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Dig. 9.3.0. De his, qui effuderint vel deiecerint.
9.2.0. On the Aquilian law.
Dig. 9.3.0. Concerning those who have poured out or thrown down.
Itaque, ut servius scribit, tunc haec actio locum habet, cum commota feritate nocuit quadrupes, puta si equus calcitrosus calce percusserit, aut bos cornu petere solitus petierit, aut mulae propter nimiam ferociam: quod si propter loci iniquitatem aut propter culpam mulionis, aut si plus iusto onerata quadrupes in aliquem onus everterit, haec actio cessabit damnique iniuriae agetur.
And so, as servius writes, then this action has place when, its ferocity aroused, a quadruped has caused harm, for instance if a kicking horse struck with a kick, or an ox accustomed to attack with its horn attacked, or mules by reason of excessive ferocity: but if on account of the iniquity of the place or on account of the fault of the muleteer, or if a quadruped loaded more than is just has overturned its load upon someone, this action will cease and suit for wrongful damage will be brought.
Sed et si canis, cum duceretur ab aliquo, asperitate sua evaserit et alicui damnum dederit: si contineri firmius ab alio poterit vel si per eum locum induci non debuit, haec actio cessabit et tenebitur qui canem tenebat.
But also, if a dog, while it was being led by someone, escaped by its own asperity and gave someone damage: if it could have been more firmly restrained by that person, or if it ought not to have been led through that place, this action will cease, and he who was holding the dog will be held liable.
Et generaliter haec actio locum habet, quotiens contra naturam fera mota pauperiem dedit: ideoque si equus dolore concitatus calce petierit, cessare istam actionem, sed eum, qui equum percusserit aut vulneraverit, in factum magis quam lege aquilia teneri, utique ideo, quia non ipse suo corpore damnum dedit. at si, cum equum permulsisset quis vel palpatus esset, calce eum percusserit, erit actioni locus.
And generally this action has a place whenever a wild beast, moved contrary to its nature, has caused loss: and therefore, if a horse, stirred by pain, has attacked with a kick, this action ceases to lie; but the one who struck or wounded the horse is held liable by an in factum action rather than under the Lex Aquilia, specifically because he did not himself, with his own body, cause the damage. But if, when someone had stroked the horse or it had been gently patted, it struck him with a kick, there will be room for the action.
Cum arietes vel boves commisissent et alter alterum occidit, quintus mucius distinxit, ut si quidem is perisset qui adgressus erat, cessaret actio, si is, qui non provocaverat, competeret actio: quamobrem eum sibi aut noxam sarcire aut in noxam dedere oportere.
When rams or oxen had come into collision and one killed the other, Quintus Mucius distinguished as follows: if indeed the one who had aggressed had perished, the action would cease; if the one who had not provoked had perished, the action would lie; wherefore he must either make satisfaction for the noxa to him or surrender in noxam.
Si post litem contestatam ab alio sit animal occisum, quia domino legis aquiliae actio competit, ratio in iudicio habebitur legis aquiliae, quia dominus noxae dedendae facultatem amiserit: ergo ex iudicio proposito litis aestimationem offeret, nisi paratus fuerit actionem mandare adversus eum qui occidit.
If, after issue has been joined, the animal is killed by someone else, since an action under the Aquilian law is competent to the owner, regard in the judgment will be had to the Aquilian law, because the owner has lost the faculty of noxal surrender; therefore, under the proposed formula he will tender the valuation of the suit, unless he is ready to assign (by mandate) the action against the one who killed it.
Ex hac lege iam non dubitatur etiam liberarum personarum nomine agi posse, forte si patrem familias aut filium familias vulneraverit quadrupes: scilicet ut non deformitatis ratio habeatur, cum liberum corpus aestimationem non recipiat, sed impensarum in curationem factarum et operarum amissarum quasque amissurus quis esset inutilis factus.
By this law it is now not doubted that action can also be brought in the name of free persons, for instance if a quadruped has wounded a paterfamilias or a filiusfamilias: namely, that no account is taken of disfigurement, since a free body does not receive estimation, but only of the expenses incurred for curation and of the services lost and whatever one would be about to lose by having been rendered incapacitated.
Ut igitur apparet, servis nostris exaequat quadrupedes, quae pecudum numero sunt et gregatim habentur, veluti oves caprae boves equi muli asini. sed an sues pecudum appellatione continentur, quaeritur: et recte labeoni placet contineri. sed canis inter pecudes non est.
As therefore it appears, he equates with our slaves the quadrupeds which are in the number of “pecudes” and are kept in herds, such as sheep, goats, oxen, horses, mules, asses. But whether swine are included under the appellation of “pecudes” is asked; and rightly it pleases Labeo that they are included. But the dog is not among the “pecudes”.
Sed et si quemcumque alium ferro se petentem quis occiderit, non videbitur iniuria occidisse: et si metu quis mortis furem occiderit, non dubitabitur, quin lege aquilia non teneatur. sin autem cum posset adprehendere, maluit occidere, magis est ut iniuria fecisse videatur: ergo et cornelia tenebitur.
But also, if someone kills any other person who is attacking him with steel, he will not be seen to have killed wrongfully: and if someone kills a thief from fear of death, it will not be doubted that he is not held by the Aquilian law. But if, when he could have apprehended him, he preferred to kill, it is rather that he appears to have acted wrongfully: therefore he will also be held under the Cornelian law.
Iniuriam autem hic accipere nos oportet non quemadmodum circa iniuriarum actionem contumeliam quandam, sed quod non iure factum est, hoc est contra ius, id est si culpa quis occiderit: et ideo interdum utraque actio concurrit et legis aquiliae et iniuriarum, sed duae erunt aestimationes, alia damni, alia contumeliae. igitur iniuriam hic damnum accipiemus culpa datum etiam ab eo, qui nocere noluit.
However, here we ought to take “injury” not, as in the action for injuries, as a certain contumely, but as what has been done not by right—that is, against law—that is, if someone has killed through fault; and therefore sometimes both actions concur, both under the Lex Aquilia and for injuries, but there will be two assessments, one of damage, the other of contumely. Therefore, here we will take “injury” as damage given through fault, even by one who did not wish to harm.
Therefore the Aquilian action will cease, just as, if a quadruped has given damage, the Aquilian [action] ceases, or if a roof-tile has fallen. But even if an infant has given damage, the same must be said. But if an under-age (prepubescent) person has done it, Labeo says that, because he is liable for theft, he is held under the Aquilian law as well; and I think this true, if he is already capable of injury (iniuria).
Si magister in disciplina vulneraverit servum vel occiderit, an aquilia teneatur, quasi damnum iniuria dederit? et iulianus scribit aquilia teneri eum, qui eluscaverat discipulum in disciplina: multo magis igitur in occiso idem erit dicendum. proponitur autem apud eum species talis: sutor, inquit, puero discenti ingenuo filio familias, parum bene facienti quod demonstraverit, forma calcei cervicem percussit, ut oculus puero perfunderetur. dicit igitur iulianus iniuriarum quidem actionem non competere, quia non faciendae iniuriae causa percusserit, sed monendi et docendi causa: an ex locato, dubitat, quia levis dumtaxat castigatio concessa est docenti: sed lege aquilia posse agi non dubito:
If a teacher, in the course of discipline, has wounded a slave or has killed him, is he to be held under the Aquilian law, as though he had given wrongful damage? And Julianus writes that one is held by the Aquilian law who had put out a pupil’s eye in discipline: much more, therefore, in the case of one killed the same must be said. Moreover, a case of this sort is set forth by him: “A cobbler,” he says, “to a boy learning—an ingenuous son under paternal power—because he was not doing very well what had been shown to him, struck his neck with the form of a shoe (a last), so that the boy’s eye was suffused.” Therefore Julianus says that an action for insults (iniuriae) does not lie, because he struck not for the sake of doing an insult, but for the sake of admonishing and teaching; whether an action from hire (ex locato) lies, he is in doubt, because only a light chastisement is permitted to the teacher: but that one can sue under the Aquilian law I do not doubt.
Sed si quis plus iusto oneratus deiecerit onus et servum occiderit, aquilia locum habet: fuit enim in ipsius arbitrio ita se non onerare. nam et si lapsus aliquis servum alienum onere presserit, pegasus ait lege aquilia eum teneri ita demum, si vel plus iusto se oneraverit vel neglegentius per lubricum transierit.
But if someone, burdened more than is just, has cast down the load and has killed a slave, the Aquilian [action] has place: for it was within his own discretion not to burden himself thus. For even if by some slip he has pressed/crushed another’s slave with the load, Pegasus says that he is held by the Aquilian law only then, if either he has burdened himself more than is just, or has gone more negligently through a slippery place.
Proinde si quis alterius impulsu damnum dederit, proculus scribit neque eum qui impulit teneri, quia non occidit, neque eum qui impulsus est, quia damnum iniuria non dedit: secundum quod in factum actio erit danda in eum qui impulit.
Accordingly, if someone has caused damage by the impulse of another, Proculus writes that neither he who impelled is held liable, because he did not kill, nor he who was impelled, because he did not give the damage wrongfully: according to which an in factum action will be granted against him who impelled.
Si quis in colluctatione vel in pancratio, vel pugiles dum inter se exercentur alius alium occiderit, si quidem in publico certamine alius alium occiderit, cessat aquilia, quia gloriae causa et virtutis, non iniuriae gratia videtur damnum datum. hoc autem in servo non procedit, quoniam ingenui solent certare: in filio familias vulnerato procedit. plane si cedentem vulneraverit, erit aquiliae locus, aut si non in certamine servum occidit, nisi si domino committente hoc factum sit: tunc enim aquilia cessat.
If someone in wrestling or in the pankration, or if, while the pugilists are exercising among themselves, one kills the other—if indeed in a public contest one kills the other, the Aquilian action is inapplicable, because the loss is seen to have been inflicted for the sake of glory and of virtue, not for the sake of injury. This, however, does not hold in the case of a slave, since freeborn men are the ones accustomed to compete; it does apply if a son-in-power (filius familias) is wounded. Clearly, if he wounds one who is yielding, there will be room for the Aquilian action; or if he kills a slave not in the contest—unless this was done with the master authorizing it: for then the Aquilian action is inapplicable.
Celsus autem multum interesse dicit, occiderit an mortis causam praestiterit, ut qui mortis causam praestitit, non aquilia, sed in factum actione teneatur. unde adfert eum qui venenum pro medicamento dedit et ait causam mortis praestitisse, quemadmodum eum qui furenti gladium porrexit: nam nec hunc lege aquilia teneri, sed in factum.
Celsus, moreover, says that it makes much difference whether one killed, or provided the cause of death, such that he who provided the cause of death is held liable not by the Aquilian action, but by an action in factum. Whence he adduces the case of a man who gave poison in place of a medicament and says that he provided the cause of death, just as the one who handed a sword to a madman: for neither is this man held under the Aquilian law, but under an action in factum.
Idem iuris est, si medicamento perperam usus fuerit. sed et qui bene secuerit et dereliquit curationem, securus non erit, sed culpae reus intellegitur. mulionem quoque, si per imperitiam impetum mularum retinere non potuerit, si eae alienum hominem obtriverint, volgo dicitur culpae nomine teneri.
The same rule of law holds, if he has used a medicament wrongly. But even one who has cut well and has abandoned the treatment will not be free from liability, but is understood to be guilty of fault. A muleteer too, if through inexperience he has not been able to restrain the rush of the mules, if they crush a man belonging to another, is commonly said to be held under the name of fault.
the same is said also if on account of infirmity he could not withstand the impetus of the mules: nor does it seem inequitable if infirmity is reckoned to fault, since no one ought to undertake that in which he either understands or ought to understand that his own infirmity will be dangerous to another. the same law holds in the case of the person who, because of inexperience or infirmity, will not be able to restrain the impetus of the horse on which he was riding.
Item si obstetrix medicamentum dederit et inde mulier perierit, labeo distinguit, ut, si quidem suis manibus supposuit, videatur occidisse: sin vero dedit, ut sibi mulier offerret, in factum actionem dandam, quae sententia vera est: magis enim causam mortis praestitit quam occidit.
Likewise, if a midwife has given a medicament and from it the woman has perished, Labeo makes a distinction: if indeed she inserted it with her own hands, she is to be regarded as having killed; but if she gave it so that the woman might apply it to herself, an action in factum is to be given, which opinion is true: for she rather furnished the cause of death than killed.
