decided that all of them are liable under the
(2) The damages for causing death will not be the same for both parties
in this instance; for the one who first wounded him must pay an amount equal to
the greatest value of the slave during the past year; and this is ascertained
by computing three hundred and sixty five days from the date of the wound. The
second one would be liable for an amount equal to the largest sum which the
slave would have brought during the year before the day on which he died, and
this will also include the value of the estate. Hence one of them will pay a
larger amount and the other a smaller amount for having killed the same slave;
and there is nothing surprising in this, since both parties are held to have
killed the slave in different ways and at different times.
If anyone should think that this decision of ours is absurd, let him
reflect that it would be still more absurd for it to be held that neither of
the parties was liable under the Lex Aquilia, or that one of them was
more liable than the other; since offences must not go unpunished; nor is it
easy to determine which one is more liable under the law. For numerous rules
have been established by the Civil Law for the public welfare which are at
variance with the principles of reasoning, as can be proved by innumerable
examples; and I shall be content with referring to only one of them. Where
several persons carry away a beam belonging to another with the intention of
stealing it, which they could not have done singly, they are all held to be
liable to an action for theft; although by
an ingenious argument not one of them can be said to be liable because
it is true that not one of them carried off the beam.
52. Alfenus, Digest, Book II.
Where a slave dies from the effect of blows, and this is not the result
of the ignorance of a physician or of the neglect of the owner, an action for
injury can be brought for his death.
(1) The keeper of a shop placed his lantern on a stone in a street at
night, and a passer-by took it away; the shopkeeper followed him and demanded
the lantern, and detained the party as he was trying to escape. The latter
began to strike the shopkeeper with a whip which he held in his hand and to
which an iron was attached, in order to compel him to release his hold. The
struggle having become more serious, the shopkeeper knocked out the eye of the
party who had taken away his lantern, and he asked for an opinion whether he
could not be considered not to have inflicted unlawful damage, as he had been
first struck with a whip? I answered that unless he had knocked out his eye
designedly he would not be considered to have caused unlawful damage, because
the party who first struck him with the whip was to blame; but if he had not
first been beaten, but had fought with the party who is trying to take the
lantern from him, the shopkeeper must be held to be responsible for
(2) Mules were hauling two loaded wagons up the Capitoline Hill, and the
drivers were pushing the first wagon which was inclined to one side in order
that the mules might haul it more easily; in the meantime the upper wagon began
to go back, and as the drivers were between the two wagons they withdrew, and
the last wagon was struck by the first and moved back, crushing a slave boy who
belonged to someone. The owner of the boy asked me against whom he ought to
bring an action? I answered that it depended upon circumstances, for if the
drivers who had hold of the first wagon voluntarily got out of the way, and the
result was that the mules could not hold the wagon and were pulled back by its
weight, then no action would lie against the owner of the mules, but an action
under the Lex Aquilia could be brought against the men who had hold of
the wagon; for if a party, while he was supporting something, by voluntarily
releasing his hold enabled it to strike someone, he, nevertheless, committed
damage; as for instance, where anyone was driving an ass and did not restrain
it; or where anyone were to discharge a weapon, or throw some other object out
of his hand.
But if the mules gave way because they were frightened, and the drivers,
actuated by fear of being crushed, released their hold on the wagon, then no
action can be brought against the men but one could be brought against the
owner of the mules. And if neither the mules nor the men were the cause of the
accident, but the mules could not hold the load, or while striving to do so
slipped and fell, and this caused the wagon to go back, and the men were unable
to support the weight when the wagon was inclined to one side, then no action
could be brought either against the owner of the mules or the men. This,
however, is certain, that no matter what the circumstances were, no action
against the owner of the mules which were in the rear, as they did not
go back voluntarily, but because they were struck.
(3) A certain man sold some oxen under the condition that he would
permit the purchaser to try them, and he afterwards delivered them to be tried;
and a slave of the purchaser while trying them was struck with the horn of one
of the oxen. The question arose whether the vendor must pay damages to the
purchaser? I answered that if the purchaser held the oxen as already purchased,
he would not be compelled to pay; but if he had not obtained them with that
understanding, then, if through the slave's negligence he was wounded by the
ox, damages would not have to be paid, but if it was due to the viciousness of
the ox, they would be.
(4) Where several persons were playing ball, one of them pushed a small
slave while he was trying to pick up the ball, and the slave fell and broke his
leg. The question arose whether the owner of the slave could bring suit under
the Lex Aquilia against the party who, by pushing him, had caused him to
fall. I answered that he could not, as this seemed to have been done rather
through accident than through negligence.
53. Neratius, Parchments, Book I.
You drove oxen belonging to another into a narrow place which caused
them to be thrown to the ground and injured. An action resembling that brought
under the Lex Aquilia will be granted against you.
54. Papinianus, Questions, Book XXXVII.
A debtor is entitled to an action under the Lex Aquilia where a
party who stipulated for delivery, and before default of the debtor, wounds the
animal which was promised; and the same rule applies if he should kill it. But
where the party who stipulated kills the animal after the default of the
promisor, the debtor will undoubtedly be discharged; but in this instance he
will not have a right to institute proceedings under the Lex Aquilia,
since the creditor must be held rather to have injured himself rather than
55. Paulus, Questions, Book XXII.
I promised Titius to give him either Stichus or Pamphilus, Stichus being
worth ten thousand sesterces and Pamphilus twenty; and the stipulator killed
Stichus before I was in default. The question arose as to whether an action
could be brought under the Lex Aquilia? I answered that as it has been
stated that the least valuable slave has been killed, what is to be discussed
in this case does not in any way differ from that between a creditor and a
stranger. What then will be the measure of damages? Must it be ten thousand
sesterces which is the value of the slave that was killed, or must it be the
amount which I must pay, that is the amount of my interest? And what shall we
say if Pamphilus were to die without any default on my part? Will the price of
Stichus be diminished since the promisor is discharged? It will be sufficient
to state that the value of the slave was greater when he was killed,
or within the year. On this principle Stichus must be considered to have
been worth more, even if he were killed after the death of Pamphilus, but
within the year.
56. The Same, Sentences, Book II.
If a woman damages the property of her husband, an action can be brought
against her according to the terms of the Lex Aquilia.
57. Javolenus, On the Last Works of Labeo, Book VI.
I lent you a horse and while you were riding it several others were
riding with you, and one of them ran against your horse and threw you off, and
the legs of your horse were broken in consequence of the accident. Labeo states
that no action can be brought against you, but if the accident took place
through the negligence of the rider he can be sued, but suit cannot be brought
against the owners of the horse; and I think this is correct.