Si servum meum equitantem concitato equo effeceris in flumen praecipitari atque ideo homo perierit, in factum esse dandam actionem ofilius scribit: quemadmodum si servus meus ab alio in insidias deductus, ab alio esset occisus.
If you should cause my slave, while riding, the horse having been spurred on, to be cast headlong into a river, and for that reason the man has perished, Ofilius writes that an action in factum is to be given: just as if my slave had been led into an ambush by one person and had been killed by another.
Sed si per lusum iaculantibus servus fuerit occisus, aquiliae locus est: sed si cum alii in campo iacularentur, servus per eum locum transierit, aquilia cessat, quia non debuit per campum iaculatorium iter intempestive facere. qui tamen data opera in eum iaculatus est, utique aquilia tenebitur:
But if, with men hurling for sport, a slave has been killed, there is room for the Aquilian action: but if, when others were hurling in a field, the slave passed through that place, the Aquilian action falls away, because he ought not to have made a journey inopportunely through a javelin-field. He, however, who with set purpose hurled at him will certainly be held under the Aquilian action:
Item mela scribit, si, cum pila quidam luderent, vehementius quis pila percussa in tonsoris manus eam deiecerit et sic servi, quem tonsor habebat, gula sit praecisa adiecto cultello: in quocumque eorum culpa sit, eum lege aquilia teneri. proculus in tonsore esse culpam: et sane si ibi tondebat, ubi ex consuetudine ludebatur vel ubi transitus frequens erat, est quod ei imputetur: quamvis nec illud male dicatur, si in loco periculoso sellam habenti tonsori se quis commiserit, ipsum de se queri debere.
Likewise Mela writes: if, when certain men were playing at ball, someone, the ball having been struck more violently, knocked it down into the barber’s hands, and thus the slave whom the barber had had his throat cut, the razor having been applied—whichever of them is at fault, he is held liable under the Aquilian Law. Proculus says that the fault is in the barber; and indeed, if he was shaving in a place where, by custom, people played, or where there was frequent passage, there is something to be imputed to him; although this too is not ill said: if someone has entrusted himself to a barber who has his chair in a dangerous place, he ought to have a complaint against himself.
Sed si plures servum percusserint, utrum omnes quasi occiderint teneantur, videamus. et si quidem apparet cuius ictu perierit, ille quasi occiderit tenetur: quod si non apparet, omnes quasi occiderint teneri iulianus ait, et si cum uno agatur, ceteri non liberantur: nam ex lege aquilia quod alius praestitit, alium non relevat, cum sit poena.
But if several have struck a slave, let us consider whether all are to be held as if they had killed. And if indeed it is apparent by whose blow he perished, that man is held as if he killed: but if it is not apparent, Julian says that all are to be held as if they killed, and if action is brought with one, the others are not freed: for under the Aquilian law what one has paid does not relieve another, since it is a penalty.
Celsus scribit, si alius mortifero vulnere percusserit, alius postea exanimaverit, priorem quidem non teneri quasi occiderit, sed quasi vulneraverit, quia ex alio vulnere periit, posteriorem teneri, quia occidit. quod et Marcello videtur et est probabilius.
Celsus writes that, if one person has struck with a mortal wound, and another afterwards has exanimated him, the former indeed is not held as if he had killed, but as if he had wounded, because he perished from another wound; the latter is held, because he killed. Which also seems so to Marcellus and is more probable.
Item cum eo, qui canem irritaverat et effecerat, ut aliquem morderet, quamvis eum non tenuit, proculus respondit aquiliae actionem esse: sed iulianus eum demum aquilia teneri ait, qui tenuit et effecit ut aliquem morderet: ceterum si non tenuit, in factum agendum.
Likewise, as to the one who had provoked a dog and brought it about that it should bite someone, although he did not hold it, Proculus responded that an action under the Aquilian [law] lies; but Julian says that only he is held by the Aquilian [action] who held it and brought it about that it should bite someone; otherwise, if he did not hold it, one must proceed by an action in factum.
Sed et si proprietatis dominus vulneraverit servum vel occiderit, in quo usus fructus meus est, danda est mihi ad exemplum legis aquiliae actio in eum pro portione usus fructus, ut etiam ea pars anni in aestimationem veniat, qua nondum usus fructus meus fuit.
But also, if the owner of the property has wounded a slave or has killed him, in whom I have a usufruct, an action on the model of the Lex Aquilia must be granted to me against him for the proportion of the usufruct, so that that part of the year also may come into the valuation in which my usufruct had not yet existed.
Si servus hereditarius occidatur, quaeritur, quis aquilia agat, cum dominus nullus sit huius servi. et ait celsus legem domino damna salva esse voluisse: dominus ergo hereditas habebitur. quare adita hereditate heres poterit experiri.
If a slave belonging to an inheritance is killed, the question is raised: who brings the Aquilian action, since this slave has no owner? And Celsus says that the law wished the damages to be preserved for the owner: therefore the inheritance (estate) will be held to be the owner. Wherefore, once the inheritance has been entered upon, the heir will be able to sue.
Si servus legatus post aditam hereditatem sit occisus, competere legis aquiliae actionem legatario, si non post mortem servi adgnovit legatum: quod si repudiavit, consequens esse ait iulianus dicere heredi competere.
If a slave bequeathed as a legacy, after the inheritance has been entered upon, has been killed, the action of the Aquilian law belongs to the legatee, provided that he did not acknowledge the legacy after the slave’s death; but if he repudiated it, Julian says it is consequent to say that it belongs to the heir.
Huic scripturae consequens est dicere, ut, si ante aditam hereditatem occidatur legatus servus, apud heredem remaneat aquiliae actio per hereditatem adquisita. quod si vulneratus sit ante aditam hereditatem, in hereditate quidem actio remansit, sed cedere ea legatario heredem oportet.
It is consequent upon this writing to say that, if before the inheritance is entered upon the slave bequeathed as a legacy is killed, the Aquilian action, acquired through the inheritance, remains with the heir. But if he was wounded before the inheritance was entered upon, the action indeed remained in the inheritance, but the heir ought to cede it to the legatee.
Si servus vulneratus mortifere postea ruina vel naufragio vel alio ictu maturius perierit, de occiso agi non posse, sed quasi de vulnerato, sed si manumissus vel alienatus ex vulnere periit, quasi de occiso agi posse iulianus ait. haec ita tam varie, quia verum est eum a te occisum tunc cum vulnerabas, quod mortuo eo demum apparuit: at in superiore non est passa ruina apparere an sit occisus. sed si vulneratum mortifere liberum et heredem esse iusseris, deinde decesserit, heredem eius agere aquilia non posse,
If a slave, wounded mortally, later perishes the sooner by a collapse or shipwreck or some other blow, one cannot sue as for a slain man, but as if for a wounded man; but if, having been manumitted or alienated, he perished from the wound, Julian says one can sue as for a slain man. These matters are thus stated so variously, because it is true that he was slain by you at the time when you were wounding, which only appeared once he had died: but in the former case the collapse did not allow it to appear whether he was slain. But if you have ordered that a man mortally wounded be free and heir, and then he has died, his heir cannot bring the Aquilian action,
Item causae corpori cohaerentes aestimantur, si quis ex comoedis aut symphoniacis aut gemellis aut quadriga aut ex pari mularum unum vel unam occiderit: non solum enim perempti corporis aestimatio facienda est, sed et eius ratio haberi debet, quo cetera corpora depretiata sunt.
Likewise, causes adhering to the body are assessed, if someone has killed one, whether male or female, from among comedians or symphoniaci (musicians) or twins or a quadriga (four-horse team) or from a pair of mules: for not only must the valuation of the slain body be made, but account also ought to be taken of the extent to which the remaining bodies have been depreciated.
Iulianus ait, si servus liber et heres esse iussus occisus fuerit, neque substitutum neque legitimum actione legis aquiliae hereditatis aestimationem consecuturum, quae servo competere non potuit: quae sententia vera est. pretii igitur solummodo fieri aestimationem, quia hoc interesse solum substituti videretur: ego autem puto nec pretii fieri aestimationem, quia, si heres esset, et liber esset.
Julian says that, if a slave who was ordered to be free and heir has been killed, neither the substitute nor the legitimate heir will obtain by an action of the Lex Aquilia an estimation of the inheritance, which could not be competent to a slave: which opinion is true. Therefore only an estimation of the price should be made, because this alone would seem to be the interest of the substitute; but I, however, think that not even an estimation of the price should be made, because, if he were heir, he would also be free.
Idem iulianus scribit, si institutus fuero sub condicione " si stichum manumisero" et stichus sit occisus post mortem testatoris, in aestimationem etiam hereditatis pretium me consecuturum: propter occisionem enim defecit condicio: quod si vivo testatore occisus sit, hereditatis aestimationem cessare, quia retrorsum quanti plurimi fuit inspicitur.
The same Julian writes: if I have been instituted under the condition “if I manumit Stichus,” and Stichus is killed after the testator’s death, I shall also obtain, in the valuation of the inheritance, the price; for by reason of the killing the condition has failed. But if he was killed while the testator was alive, the valuation of the inheritance ceases, because one looks back to how much at the highest he had been worth.
Idem iulianus scribit aestimationem hominis occisi ad id tempus referri, quo plurimi in eo anno fuit: et ideo et si pretioso pictori pollex fuerit praecisus et intra annum, quo praecideretur, fuerit occisus, posse eum aquilia agere pretioque eo aestimandum, quanti fuit priusquam artem cum pollice amisisset.
The same Julian writes that the valuation of a slain man is to be referred to that time at which, in that year, he was worth the most; and therefore, even if the thumb of a high‑priced painter has been cut off and, within the year in which it was cut off, he has been killed, he can bring an Aquilian action, and he is to be appraised at that price at which he was before he had lost his art along with his thumb.
Sed et si servus, qui magnas fraudes in meis rationibus commiserat, fuerit occisus, de quo quaestionem habere destinaveram, ut fraudium participes eruerentur, rectissime labeo scribit tanti aestimandum, quanti mea intererat fraudes servi per eum commissas detegi, non quanti noxa eius servi valeat.
But also, if a slave who had committed great frauds in my accounts has been killed—about whom I had intended to hold an inquest, so that the participants in the frauds might be unearthed—Labeo most rightly writes that it should be assessed at as much as it was in my interest that the frauds committed by that slave be uncovered, not at how much that slave’s noxal liability would be worth.
Si quis hominem vivum falso confiteatur occidisse et postea paratus sit ostendere hominem vivum esse, iulianus scribit cessare aquiliam, quamvis confessus sit se occidisse: hoc enim solum remittere actori confessoriam actionem, ne necesse habeat docere eum occidisse: ceterum occisum esse hominem a quocumque oportet.
If someone falsely confesses that he has killed a living man and afterward is prepared to show that the man is alive, Julian writes that the Aquilian action ceases, although he has confessed that he killed: for this confession grants to the plaintiff only the confessorial action, so that he need not have to prove that he killed him; but it must, moreover, be the case that a man has been killed by someone.
Si servus communis, id est meus et tuus, servum meum occiderit, legi aquiliae locus est adversus te, si tua voluntate fecit: et ita proculum existimasse urseius refert. quod si non voluntate tua fecit, cessare noxalem actionem, ne sit in potestate servi, ut tibi soli serviat: quod puto verum esse.
If a joint slave—that is, mine and yours—kills my slave, there is scope for the Aquilian law against you, if he did it by your will: and thus Urseius reports that Proculus judged. But if he did not do it by your will, the noxal action ceases, lest it be in the power of the slave to serve you alone: which I think is true.
Servi autem occidentis nomine dominus tenetur, is vero cui bona fide servit non tenetur. sed an is, qui servum in fuga habet, teneatur nomine eius aquiliae actione, quaeritur: et ait iulianus teneri et est verissimum: cum et Marcellus consentit.
Moreover, on account of a slave who does the killing, the master is held liable; but the one whom he serves in good faith is not held. But whether he who has a slave in flight is held by reason of him by the Aquilian action is asked; and Julian says he is held, and this is most true, since Marcellus also agrees.
Tertio autem capite ait eadem lex aquilia: " ceterarum rerum praeter hominem et pecudem occisos si quis alteri damnum faxit, quod usserit fregerit ruperit iniuria, quanti ea res erit in diebus triginta proximis, tantum aes domino dare damnas esto".
But in the third chapter the same Lex Aquilia says: " as to other things, except a human being and a head of livestock that have been killed, if anyone causes damage to another, by burning, breaking, or rupturing wrongfully, whatever that thing will be worth within the next thirty days, let him be condemned to give that amount of money to the owner".
Si fornicarius servus coloni ad fornacem obdormisset et villa fuerit exusta, neratius scribit ex locato conventum praestare debere, si neglegens in eligendis ministeriis fuit: ceterum si alius ignem subiecerit fornaci, alius neglegenter custodierit, an tenebitur qui subiecerit? nam qui custodit, nihil fecit, qui recte ignem subiecit, non peccavit: quid ergo est? puto utilem competere actionem tam in eum qui ad fornacem obdormivit quam in eum qui neglegenter custodit, nec quisquam dixerit in eo qui obdormivit rem eum humanam et naturalem passum, cum deberet vel ignem extinguere vel ita munire, ne evagetur.
If the colonus’s furnace-man slave fell asleep at the furnace and the villa was burned, Neratius writes that he ought to be held under the action ex locato to make good the agreement, if he was negligent in choosing the staff: but if one person applied the fire to the furnace, and another kept watch negligently, will he who applied it be held? for the one who keeps watch did nothing, and he who correctly applied the fire did not sin: what then? I think a useful action lies both against him who fell asleep at the furnace and against him who keeps watch negligently; nor should anyone say, in the case of him who fell asleep, that he underwent a human and natural thing, since he ought either to extinguish the fire or to secure it in such a way that it not wander.
Si furnum secundum parietem communem haberes, an damni iniuria tenearis? et ait proculus agi non posse, quia nec cum eo qui focum haberet: et ideo aequius puto in factum actionem dandam, scilicet si paries exustus sit: sin autem nondum mihi damnum dederis, sed ita ignem habeas, ut metuam, ne mihi damnum des, damni infecti puto sufficere cautionem.
If you had an oven next to a common wall, are you held by the action for wrongful damage? And Proculus says that proceedings cannot be brought, because not even against one who had a hearth. And therefore I think it more equitable that an action in factum be granted—namely, if the wall has been scorched; but if, however, you have not yet caused me loss, but keep fire in such a way that I fear you may cause me loss, I think the security (cautio) for damage not yet done (damni infecti) suffices.
Proculus ait, cum coloni servi villam exussissent, colonum vel ex locato vel lege aquilia teneri, ita ut colonus possit servos noxae dedere, et si uno iudicio res esset iudicata, altero amplius non agendum. sed haec ita, si culpa colonus careret: ceterum si noxios servos habuit, damni eum iniuria teneri, cur tales habuit. idem servandum et circa inquilinorum insulae personas scribit: quae sententia habet rationem.
Proculus says that, when a colonus’s slaves had burned down the villa, the colonus is held either ex locato or under the Lex Aquilia, on condition that the colonus may give the slaves in noxal surrender; and if the matter were adjudged in one action, it is not to be pursued further in another. But this is so if the colonus were free from fault; otherwise, if he kept noxious (delinquent) slaves, he is held for wrongful damage, because he kept such men. He writes that the same is to be observed also concerning the persons of the inquilini of an insula (apartment-building): which opinion has reason.
Et ideo celsus quaerit, si lolium aut avenam in segetem alienam inieceris, quo eam tu inquinares, non solum quod vi aut clam dominum posse agere vel, si locatus fundus sit, colonum, sed et in factum agendum, et si colonus eam exercuit, cavere eum debere amplius non agi, scilicet ne dominus amplius inquietet: nam alia quaedam species damni est ipsum quid corrumpere et mutare, ut lex aquilia locum habeat, alia nulla ipsius mutatione applicare aliud, cuius molesta separatio sit.
And therefore Celsus asks, if you have thrown darnel or oats into another’s standing crop, whereby you would befoul it, not only that the owner can proceed by the interdict quod vi aut clam, or, if the farm has been leased, the colonus; but also that an action in factum should be brought; and that, if the colonus has prosecuted it, he must give security that no further action be brought, namely that the owner be no further harassed: for one kind of damage is to corrupt and change the thing itself, so that the Lex Aquilia has place; another is to apply/attach something else to it without any alteration of the thing itself, the separation of which is troublesome.
Rupisse eum utique accipiemus, qui vulneraverit, vel virgis vel loris vel pugnis cecidit, vel telo vel quo alio, ut scinderet alicui corpus, vel tumorem fecerit, sed ita demum, si damnum iniuria datum est: ceterum si nullo servum pretio viliorem deterioremve fecerit, aquilia cessat iniuriarumque erit agendum dumtaxat: aquilia enim eas ruptiones, quae damna dant, persequitur. ergo etsi pretio quidem non sit deterior servus factus, verum sumptus in salutem eius et sanitatem facti sunt, in haec mihi videri damnum datum: atque ideoque lege aquilia agi posse.
We will assuredly take him to have “broken” who has wounded, or has struck with rods or with thongs or with fists, or with a weapon or with some other thing, so as to cut open someone’s body, or has produced a swelling—but only if damage has been unlawfully given; otherwise, if in no way he has made the slave cheaper in price or worse, the Aquilian action ceases, and one will have to proceed only by the action for insults: for the Aquilian law pursues those ruptures which give damages. Therefore, even if the slave has not in fact been made worse as to price, yet expenses have been incurred for his preservation and restoration to health—in these I consider damage to have been given; and for that reason one can sue under the Aquilian law.
Si quis de manu mihi nummos excusserit, sabinus existimat damni iniuriae esse actionem, si ita perierint, ne ad aliquem pervenirent, puta si in flumen vel in mare vel in cloacam ceciderunt: quod si ad aliquem pervenerunt, ope consilio furtum factum agendum, quod et antiquis placuit. idem etiam in factum dari posse actionem ait.
If someone has knocked coins out of my hand, Sabinus thinks that there is an action for wrongful damage, if they have perished in such a way that they did not reach anyone—for instance, if they fell into a river or into the sea or into a sewer; but if they did reach someone, one should bring an action that theft was done by aid and counsel, which also pleased the ancients. He likewise says that an action in factum can be given.
Si olivam immaturam decerpserit vel segetem desecuerit immaturam vel vineas crudas, aquilia tenebitur: quod si iam maturas, cessat aquilia: nulla enim iniuria est, cum tibi etiam impensas donaverit, quae in collectionem huiusmodi fructuum impenduntur: sed si collecta haec interceperit, furti tenetur. octavenus in uvis adicit, nisi inquit, in terram uvas proiecit, ut effunderentur.
If he should pluck an unripe olive, or cut an unripe crop, or unripe vines, he will be liable under the Aquilian law: but if already ripe, the Aquilian [action] ceases; for there is no injury, since he has even bestowed on you the expenses which are expended on the gathering of fruits of this kind: but if he intercepts these after they have been collected, he is liable for theft. Octavenus adds, in regard to grapes, “unless,” he says, “he threw the grapes onto the ground, so that they might be poured out.”
Si calicem diatretum faciendum dedisti, si quidem imperitia fregit, damni iniuria tenebitur: si vero non imperitia fregit, sed rimas habebat vitiosas, potest esse excussatus: et ideo plerumque artifices convenire solent, cum eiusmodi materiae dantur, non periculo suo se facere, quae res ex locato tollit actionem et aquiliae.
If you have given a diatrete cup to be made, then if he broke it through incompetence, he will be held for wrongful damage; but if he did not break it through incompetence, but it had defective cracks, he can be excused. And therefore artificers are for the most part accustomed to agree, when materials of this sort are delivered, that they act not at their own risk—a provision which removes the action ex locato and the Aquilian action.
Si quis servum conductum ad mulum regendum commendaverit ei mulum ille ad pollicem suum eum alligaverit de loro et mulus eruperit sic, ut et pollicem avelleret servo et se praecipitaret, mela scribit, si pro perito imperitus locatus sit, ex conducto agendum cum domino ob mulum ruptum vel debilitatum, sed si ictu aut terrore mulus turbatus sit, tum dominum eius, id est muli, et servi cum eo qui turbavit habiturum legis aquiliae actionem. mihi autem videtur et eo casu, quo ex locato actio est, competere etiam aquiliae.
If someone has entrusted to a hired slave a mule for managing, and he has tied it to his own thumb by a strap, and the mule has broken loose in such a way that it both tore off the slave’s thumb and hurled itself headlong, Mela writes that, if an unskilled man has been hired in place of a skilled one, an action ex conducto is to be brought against the master on account of the mule being broken or debilitated; but if the mule was disturbed by a blow or by terror, then the owner of it—that is, of the mule—and the owner of the slave will have an action under the Lex Aquilia against the one who disturbed it. However, it seems to me that even in that case in which there is an action ex locato, the Aquilian action likewise lies.
Si protectum meum, quod supra domum tuam nullo iure habebam, reccidisses, posse me tecum damni iniuria agere proculus scribit: debuisti enim mecum ius mihi non esse protectum habere agere: nec esse aequum damnum me pati recisis a te meis tignis. aliud est dicendum ex rescripto imperatoris severi, qui ei, per cuius domum traiectus erat aquae ductus citra servitutem, rescripsit iure suo posse eum intercidere, et merito: interest enim, quod hic in suo protexit, ille in alieno fecit.
If you had cut back my projection, which I held above your house with no right, Proculus writes that I could bring an action with you for wrongful damage: for you ought to have litigated with me that I had no right to have the projection; nor is it equitable that I suffer loss, my beams having been cut back by you. A different conclusion must be stated from the rescript of the emperor Severus, who wrote back to the man through whose house a water-conduit had been carried without a servitude that he could cut it off by his own right—and justly: for it makes a difference, because this man projected on his own property, that man did it on another’s.
Si navis tua impacta in meam scapham damnum mihi dedit, quaesitum est, quae actio mihi competeret. et ait proculus, si in potestate nautarum fuit, ne id accideret, et culpa eorum factum sit, lege aquilia cum nautis agendum, quia parvi refert navem immittendo aut serraculum ad navem ducendo an tua manu damnum dederis, quia omnibus his modis per te damno adficior: sed si fune rupto aut cum a nullo regeretur navis incurrisset, cum domino agendum non esse.
If your ship, by colliding with my skiff, caused me loss, the question was asked what action would be available to me. And Proculus says: if it was in the power of the sailors to prevent this from happening, and it was done through their fault, one must proceed under the Aquilian Law against the sailors, because it matters little whether by letting the ship run in, or by bringing a lighter up to the ship, or by your own hand you have caused the damage, since by all these ways I am affected with loss through you; but if the ship ran in when the rope broke, or when it was being steered by no one, there is not to be an action against the owner.
Item labeo scribit, si, cum vi ventorum navis impulsa esset in funes anchorarum alterius et nautae funes praecidissent, si nullo alio modo nisi praecisis funibus explicare se potuit, nullam actionem dandam. idemque labeo et proculus et circa retia piscatorum, in quae navis piscatorum inciderat, aestimarunt. plane si culpa nautarum id factum esset, lege aquilia agendum.
Likewise Labeo writes: if, when by the force of the winds a ship was driven into another’s anchor-cables and the sailors cut the cables—if in no other way except by cutting the cables could they disentangle themselves—no action is to be granted. And Labeo and Proculus judged the same also concerning fishermen’s nets, into which a ship of fishermen had collided. Plainly, if this was done through the fault of the sailors, one must sue under the Lex Aquilia.
Si navis alteram contra se venientem obruisset, aut in gubernatorem aut in ducatorem actionem competere damni iniuriae alfenus ait: sed si tanta vis navi facta sit, quae temperari non potuit, nullam in dominum dandam actionem: sin autem culpa nautarum id factum sit, puto aquiliae sufficere.
If a ship had run down another coming toward it, Alfenus says that an action for wrongful damage lies either against the helmsman or against the pilot; but if so great a force befell the ship as could not be controlled, no action is to be granted against the owner; but if, however, this was done through the fault of the sailors, I think the Aquilian action suffices.
Magistratus municipales, si damnum iniuria dederint, posse aquilia teneri. nam et cum pecudes aliquis pignori cepisset et fame eas necavisset, dum non patitur te eis cibaria adferre, in factum actio danda est. item si dum putat se ex lege capere pignus, non ex lege ceperit et res tritas corruptasque reddat, dicitur legem aquiliam locum habere: quod dicendum est et si ex lege pignus cepit.
Municipal magistrates, if they have given wrongful damage, can be held by the Aquilian law. For even when someone has seized livestock as a pledge and has killed them by starvation, while he does not allow you to bring them food, an action on the facts is to be granted. Likewise, if while he thinks he is taking a pledge under the statute he has not taken it under the statute, and he returns the things worn down and spoiled, it is said that the Aquilian law has a place; which must be said also if he took the pledge under the statute.
Pignori datus servus si occisus sit, debitori actio competit. sed an et creditori danda sit utilis, quia potest interesse eius, quod debitor solvendo non sit aut quod litem tempore amisit, quaeritur. sed hic iniquum est et domino et creditori eum teneri.
If a slave given in pledge has been slain, an action accrues to the debtor. But whether a useful action ought also to be granted to the creditor—because it can be to his interest that the debtor is not solvent or that he lost the suit by lapse of time—is asked. But here it is inequitable that he be held liable to both the owner and the creditor.
unless someone should think that the debtor would suffer no injury in this matter, since it benefits him up to the amount of the debt and that he will obtain from him what is in excess; or that from the outset an action ought to be given to the debtor for that which is more than the debt. And therefore, in those cases in which an action is to be given to the creditor on account of the debtor’s indigence or because he lost the suit, the creditor will have the Aquilian action up to the measure of the debt, so that this may benefit the debtor; but to the debtor himself the Aquilian action lies for that which exceeds the debt.
In hac quoque actione, quae ex hoc capitulo oritur, dolus et culpa punitur: ideoque si quis in stipulam suam vel spinam comburendae eius causa ignem immiserit et ulterius evagatus et progressus ignis alienam segetem vel vineam laeserit, requiramus, num imperitia eius aut neglegentia id accidit. nam si die ventoso id fecit, culpae reus est ( nam et qui occasionem praestat, damnum fecisse videtur): in eodem crimine est et qui non observavit, ne ignis longius procederet. at si omnia quae oportuit observavit vel subita vis venti longius ignem produxit, caret culpa.
In this action too, which arises from this chapter, fraud and fault are punished: and so if someone has introduced fire into his own stubble or thorn-bush for the purpose of burning it, and the fire, having strayed and gone further, has injured another’s standing crop or vineyard, let us inquire whether it happened through his inexperience or negligence. For if he did this on a windy day, he is guilty of fault ( for he too who provides the occasion is considered to have caused the damage): under the same charge is he who did not keep watch, so that the fire should not proceed farther. But if he observed everything that ought to have been observed, or a sudden force of wind carried the fire farther, he is free from fault.
Si putator ex arbore ramum cum deiceret vel machinarius hominem praetereuntem occidit, ita tenetur, si is in publicum decidat nec ille proclamavit, ut casus eius evitari possit. sed mucius etiam dixit, si in privato idem accidisset, posse de culpa agi: culpam autem esse, quod cum a diligente provideri poterit, non esset provisum aut tum denuntiatum esset, cum periculum evitari non possit. secundum quam rationem non multum refert, per publicum an per privatum iter fieret, cum plerumque per privata loca volgo iter fiat.
If a pruner, while throwing down a branch from a tree, or a machinery-operator, kills a passer-by, he is liable thus, if it falls into a public place and he did not proclaim, such that the accident could be avoided. But Mucius also said that, if the same had happened on private property, one could proceed by an action on fault: and that fault is this, that, when it could have been provided for by a diligent man, it was not provided for, or that warning was then given when the danger cannot be avoided. According to which reasoning it does not make much difference whether travel was made through a public or through a private place, since for the most part travel is commonly made through private places.
Illud quaesitum est, an quod proconsul in furto observat quod a familia factum sit ( id est ut non in singulos detur poenae persecutio, sed sufficeret id praestari, quod praestandum foret, si id furtum unus liber fecisset), debeat et in actione damni iniuriae observari. sed magis visum est idem esse observandum, et merito: cum enim circa furti actionem haec ratio sit, ne ex uno delicto tota familia dominus careat eaque ratio similiter et in actionem damni iniuriae interveniat, sequitur, ut idem debeat aestimari, praesertim cum interdum levior sit haec causa delicti, veluti si culpa et non dolo damnum daretur.
It has been asked whether that which the proconsul observes in a theft committed by the household (that is, that the prosecution of the penalty is not given against individuals, but it would suffice that that be rendered which would have to be rendered if one free person had committed that theft) ought also to be observed in the action for wrongful damage. But it has more rightly seemed that the same is to be observed, and with good reason: since in the action of theft this rationale obtains, that from a single offense the master not be deprived of his whole household, and the same rationale likewise intervenes in the action for wrongful damage, it follows that the same ought to be assessed, especially since this ground of delict is sometimes lighter, as, for example, if the damage were given by culpa (fault/negligence) and not by dolus (fraudulent intent).
Si idem eundem servum vulneraverit, postea deinde etiam occiderit, tenebitur et de vulnerato et de occiso: duo enim sunt delicta. aliter atque si quis uno impetu pluribus vulneribus aliquem occiderit: tunc enim una erit actio de occiso.
If the same person has wounded the same slave, and afterwards has also killed him, he will be held liable both for the wounded man and for the slain; for there are two delicts. Otherwise than if someone has killed a person in a single assault by multiple wounds: then there will be a single action concerning the slain.
Si servum meum occidisti, non affectiones aestimandas esse puto, veluti si filium tuum naturalem quis occiderit quem tu magno emptum velles, sed quanti omnibus valeret. sextus quoque pedius ait pretia rerum non ex affectione nec utilitate singulorum, sed communiter fungi: itaque eum, qui filium naturalem possidet, non eo locupletiorem esse, quod eum plurimo, si alius possideret, redempturus fuit, nec illum, qui filium alienum possideat, tantum habere, quanti eum patri vendere posset. in lege enim aquilia damnum consequimur: et amisisse dicemur, quod aut consequi potuimus aut erogare cogimur.
If you have killed my slave, I do not think affections are to be assessed—just as if someone had killed your natural son whom you would wish to have bought for a great price—but rather how much he would be worth to everyone. Sextus Pedius also says that the prices of things are determined not from affection nor from the utility of individuals, but are fixed in common: therefore, he who possesses a natural son is not wealthier on this account, that he would have bought him back for a very great price if another possessed him; nor does he who possesses another’s son have so much as he could sell him to the father for. For under the Aquilian law we pursue loss: and we will be said to have lost that which either we could have obtained or are compelled to expend.
Si dominus servum, quem titius mortifere vulneraverat, liberum et heredem esse iusserit eique postea maevius exstiterit heres, non habebit maevius cum titio legis aquiliae actionem, scilicet secundum sabini opinionem, qui putabat ad heredem actionem non transmitti, quae defuncto competere non potuit: nam sane absurdum accidet, ut heres pretium quasi occisi consequatur eius, cuius heres exstitit. quod si ex parte eum dominus heredem cum libertate esse iusserit, coheres eius mortuo eo aget lege aquilia.
If a master has ordered that a slave, whom titius had mortally wounded, be free and heir, and afterward maevius has become his heir, maevius will not have against titius an action of the aquilian law—namely, according to the opinion of sabinus, who thought that an action is not transmitted to the heir which could not have lain to the deceased: for truly an absurdity would result, that the heir should obtain the price as if of one slain, of him whose heir he became. But if the master has ordered him to be heir with liberty as to a share, his coheir, when he has died, will sue under the aquilian law.
Si quadrupes, cuius nomine actio esset cum domino, quod pauperiem fecisset, ab alio occisa est et cum eo lege aquilia agitur, aestimatio non ad corpus quadrupedis, sed ad causam eius ( in quo de pauperie actio est) referri debet et tanti damnandus est is qui occidit iudicio legis aquiliae, quanti actoris interest noxae potius deditione defungi quam litis aestimatione.
If a quadruped, in whose name there would be an action against its owner because it had caused pauperies, is killed by another and an Aquilian action is brought against him, the estimation ought to be referred not to the body of the quadruped but to its causa (in which there is an action de pauperie); and the one who killed is to be condemned by a judgment under the Lex Aquilia in as much as it is in the plaintiff’s interest to discharge the liability rather by noxal surrender than by the estimation of the suit.
Quintus mucius scribit: equa cum in alieno pasceretur, in cogendo quod praegnas erat eiecit: quaerebatur, dominus eius possetne cum eo qui coegisset lege aquilia agere, quia equam in iciendo ruperat. si percussisset aut consulto vehementius egisset, visum est agere posse.
quintus mucius writes: while a mare was grazing on another’s land, in the course of being driven (since she was pregnant) she cast her fetus; the question was raised whether her owner could proceed under the Aquilian law against the one who had driven her, because in striking he had damaged the mare. if he had struck her, or had on purpose acted more violently, it was thought he could bring the action.
Pomponius. quamvis alienum pecus in agro suo quis deprehendit, sic illud expellere debet, quomodo si suum deprehendisset, quoniam si quid ex ea re damnum cepit, habet proprias actiones. itaque qui pecus alienum in agro suo deprehenderit, non iure id includit, nec agere illud aliter debet quam ut supra diximus quasi suum: sed vel abigere debet sine damno vel admonere dominum, ut suum recipiat.
Pomponius. Although one apprehends another’s herd on his own land, he ought to expel it just as if he had apprehended his own, since if he has taken any damage from that matter, he has his own proper actions. And so he who shall have apprehended another’s herd on his land does not lawfully enclose it, nor ought he to deal with it otherwise than, as we said above, as though it were his own: but either he ought to drive it away without damage or admonish the owner to take back what is his.
In lege aquilia, si deletum chirographum mihi esse dicam, in quo sub condicione mihi pecunia debita fuerit, et interim testibus quoque id probare possim, qui testes possunt non esse eo tempore, quo condicio extitit, et si summatim re exposita ad suspicionem iudicem adducam, debeam vincere: sed tunc condemnationis exactio competit, cum debiti condicio extiterit: quod si defecerit, condemnatio nullas vires habebit.
Under the Aquilian Law, if I say that a chirograph in which money had been owed to me under a condition has been destroyed, and in the meantime I can also prove this by witnesses—witnesses who may not be there at the time when the condition arises—and if, the matter having been set forth summarily, I bring the judge to a suspicion, I ought to prevail: but then the enforcement of the condemnation is available when the condition of the debt has arisen: whereas if it fails, the condemnation will have no force.
I noted in him that, as regards the testator, this is indeed true, because the amount of his interest cannot be assessed; yet in the case of the heir or the legatees it is different, for whom wills are almost chirographs. In the same place Marcellus writes that, with a chirograph deleted, the action of the Lex Aquilia is available. But also, if someone has deleted the tablets of a will deposited with him or has read them with several persons present, it is more useful to sue by an in-factum action and by an action for injuries, if for the sake of committing an injury he has made public the secrets of judicial proceedings.
Interdum evenire pomponius eleganter ait, ut quis tabulas delendo furti non teneatur, sed tantum damni iniuriae, ut puta si non animo furti faciendi, sed tantum damni dandi delevit: nam furti non tenebitur: cum facto enim etiam animum furis furtum exigit.
Sometimes, Pomponius elegantly says, it happens that someone, by erasing tablets, is not held for theft, but only for wrongful damage, as, for instance, if he erased not with the intention of committing theft, but only of inflicting damage: for he will not be held for theft: for theft requires, along with the deed, also the mind of a thief.
Qui tabulas testamenti depositas aut alicuius rei instrumentum ita delevit, ut legi non possit, depositi actione et ad exhibendum tenetur, quia corruptam rem restituerit aut exhibuerit. legis quoque aquiliae actio ex eadem causa competit: corrupisse enim tabulas recte dicitur et qui eas interleverit.
He who has so erased tablets of a will deposited for safekeeping, or the instrument of some matter, that it cannot be read, is held by the action of deposit and by the action for production, because he has restored or exhibited a thing that has been corrupted. An action under the Aquilian law also lies from the same cause: for he too is rightly said to have corrupted the tablets who has interlined them.
Ob id, quod ante quam hereditatem adires damnum admissum in res hereditarias est, legis aquiliae actionem habes, quod post mortem eius, cui heres sis, acciderit: dominum enim lex aquilia appellat non utique eum, qui tunc fuerit, cum damnum daretur: nam isto modo ne ab eo quidem, cui heres quis erit, transire ad eum ea actio poterit: neque ob id, quod tum commissum fuerit, cum in hostium potestate esses, agere postliminio reversus poteris: et hoc aliter constitui sine magna captione postumorum liberorum, qui parentibus heredes erunt, non poterit. eadem dicemus et de arboribus eodem tempore furtim caesis. puto eadem dici posse etiam de hac actione quod vi aut clam, si modo quis aut prohibitus fecerit, aut apparuerit eum intellegere debuisse ab eis, ad quos ea hereditas pertineret, si rescissent, prohibitum iri.
On account of that damage which, before you enter upon the inheritance, has been committed against the hereditary things, you have an action under the Lex Aquilia for what happened after the death of him whose heir you are: for the Lex Aquilia calls “owner” not necessarily the one who was such at the time when the damage was inflicted; for in that way the action could not even pass from the person of whom someone will be heir to that heir. Nor, upon returning by postliminium, will you be able to sue for that which was committed while you were in the power of the enemy: and this cannot be otherwise established without great prejudice to posthumous children who will be heirs to their parents. We will say the same also about trees felled stealthily at the same time. I think the same can be said also about the action quod vi aut clam, provided only that someone either did it though prohibited, or it appeared that he ought to have understood that by those to whom that inheritance would pertain, if they had found it out, it would be prohibited.
Qui, cum aliter tueri se non possent, damni culpam dederint, innoxii sunt: vim enim vi defendere omnes leges omniaque iura permittunt. sed si defendendi mei causa lapidem in adversarium misero, sed non eum, sed praetereuntem percussero, tenebor lege aquilia: illum enim solum qui vim infert ferire conceditur, et hoc, si tuendi dumtaxat, non etiam ulciscendi causa factum sit.
Those who, when they could not otherwise protect themselves, have occasioned a loss, are not liable: for all laws and all rights permit force to be repelled by force. But if, for the sake of my defense, I hurl a stone at my adversary, yet I do not hit him but strike a passer-by, I shall be held liable under the Lex Aquilia: for it is granted to strike only him who inflicts the force, and this only if it has been done for the purpose of protecting, not also for avenging.
Sed si priore iudicio aestimatione facta, postea mortuo servo, de occiso agere dominus instituerit, exceptione doli mali opposita compelletur, ut ex utroque iudicio nihil amplius consequatur, quam consequi deberet, si initio de occiso homine egisset.
But if, in the prior judgment, an assessment having been made, afterwards, when the slave has died, the master should institute an action for the slain, with an exception of dolus malus opposed he will be compelled, so that from both judgments he may obtain nothing more than he ought to obtain if at the beginning he had sued for the slain man.
Quod dicitur damnum iniuria datum aquilia persequi, sic erit accipiendum, ut videatur damnum iniuria datum, quod cum damno iniuriam attulerit: nisi magna vi cogente fuerit factum, ut celsus scribit circa eum, qui incendii arcendi gratia vicinas aedes intercidit: nam hic scribit cessare legis aquiliae actionem: iusto enim metu ductus, ne ad se ignis perveniret, vicinas aedes intercidit: et sive pervenit ignis sive ante extinctus est, existimat legis aquiliae actionem cessare.
That which is said, that damage wrongfully given is pursued under the Aquilian law, must be understood thus: “damage wrongfully given” is to be deemed that which, together with the damage, has brought about a wrongful act—unless it was done under the compulsion of great force, as Celsus writes concerning the man who, for the sake of warding off a fire, demolished the neighboring houses. For here he writes that the action of the Lex Aquilia does not lie: for, led by just fear lest the fire should reach him, he demolished the neighboring houses; and whether the fire did reach him or was extinguished beforehand, he judges that the action of the Lex Aquilia is in abeyance.
Ita vulneratus est servus, ut eo ictu certum esset moriturum: medio deinde tempore heres institutus est et postea ab alio ictus decessit: quaero, an cum utroque de occiso lege aquilia agi possit. respondit: occidisse dicitur vulgo quidem, qui mortis causam quolibet modo praebuit: sed lege aquilia is demum teneri visus est, qui adhibita vi et quasi manu causam mortis praebuisset, tracta videlicet interpretatione vocis a caedendo et a caede. rursus aquilia lege teneri existimati sunt non solum qui ita vulnerassent, ut confestim vita privarent, sed etiam hi, quorum ex vulnere certum esset aliquem vita excessurum.
A slave was so wounded that by that blow it was certain he would die; then in the interval an heir was instituted, and afterwards, struck by another, he died: I ask whether one can sue under the Aquilian law for the killing against both. He answered: in common speech, he is said to have “killed” who furnished a cause of death in any way whatever; but by the Aquilian law he is deemed liable only who, with force applied and, as it were, by hand, furnished the cause of death—deriving, namely, the interpretation of the word from cutting/slaying and from slaughter. In turn, persons have been thought to be held by the Aquilian law not only who wounded in such a way as to deprive of life immediately, but also those whose wound made it certain that someone would depart from life.
Aestimatio autem perempti non eadem in utriusque persona fiet: nam qui prior vulneravit, tantum praestabit, quanto in anno proximo homo plurimi fuerit repetitis ex die vulneris trecentum sexaginta quinque diebus, posterior in id tenebitur, quanti homo plurimi venire poterit in anno proximo, quo vita excessit, in quo pretium quoque hereditatis erit. eiusdem ergo servi occisi nomine alius maiorem, alius minorem aestimationem praestabit, nec mirum, cum uterque eorum ex diversa causa et diversis temporibus occidisse hominem intellegatur. quod si quis absurde a nobis haec constitui putaverit, cogitet longe absurdius constitui neutrum lege aquilia teneri aut alterum potius, cum neque impunita maleficia esse oporteat nec facile constitui possit, uter potius lege teneatur.
The valuation, however, of the slain will not be the same in the person of each: for the one who wounded first will render as much as, in the next year, the man was at his highest price, reckoned from the day of the wound for 365 days; the later one will be held for as much as the man could come to (fetch) at his highest price in the next year in which he departed life, in which year there will also be the valuation of the inheritance. Accordingly, under the head of the same slave having been killed, the one will furnish a greater, the other a lesser valuation; nor is this a wonder, since each of them is understood to have killed the man from a different cause and at different times. But if anyone shall think that these provisions have been absurdly established by us, let him consider that it would be far more absurd to establish that neither is held by the Aquilian law, or rather that only one is, since misdeeds ought not to go unpunished, nor can it easily be determined which of the two ought rather to be held by the law.
Many things, moreover, in the civil law have been received against the rationale of disputation for the common utility; this can be proved by innumerable matters: for the moment I shall be content to have set down one. When several have lifted another’s beam for the sake of stealing, which they could not carry each singly, they are all considered to be liable by the action for theft, although by a subtle rationale it can be said that none of them is liable, because it is true of none of them that he lifted it.
Tabernarius in semita noctu supra lapidem lucernam posuerat: quidam praeteriens eam sustulerat: tabernarius eum consecutus lucernam reposcebat et fugientem retinebat: ille flagello, quod in manu habebat, in quo dolor inerat, verberare tabernarium coeperat, ut se mitteret: ex eo maiore rixa facta tabernarius ei, qui lucernam sustulerat, oculum effoderat: consulebat, num damnum iniuria non videtur dedisse, quoniam prior flagello percussus esset. respondi, nisi data opera effodisset oculum, non videri damnum iniuria fecisse, culpam enim penes eum, qui prior flagello percussit, residere: sed si ab eo non prior vapulasset, sed cum ei lucernam eripere vellet, rixatus esset, tabernarii culpa factum videri.
A tavern-keeper at night on a footpath had placed a lamp upon a stone: a certain man passing by had picked it up: the tavern-keeper, having followed him, was demanding the lamp back and was detaining the one fleeing: he, with a whip which he had in his hand, one that inflicted pain, began to flog the tavern-keeper, so that he would let him go: from this, a greater brawl arising, the tavern-keeper gouged out the eye of the man who had picked up the lamp: he consulted whether he does not seem to have given damage by injury, since he had first been struck with the whip. I answered that, unless he gouged out the eye deliberately, he does not seem to have done damage by injury, for the fault resides with him who first struck with the whip; but if he had not first taken a beating from him, but, when he wished to snatch the lamp from him, had brawled, it seems to have been done by the tavern-keeper’s fault.
In clivo capitolino duo plostra onusta mulae ducebant: prioris plostri muliones conversum plostrum sublevabant, quo facile mulae ducerent: inter superius plostrum cessim ire coepit et cum muliones, qui inter duo plostra fuerunt, e medio exissent, posterius plostrum a priore percussum retro redierat et puerum cuiusdam obtriverat: dominus pueri consulebat, cum quo se agere oporteret. respondi in causa ius esse positum: nam ^ eam^ si muliones, qui superius plostrum sustinuissent, sua sponte se subduxissent et ideo factum esset, ut mulae plostrum retinere non possint atque onere ipso retraherentur, cum domino mularum nullam esse actionem, cum hominibus, qui conversum plostrum sustinuissent, lege aquilia agi posse: nam nihilo minus eum damnum dare, qui quod sustineret mitteret sua voluntate, ut id aliquem feriret: veluti si quis asellum cum agitasset non retinuisset, aeque si quis ex manu telum aut aliud quid immisisset, damnum iniuria daret. sed si mulae, quia aliquid reformidassent et muliones timore permoti, ne opprimerentur, plostrum reliquissent, cum hominibus actionem nullam esse, cum domino mularum esse.
On the Capitoline incline two laden wagons were being drawn by mules: the muleteers of the first wagon were propping up the turned-over wagon, so that the mules might draw more easily: meanwhile the upper wagon began to move back by degrees, and when the muleteers, who were between the two wagons, had gone out from the middle, the rear wagon, struck by the former, had gone back and had crushed a certain boy: the boy’s owner consulted as to with whom he ought to bring an action. I answered that the right turned on the circumstances: for ^ eam^ if the muleteers who had supported the upper wagon had withdrawn of their own accord and thus it had come about that the mules could not hold the wagon and were dragged back by the load itself, there would be no action against the owner of the mules, but one could proceed by the Lex Aquilia against the men who had supported the tilted wagon: for none the less he incurs liability for damage who, of his own will, lets go what he was supporting, with the result that it strikes someone: just as if someone, when he had driven on a little donkey, had not restrained it, or likewise if someone had launched from his hand a missile or anything else, he would give wrongful damage. But if the mules, because they had taken fright at something, and the muleteers, moved by fear lest they be crushed, had left the wagon, there would be no action against the men, but there would be one against the owner of the mules.
but if neither the mules nor the men were the cause, but the mules were unable to hold the load, or, when they were straining, slipped and fell, and for that reason the cart had gone back by yielding, and those on whose side the load had shifted were unable to sustain it, there would be an action neither against the owner of the mules nor against the men. this, indeed, certainly—however the matter stood—one could not proceed against the owner of the rear mules, since they had gone back not of their own will, but because they had been struck.
Quidam boves vendidit ea lege, uti daret experiundos: postea dedit experiundos: emptoris servus in experiundo percussus ab altero bove cornu est: quaerebatur, num venditor emptori damnum praestare deberet. respondi, si emptor boves emptos haberet, non debere praestare: sed si non haberet emptos, tum, si culpa hominis factum esset, ut a bove feriretur, non debere praestari, si vitio bovis, debere.
Someone sold oxen on this condition, that he should give them for testing; afterwards he did give them for testing. While the buyer’s slave was testing, he was struck by the horn of the other ox. It was asked whether the seller ought to make good the buyer’s damage. I replied: if the buyer had the oxen as bought, he ought not to make it good; but if he did not have them as bought, then, if it was brought about by a man’s fault that he was struck by an ox, it ought not to be made good; if by the vice of the ox, it ought to be.
Cum pila complures luderent, quidam ex his servulum, cum pilam percipere conaretur, impulit, servus cecidit et crus fregit: quaerebatur, an dominus servuli lege aquilia cum eo, cuius impulsu ceciderat, agere potest. respondi non posse, cum casu magis quam culpa videretur factum.
While several were playing at ball, one of them pushed a little slave as he was trying to catch the ball; the slave fell and broke his leg. It was asked whether the master of the little slave can bring an action under the Aquilian Law against the one by whose push he had fallen. I answered that he cannot, since it seemed to have been done by chance rather than by fault.
Legis aquiliae debitori competit actio, cum reus stipulandi ante moram promissum animal vulneravit: idem est et si occiderit animal. quod si post moram promissoris qui stipulatus fuerat occidit, debitor quidem liberatur, lege autem aquilia hoc casu non recte experietur: nam creditor ipse sibi potius quam alii iniuriam fecisse videtur.
An action of the Lex Aquilia is available to the debtor, when the party to the stipulation (the stipulator) wounded the promised animal before the promisor’s delay; the same holds if he killed the animal. But if, after the promisor’s delay, the one who had stipulated killed it, the debtor is indeed released, yet in this case he will not rightly proceed under the Lex Aquilia; for the creditor seems to have done an injury to himself rather than to another.
Stichum aut pamphilum promisi titio, cum stichus esset decem milium, pamphilus viginti: stipulator stichum ante moram occidit: quaesitum est de actione legis aquiliae. respondi: cum viliorem occidisse proponitur, in hunc tractatum nihilum differt ab extraneo creditor. quanti igitur fiet aestimatio, utrum decem milium, quanti fuit occisus, an quanti est, quem necesse habeo dare, id est quanti mea interest?
i promised stichus or pamphilus to titio, when stichus was worth 10 thousand, pamphilus 20; the stipulator killed stichus before delay: the question was raised concerning an action of the lex aquilia. i answered: since it is alleged that he killed the cheaper one, for this treatment the creditor differs not at all from an outsider. what therefore will the valuation be—whether 10 thousand, what the one slain was worth, or of the value of him whom i am compelled to give, that is, of how much my interest is?
Equum tibi commodavi: in eo tu cum equitares et una complures equitarent, unus ex his irruit in equum teque deiecit et eo casu crura equi fracta sunt. labeo negat tecum ullam actionem esse, sed si equitis culpa factum esset, cum equite: sane non cum equi domino agi posse. verum puto.
I lent you a horse: while you were riding on it and at the same time several were riding, one of these rushed upon the horse and threw you down, and in that mishap the horse’s legs were broken. labeo denies that there is any action against you, but if it was done by the fault of the rider, then against the rider; certainly it is not possible to proceed against the owner of the horse. I think that is true.
Praetor ait de his, qui deiecerint vel effuderint: " unde in eum locum, quo volgo iter fiet vel in quo consistetur, deiectum vel effusum quid erit, quantum ex ea re damnum datum factumve erit, in eum, qui ibi habitaverit, in duplum iudicium dabo. si eo ictu homo liber perisse dicetur, quinquaginta aureorum iudicium dabo. si vivet nocitumque ei esse dicetur, quantum ob eam rem aequum iudici videbitur eum cum quo agetur condemnari, tanti iudicium dabo.
The praetor says concerning those who have thrown down or poured out: " from where into that place, where a way will commonly be traveled or where people will stand, if anything shall have been thrown down or poured out, as much as damage will have been given or done from that matter, I will grant an action in double against the one who has lived there. If by that blow a free man shall be said to have perished, I will grant an action for fifty aurei. If he lives and it shall be said that harm has been done to him, I will grant an action for as much as, on account of that matter, will seem equitable to the judge that the one with whom suit will be brought be condemned, I will grant an action for that amount.
Parvi autem interesse debet, utrum publicus locus sit an vero privatus, dummodo per eum volgo iter fiat, quia iter facientibus prospicitur, non publicis viis studetur: semper enim ea loca, per quae volgo iter solet fieri, eandem securitatem debent habere. ceterum si aliquando vulgus in illa via non commeabat et tunc deiectum quid vel effusum, cum adhuc secreta loca essent, modo coepit commeari, non debet hoc edicto teneri.
But it ought to be of little importance whether the place is public or truly private, provided that through it a way is commonly traveled; for regard is had for those making the journey, not zeal for public roads: for always those places through which a way is commonly wont to be made ought to have the same security. But if at some time the crowd was not passing along that way, and then something was cast down or poured out, when the places were still secluded, and only now has passage begun to be made, it ought not to be held by this edict.
Quod, cum suspenderetur, decidit, magis deiectum videri, sed et quod suspensum decidit, pro deiecto haberi magis est. proinde et si quid pendens effusum sit, quamvis nemo hoc effuderit, edictum tamen locum habere dicendum est.
That which, when it was being hung up, fell, is rather to be seen as cast down; and even that which, though suspended, fell, is rather to be held as cast down. Accordingly, even if something hanging has been poured out, although no one poured this out, nevertheless the edict is to be said to have application.
Haec in factum actio in eum datur, qui inhabitat, cum quid deiceretur vel effunderetur, non in dominum aedium: culpa enim penes eum est. nec adicitur culpae mentio vel infitiationis, ut in duplum detur actio, quamvis damni iniuriae utrumque exiget.
This action on the facts is granted against the one who inhabits, when something is thrown down or poured out, not against the owner of the house: for the fault lies with him. Nor is mention of fault or of denial added, so that the action is given in double, although the action for wrongful damage will require both.
Habitare autem dicimus vel in suo vel in conducto vel in gratuito. hospes plane non tenebitur, quia non ibi habitat, sed tantisper hospitatur, sed is tenetur, qui hospitium dederit: multum autem interest inter habitatorem et hospitem, quantum interest inter domicilium habentem et peregrinantem.
We say, however, that to inhabit is either in one’s own, or in a hired, or in a place held gratis. A guest plainly will not be bound, because he does not inhabit there, but only lodges there for a time; but he is bound who has given hospitality. There is, moreover, much difference between an inhabitant and a guest, as much as there is between one who has a domicile and one who is traveling abroad.
Si quis gratuitas habitationes dederit libertis et clientibus vel suis vel uxoris, ipsum eorum nomine teneri trebatius ait: quod verum est. idem erit dicendum et si quis amicis suis modica hospitiola distribuerit. nam et si quis cenaculariam exercens ipse maximam partem cenaculi habeat, solus tenebitur: sed si quis cenaculariam exercens modicum sibi hospitium retinuerit, residuum locaverit pluribus, omnes tenebuntur quasi in hoc cenaculo habitantes, unde deiectum effusumve est.
If someone has given free lodgings to freedmen and clients, whether his own or his wife’s, Trebatius says that he himself is held on their account; which is true. The same must be said also if someone has distributed modest little guest-rooms to his friends. For even if someone, carrying on the apartment-house business, himself has the greater part of the tenement, he alone will be held liable; but if someone, carrying on the apartment-house business, has kept a small lodging for himself and has leased the remainder to several, all will be held as if inhabitants in this tenement from which something was thrown down or poured out.
Interdum tamen, quod sine captione actoris fiat, oportebit praetorem aequitate motum in eum potius dare actionem, ex cuius cubiculo vel exedra deiectum est, licet plures in eodem cenaculo habitent: quod si ex mediano cenaculi quid deiectum sit, verius est omnes teneri.
Sometimes, however, in order that it be done without contrivance on the part of the plaintiff, it will be proper that the praetor, moved by equity, grant the action rather against him from whose bedroom or exedra it was thrown down, although several dwell in the same upper-floor apartment: but if something was thrown down from the central part of the apartment, it is truer that all are held liable.
Cum autem legis aquiliae actione propter hoc quis condemnatus est, merito ei, qui ob hoc, quod hospes vel quis alius de cenaculo deiecit, in factum dandam esse labeo dicit adversus deiectorem, quod verum est. plane si locaverat deiectori, etiam ex locato habebit actionem.
However, when someone has been condemned by an action of the Lex Aquilia on account of this, Labeo rightly says that an action in factum should be granted to him against the deiector, because of this fact, that a host or some other person threw down from an upper room—which is true. Clearly, if he had leased to the deiector, he will also have an action ex locato.
Haec autem actio, quae competit de effusis et deiectis, perpetua est et heredi competit, in heredem vero non datur. quae autem de eo competit, quod liber perisse dicetur, intra annum dumtaxat competit, neque in heredem datur neque heredi similibusque personis: nam est poenalis et popularis: dummodo sciamus ex pluribus desiderantibus hanc actionem ei potissimum dari debere cuius interest vel qui adfinitate cognationeve defunctum contingat. sed si libero nocitum sit, ipsi perpetua erit actio: sed si alius velit experiri, annua erit haec actio, nec enim heredibus iure hereditario competit, quippe quod in corpore libero damni datur, iure hereditario transire ad successores non debet, quasi non sit damnum pecuniarium, nam ex bono et aequo oritur.
Moreover, this action, which lies for things poured out and thrown down, is perpetual and is available to the heir, but it is not granted against an heir. But the one which lies on account of a free person who is said to have perished is available only within a year, and it is given neither against an heir nor to an heir and persons of like sort: for it is penal and popular; provided we understand that, if several desire it, this action ought to be given preferably to the one whose interest is at stake, or to the one who touches the deceased by affinity or cognation. But if harm has been done to the free man, the action will be perpetual for him himself; whereas if another wishes to proceed, this action will be annual. For it does not accrue to heirs by hereditary right, since that which is given for damage in a free body ought not by hereditary right to pass to successors, as though it were not pecuniary damage, for it arises from what is good and equitable.
Praetor ait:" ne quis in suggrunda protectove supra eum locum, qua ^ quo^ volgo iter fiet inve quo consistetur, id positum habeat, cuius casus nocere cui possit. qui adversus ea fecerit, in eum solidorum decem in factum iudicium dabo. si servus insciente domino fecisse dicetur, aut noxae dedi iubebo. "
The Praetor says: "Let no one have anything set on the eaves or projection above that place, where ^ whither^ the common way will be traveled or where there will be standing, which by its fall could harm someone. Whoever shall have acted contrary to these provisions, I will grant against him an in factum action for ten solidi. If it shall be said that a slave did it without the master’s knowledge, I will order either that he be surrendered for noxa."
Praetor ait " cuius casus nocere posset". ex his verbis manifestatur non omne quidquid positum est, sed quidquid sic positum est, ut nocere possit, hoc solum prospicere praetorem, ne possit nocere: nec spectamus ut noceat, sed omnino si nocere possit, edicto locus sit. coercetur autem, qui positum habuit, sive nocuit id quod positum erat sive non nocuit.
The praetor says, "whose fall could cause harm." From these words it is made manifest that not everything whatsoever that is placed, but whatever is so placed that it can cause harm—this alone the praetor provides against, that it may not be able to cause harm: nor do we look for it actually to harm, but, in general, if it can cause harm, there is a place for the edict. Moreover, he is coerced who has had the thing placed, whether what was placed did harm or did not.
Si id quod positum erat deciderit et nocuerit, in eum competit actio qui posuit, non in eum qui habitaverit, quasi haec actio non sufficiat, quia positum habuisse non utique videtur qui posuit, nisi vel dominus fuit aedium vel inhabitator. nam et cum pictor in pergula clipeum vel tabulam expositam habuisset eaque excidisset et transeunti damni quid dedisset, servius respondit ad exemplum huius actionis dari oportere actionem: hanc enim non competere palam esse, quia neque in suggrunda neque in protecto tabula fuerat posita. idem servandum respondit et si amphora ex reticulo suspensa decidisset et damni dedisset, quia et legitima et honoraria actio deficit.
If that which had been placed falls down and harms, the action lies against him who placed it, not against him who has inhabited, as though this action were not sufficient, because he who placed it does not necessarily seem to have had it placed, unless he was either the owner of the house or an inhabitant. For even when a painter had in a pergula a shield or a panel set out on exhibition and it fell and caused some damage to a passer-by, Servius responded that an action ought to be granted on the model of this action; for it is clear that this action does not lie, because the panel had been placed neither under the eaves nor on a projection. He replied that the same is to be observed even if an amphora, suspended from a little net, fell and caused damage, because both the statutory and the honorary action fail.
Cum liberi hominis corpus ex eo, quod deiectum effusumve quid erit, laesum fuerit, iudex computat mercedes medicis praestitas ceteraque impendia, quae in curatione facta sunt, praeterea operarum, quibus caruit aut cariturus est ob id, quod inutilis factus est. cicatricium autem aut deformitatis nulla fit aestimatio, quia liberum corpus nullam recipit aestimationem.
When the body of a free person has been injured from the fact that something has been thrown down or poured out, the judge computes the fees paid to physicians and the other expenditures that have been made in the cure, and in addition the value of the services of which he has been deprived or will be deprived because he has been rendered useless. But no estimation is made of scars or of disfigurement, because the body of a free person receives no estimation.
Noxales actiones appellantur, quae non ex contractu, sed ex noxa atque maleficio servorum adversus nos instituuntur: quarum actionum vis et potestas haec est, ut, si damnati fuerimus, liceat nobis deditione ipsius corporis quod deliquerit evitare litis aestimationem.
Noxal actions are so called, which are instituted against us not from contract, but from the noxa and malefaction of slaves: the force and power of these actions is this—that, if we have been condemned, it is permitted us to avoid the assessment of the suit by the surrender of the very body that committed the offense.
Is qui non prohibuit, sive dominus manet sive desiit esse dominus, hac actione tenetur: sufficit enim, si eo tempore dominus, quo non prohibeat, fuit, in tantum, ut celsus putet, si fuerit alienatus servus in totum vel in partem vel manumissus, noxam caput non sequi: nam servum nihil deliquisse, qui domino iubenti obtemperavit. et sane si iussit, potest hoc dici: si autem non prohibuit, quemadmodum factum servi excusabimus? celsus tamen differentiam facit inter legem aquiliam et legem duodecim tabularum: nam in lege antiqua, si servus sciente domino furtum fecit vel aliam noxam commisit, servi nomine actio est noxalis nec dominus suo nomine tenetur, at in lege aquilia, inquit, dominus suo nomine tenetur, non servi.
He who did not forbid, whether he remains owner or has ceased to be owner, is held by this action: for it suffices if he was owner at the time when he did not forbid, to such an extent that Celsus thinks that, if the slave has been alienated in whole or in part or manumitted, the noxal liability does not follow the person; for the slave has committed nothing who obeyed an owner giving orders. And indeed, if he ordered, this can be said; but if he merely did not forbid, how shall we excuse the deed of the slave? Celsus, however, makes a difference between the Aquilian Law and the Law of the Twelve Tables: for under the ancient law, if a slave, with the owner knowing, committed theft or another noxa, the action is noxal in the slave’s name and the owner is not liable in his own name; but under the Aquilian Law, he says, the owner is liable in his own name, not in the slave’s.
He renders the rationale of both laws: of the Twelve Tables, as though it had wished slaves not to obey their masters in this matter; of the Aquilian, as though it had forgiven the slave who obeyed his master, who would be doomed to perish if he had not done it. But if it be acceptable that what Julianus writes in the eighty-sixth book—“if a slave will do something in future or has committed a noxal offense”—also pertains to later statutes, it can be said that even in the slave’s name one may proceed against the master by a noxal judgment, so that what is given by the Aquilian [law] against the master does not excuse the slave, but burdens the master. We, however, have approved according to Julianus—a view that has reason—and it is approved by Marcellus in Julianus.
For what, indeed, if, proclaiming for liberty, he acts with the master knowing, or because he contemns the master? Or when the slave is across the river, and, the master indeed seeing, but unwilling, he does noxious harm? More rightly, therefore, it is said that the knowledge to be taken is that of him who is able to prohibit; and this in the whole edict is to be understood with respect to the word “knowledge.”
Cum dominus ob scientiam teneatur, an servi quoque nomine danda sit actio, videndum est: nisi forte praetor unam poenam a domino exigi voluit. ergo dolus servi impunitus erit? quod est iniquum: immo utroque modo dominus tenebitur, una autem poena exacta, quam actor elegerit, altera tollitur.
When the master is held liable on account of knowledge, it must be considered whether an action ought also to be granted in the slave’s name; unless perhaps the praetor wished a single penalty to be exacted from the master. Will the slave’s fraud then go unpunished? Which is inequitable: rather, the master will be held liable in both ways; but once one penalty has been exacted—whichever the actor (plaintiff) has chosen—the other is removed.
Si detracta noxae deditione quasi cum conscio domino actum sit, qui non erat conscius: absolutione facta et finito iudicio amplius agendo cum noxae deditione exceptione rei iudicatae summovebitur, quia res in superius iudicium deducta et finita est. donec autem prius iudicium agitatur, licentia agenti est, si eum de scientia domini arguenda paeniteat, tunc ad noxalem causam transire. contra quoque si cum eo qui scit cum noxae deditione actum sit, amplius in dominum detracta noxae deditione danda actio non est: in ipso autem iudicio si voluerit et scientiam domini arguere, non est prohibendus.
If, with noxal surrender waived, suit has been brought as though against a master who knew, when he was not in fact knowing: once an acquittal has been given and the judgment concluded, any further proceeding on the basis of noxal surrender will be removed by the exception of res judicata, because the matter has been brought into the earlier judgment and finished. But while the first case is being litigated, it is permitted to the plaintiff, if he repents of alleging the master’s knowledge, then to pass over to the noxal cause. Conversely also, if against one who knows suit has been brought with noxal surrender, no further action is to be given against the master with the noxal surrender withdrawn: but in the trial itself, if he wishes also to allege the master’s knowledge, he is not to be prohibited.
Si plurium servus deliquerit omnibus ignorantibus, noxale iudicium in quemvis dabitur: sed si omnibus scientibus, quivis eorum tenebitur detracta noxae deditione, quemadmodum si plures deliquissent, nec altero convento alter liberabitur: sed si alter scit, alter ignoravit, qui scit detracta noxae deditione convenitur, qui nescit, cum noxae deditione.
If the slave of several has committed a delict, all being unaware, a noxal judgment will be given against any one of them: but if all were aware, any one of them will be held, noxal surrender being removed, just as if several had committed a delict, nor, one being sued, will the other be freed: but if one knows and the other was ignorant, he who knows is sued with noxal surrender removed, he who does not know, with noxal surrender.
Differentia autem harum actionum non solum illa est, quod qui scit in solidum tenetur, verum illa quoque, quod, sive alienaverit servum qui scit sive manumiserit sive decesserit servus, dominus tenetur: sed si ipse dominus decesserit, heres eius non tenetur.
The difference, however, of these actions is not only this, that he who knows is held liable in solidum, but also this: whether he has alienated the slave who knows, or has manumitted him, or the slave has deceased, the master is liable; but if the master himself has deceased, his heir is not liable.
Si servus communis furtum fecerit, quivis ex dominis in solidum noxali iudicio tenetur: eoque iure utimur. sed non alias poterit is qui conventus est evadere litis aestimationem, nisi in solidum noxae dederit servum, nec ferendus est, si partem dedere fuerit paratus. plane si propter hoc, quod socii dedere parati non fuerint, in solidum fuerit condemnatus, communi dividundo vel familiae erciscundae iudicio adversus eos experietur.
If a common slave has committed theft, any one of the owners is held liable in full under a noxal action; and we employ this law. But otherwise the one who has been sued cannot escape the assessment of the action unless he surrenders the slave noxally in full; nor is he to be tolerated if he was prepared to give only a share. Clearly, if for this reason—that his partners were not prepared to surrender—he has been condemned in solidum, he will proceed against them by the action for dividing common property (actio communi dividundo) or by the action for partition of the family/inheritance (actio familiae erciscundae).
before the noxal action has indeed been accepted, he can, by ceding his own share, obtain security, so that he need not undertake the action; although one could say it comes about that, when a share is given to him, he loses the action: for an owner made owner pro parte cannot proceed by a noxal action against his co-owner. Perhaps he can not even proceed by the communi dividundo action in the name of that wrongdoing which was admitted before the co-ownership; and if he cannot, he will be affected by evident injustice. But it is better to say that the iudicium communi dividundo is competent to him.
Si communis familia vel communis servus furtum fecerit altero ex dominis sciente, is qui scit omnium nomine tenebitur et conventus alterum quoque liberat nec a socio quicquam debebit consequi: sui enim facti nomine poenam meruit. quod si is qui ignoravit duplum praestiterit, a socio simplum consequetur.
If a common household or a common slave has committed theft with one of the owners knowing, the one who knows will be held liable in the name of all, and, once sued, also releases the other; nor will he have to recover anything from his associate: for by the title of his own act he has deserved the penalty. But if the one who was ignorant has paid the double, he will obtain from his associate the simple.
Sed et eo nomine agere cum socio poterit, quod servum communem deteriorem fecit, quemadmodum cum quolibet alio, qui rem communem deteriorem fecisset. ceterum si nihil praeterea post noxae deditionem commune habebit, pro socio vel, si socii non fuerunt, in factum agi poterit.
But also on that head he will be able to sue his partner, for having made the common slave worse, just as against any other person who had made a common thing worse. Moreover, if after the noxal surrender he will have nothing else in common, an action pro socio, or, if they were not partners, an action in factum, can be brought.
Bona fide servi possessor eius nomine furti actione tenebitur, dominus non tenetur. sed noxae dedendo non facit quidem actoris: cum autem coeperit istum servum dominus vindicare, doli exceptione summovebitur vel officio iudicis consequetur, ut indemnis maneat.
The possessor of the slave in good faith will be held liable by the action for theft in his name; the owner is not held. But by surrendering for noxa he does not, to be sure, make the slave the plaintiff’s; however, when the owner begins to vindicate that slave, he will be removed by the exception of fraud, or by the office of the judge it will be achieved that the plaintiff remains indemnified.
Si bona fide possessor eum servum, quem bona fide possidebat, dimiserit, ne agi cum eo ex noxali causa possit, obligari eum actione, quae datur adversus eos, qui servum in potestate habeant aut dolo fecerint, quo minus haberent, quia per hoc adhuc possidere videntur.
If a good‑faith possessor has dismissed that slave whom he was possessing in good faith, so that he cannot be sued from a noxal cause, he is liable under the action which is given against those who have a slave in their power or have by dolus caused that they should not have him, because by this they are deemed still to possess.
Si quis a multis conveniatur ex noxa eiusdem servi, vel si ab uno, ex pluribus tamen delictis, non necesse habet, quia omnibus dedere non potest, litis aestimationem offerre his, quibus dedere non potest. quid ergo est, si a pluribus conveniatur? si quidem unus occupavit, an melior sit condicio, ut ipsi soli dedatur?
If someone is sued by many on account of the noxa of the same slave, or if by one person, yet for several delicts, he is not obliged—since he cannot surrender to all—to offer the valuation of the suit to those to whom he cannot surrender. What then is the case, if he is sued by several? If indeed one has preempted, is the condition better, that it be surrendered to him alone?
or rather ought he either to give to all, or to give security that there will be a defense undertaken against the others? and the truer view is that the condition of the one who has occupied is better. accordingly, it will be surrendered to him, not who first brought suit, but who first reached a judgment; and therefore to him who has prevailed later, the action on the judgment (actio iudicati) is denied.
Sed et si statuliber sit et ante deditionem exstiterit condicio vel fideicommissa libertas fuerit ante praestita vel existente condicione legati dominium fuerit translatum, arbitrio iudicis absolvi eum oportet: et officii iudicis hoc quoque erit, ut caveatur ei cui deditur ob evictionem ob suum factum contingentem.
But also, if he be statuliber and the condition had arisen before the surrender, or if freedom by fideicommissum had been performed beforehand, or, the condition of the legacy existing, ownership had been transferred, he ought, in the discretion of the judge, to be absolved: and this too will be the judge’s duty, that security be provided to him to whom he is given, against eviction arising from his own act.
Praetor decernere debet translationem iudicii in statuliberum fieri: si vero rei iudicandae tempore adhuc in suspenso sit statuta libertas, sabinus et cassius liberari heredem putant tradendo servum, quia toto suo iure cederet: quod et verum est.
The praetor ought to decree that the transfer of the action be made onto the statuliber: if, however, at the time of adjudicating the matter the appointed liberty is still in suspense, sabinus and cassius think that the heir is released by handing over the slave, because he would cede his whole right: and this is true.
Si ex duobus dominis uno sciente, altero ignorante servus deliquit, si ante cum altero qui nesciebat actum sit et noxae dediderit servum, iniquum est vilissimi hominis deditione alterum quoque liberari: igitur agetur et cum altero, et si quid amplius est in damni persecutione, consequetur computato pretio hominis noxae dediti. ipsi tamen inter se sic debent pensare communi dividundo iudicium, ut, si ille quo sciente fecit praestiterit, non totius partem ferat, sed partem eius, quanti servus est: sic et si alter aliquid praestiterit, eius partem fieri. illud iniquum est eum, qui iussit servum facere, consequi aliquid a socio, cum ex suo delicto damnum patiatur.
If, out of two masters, with one knowing and the other ignorant, the slave committed a delict, if previously action has been brought against the one who did not know and he has surrendered the slave by noxal surrender, it is inequitable that by the surrender of a most worthless man the other also be released: therefore action will also be brought against the other, and, if there is anything further in the persecution of the damage, he will obtain it, the price of the man surrendered for noxa being computed. They themselves, however, ought thus to balance accounts among themselves by the action for dividing common property (communi dividundo), that, if the one with whose knowledge he did it has paid, he should bear not a share of the whole, but a share of that amount corresponding to how much the slave is worth; and so too, if the other has paid anything, to make his share of it. It is inequitable that he who ordered the slave to do it should obtain anything from his associate, since he suffers the loss from his own delict.
Si plures eiusdem servi nomine noxali mecum agere velint vel si unus pluribus iudiciis eiusdem servi nomine agat, in quo usus fructus tuus, proprietas mea sit, officio iudicis continebitur, cum eum noxae dedero, ut etiam usum fructum actoris faciam: sed per praetorem id consequar ego dominus proprietatis, ut aut cogat praetor te pro aestimatione usus fructus conferre ad litis aestimationem aut usu fructu cedere, si hoc expediat. et si ego dominus proprietatis eum servum nolui defendere, defensio tibi permittenda est, et si damnatus hominem tradas, et adversus me tueris.
If several should wish to proceed against me by a noxal action in the name of the same slave, or if one brings several suits in the name of the same slave, in whom the usufruct is yours and the ownership mine, it will be contained within the office of the judge, when I have surrendered him for the wrong, that I also make the usufruct belong to the plaintiff; but through the praetor I, the owner of the ownership, shall obtain this: that either the praetor compel you, by the valuation of the usufruct, to contribute to the assessment of the suit, or to cede the usufruct, if this be expedient. And if I, the owner of the ownership, have been unwilling to defend that slave, the defense must be permitted to you; and if, having been condemned, you hand over the man, you are also protected against me.
Si in re communi mea et tua damnum nobis dederit titii servus, si cum eo agemus, erit noxali aquiliae actioni locus, ne damnatus in solidum singulis noxae dedere cogatur. sed potest dici, quasi unius damnum sit et una obligatio, aut utrisque pecuniam sufferendam aut officio iudicis simul utrisque noxae dedendum: sed et si alterutri nostrum in solidum noxae deditus fuerit et ob id ab utroque dominus sit absolutus, recte dicitur eum, cui noxae deditus sit, alteri teneri communi dividundo iudicio, ut communicet servum noxae sibi deditum, cum ob rem communem aliquid ad socium pervenerit.
If, in a thing common to me and you, Titius’s slave has caused damage to us, if we bring suit against him, there will be room for the noxal Aquilian action, lest, if condemned in solidum (for the whole) to each severally, he be compelled to surrender in noxa. But it can be said, as if the damage were of one person and there were one obligation, either that money is to be paid to both, or, by the office of the judge, that there is to be a simultaneous noxal surrender to both. But also, if to either of us the slave has been surrendered in noxa in solidum and on that account the owner has been absolved by both, it is rightly said that the one to whom he has been surrendered in noxa is liable to the other by the action communi dividundo (for dividing common property), to share the slave surrendered to him in noxa, since, on account of the common matter, something has come to him that pertains to his partner.
Si servus tuus navem exercuerit eiusque vicarius et idem nauta in eadem nave damnum dederit, perinde in te actio danda est ac si is exercitor liber et hic vicarius servus eius esset, ut de peculio servi tui ad noxam dedere vicarium damneris: ut tamen, si servi tui iussu vel sciente et patiente eo damnum vicarius dederit, noxalis actio servi tui nomine esse debeat. idemque sit etiam, si nautam facere iusserit.
If your slave has exercised a ship as exercitor, and his vicarius—who is likewise a sailor on the same ship—has caused damage, an action is to be granted against you just as if that exercitor were free and this vicarius were his slave, so that, by the action de peculio of your slave, you be condemned to surrender the vicarius for the wrong; provided, however, that if at your slave’s order or with his knowledge and sufferance the vicarius has caused the damage, the noxal action ought to be in your slave’s name. And let the same hold also if he has ordered a sailor to be appointed.
Qui ex pluribus noxis diversis temporibus experitur, ex una noxia servi dominium nanctus nullam amplius actionem habet adversus eum, qui dominus fuerat, cum actio noxalis caput sequatur: at si maluit dominus priori iudicio litis aestimationem sufferre, vel eidem vel alii ex alio maleficio agenti nihilo minus tenetur.
He who proceeds on account of several delicts at different times, having from one delict obtained ownership of the slave, has no further action against him who had been the master, since the noxal action follows the person: but if the master preferred in the prior judgment to undergo the valuation of the suit (litis aestimatio), he is nonetheless liable either to the same person or to another bringing an action from another delict.
Quotiens dominus ex noxali causa convenitur, si nolit suscipere iudicium, in ea causa res est, ut debeat noxae dedere eum, cuius nomine iudicium non suscipitur: aut si id non faciat, iudicium suscipiet omnimodo, sed non alias condemnabitur, quam si in potestate habeat dolove malo fecerit, quo minus haberet.
As often as a master is convened on a noxal cause, if he is unwilling to accept the suit, in that case the matter is that he ought to surrender for noxa the one in whose name the suit is not accepted; or, if he does not do that, he will in any event accept the suit, but he will not be condemned otherwise than if he has him in his power or has by malicious fraud brought it about that he does not have him.
Eos, quorum nomine noxali iudicio agitur, etiam absentes defendi posse placuit, sed hoc ita demum, si proprii sint servi: nam si alieni, praesentes esse oportet, aut si dubitetur, utrum proprii sint an alieni. quod ita puto accipiendum, ut si constet vel bona fide servire, etiam absentes possint defendi.
Those in whose name a noxal action is brought may be defended even while absent; but only on this condition, if the slaves are their own: for if they are another’s, they must be present, or if it is in doubt whether they are their own or another’s. I think this is to be understood thus, that if it is established that they are at least serving in good faith, such defendants may also be defended while absent.
Praetor ait: " si is in cuius potestate esse dicetur negabit se in sua potestate servum habere: utrum actor volet, vel deierare iubebo in potestate sua non esse neque se dolo malo fecisse, quo minus esset, vel iudicium dabo sine noxae deditione. "
The praetor says: " if the one in whose power it will be said to be denies that he has the slave in his own power: whichever the plaintiff wishes, either I will order him to swear that it is not in his power and that he has not acted with dolus malus to prevent its being so, or I will grant an action without noxal surrender. "
Si iusiurandum exegit actor reusque iuravit, deinde postea noxali velit actor experiri, videndum est, an exceptio iurisiurandi debeat adversus actorem dari. et sabinus putat non esse dandam, quasi de alia re sit iuratum, hoc est tunc non fuisse in potestate: modo vero cum in potestate deprehendatur, de facto eius posse agi. neratius quoque dicebat post exactum iusiurandum posse actorem detracta noxae deditione experiri, si modo hoc contendat, posteaquam iuratum est coepisse in potestate habere.
If the plaintiff has exacted an oath and the defendant has sworn, then afterwards the plaintiff wishes to proceed by a noxal action, it is to be considered whether an exception of the oath ought to be given against the plaintiff. And Sabinus thinks it ought not to be given, as if the oath were about another matter, that is, that at that time he was not in his power; but now, since he is found to be in power, one can sue for his act. Neratius also used to say that, after the oath has been exacted, the plaintiff can proceed, with noxal surrender subtracted, provided only that he contend this: that after the swearing he began to have him in his power.
Si negavit dominus in sua potestate esse servum, permittit praetor actori arbitrium, utrum iureiurando id decidere an iudicium dictare sine noxae deditione velit, per quod vincet, si probaverit eum in potestate esse vel dolo eius factum, quo minus esset: qui autem non probaverit in potestate adversarii esse servum, rem amittit.
If the master has denied that the slave is in his own power, the praetor permits the plaintiff the choice whether he wishes to have the matter decided by oath (iureiurando) or to bring a suit (iudicium dictare) without noxal surrender, by which he will prevail if he proves the slave to be in that power, or that it was by the master’s deceit that he was prevented from being so; but whoever does not prove that the slave is in the adversary’s power loses the case.
De illo videndum, utrum adversus eum tantum, qui dolo fecit, quo minus in potestate haberet, actio locum habeat noxalis, si ex dolo eius acciderit, ut cesset noxalis actio ( forte si servo suo fugam mandavit) an et si possit nihilo minus cum alio agi ( quod accidit, cum alienatus manumissusve est). quod est verius: in quo casu electio est actoris, cum quo velit agere. iulianus autem ait de eo qui manumisit, si paratus sit defendere se manumissus, exceptionem dandam ei qui manumisit. hoc et labeo.
about this it must be considered, whether a noxal action has a place against him only who by fraud brought it about that he did not have [the slave] in his power, if by his fraud it has happened that the noxal action ceases ( perhaps if he ordered his slave to flee), or also even if it can nonetheless be brought against another ( which happens, when he has been alienated or manumitted). which is the truer: in which case the choice is the plaintiff’s, with whom he wishes to sue. julian, moreover, says concerning him who manumitted, that if the manumitted is ready to defend himself, an exception is to be given to the one who manumitted. this also [is the view of] labeo.
Item si ex pluribus dominis quidam dolo malo partes suas desierint possidere, electio erit actoris, utrum directo agere velit cum eo qui possidet, an praetoria cum eo qui desiit possidere.
Likewise, if, out of several owners, certain persons, by malicious fraud, have ceased to possess their shares, the choice will be the plaintiff’s, whether he wishes to proceed by the direct (civil) action with the one who possesses, or by the praetorian action with the one who has ceased to possess.
Neque heredi neque in heredem, quod defunctus mentitus est, actio danda est, nec in ipsum quolibet tempore: nam liberum esse debet defendenti absentem servum huius edicti poenam evitare, id est ut sine noxae deditione conveniatur. et ideo si negaveris servum in tua potestate esse, postea fateri poteris, nisi si iam lis adversus te contestata est: nam tunc audiri non debebis, ut labeo ait: octavenus ex causa etiam lite contestata tibi succurrendum, utique si aetas tua ea sit, ut ignosci tibi debeat.
Neither to the heir nor against the heir is an action to be granted for what the deceased lied about, nor against him himself at any time: for it ought to be free to one defending an absent slave to avoid the penalty of this edict, that is, that he be proceeded against without noxal surrender. And therefore, if you have denied that the slave is in your power, afterward you may confess it, unless the suit has already been joined against you; for then you ought not to be heard, as Labeo says. Octavenus says that, for cause, even with the suit joined, relief should be afforded to you, especially if your age is such that you ought to be excused.
Si absente domino ductus sit servus vel etiam praesente et in eadem causa sit, ut in integrum restitui possit, defensio permittitur eius nomine qui ductus est: postulantibus enim exhiberi eum ad defendendum indulgere praetor debet. idem concedendum est fructuario vel cui pignoris nomine obligatus est, si praesens dominus defendere noluerit, ne alterius dolus aut desidia aliis noceat. idem praestandum est in servo communi, quem alter ex dominis praesens noluit defendere.
If, with the master absent, the slave has been led away—or even with him present—and the case is of such a kind that he can be restored in full (in integrum), a defense is permitted in the name of the one who has been led away: for to those requesting it the praetor ought to grant that he be produced for the purpose of defending. The same is to be conceded to the usufructuary, or to the person to whom he is bound under the title of pledge, if the master, though present, is unwilling to defend, lest another’s dolus or sloth harm others. The same is to be afforded in the case of a common slave, whom one of the owners, though present, was unwilling to defend.
Si noxali iudicio agitur de servo qui pignoris iure tenetur aut de eo cuius usus fructus alterius est, admonendi sumus, si creditor vel usufructuarius praesens defensionem suscipere noluerit, proconsulem interventurum et pignoris persecutionem vel usus fructus actionem negaturum. quo casu dici potest ipso iure pignus liberari ( nullum enim pignus est, cuius persecutio negatur): usus fructus autem, etiamsi persecutio eius denegetur, ipso iure durat eo usque, donec non utendo constituto tempore pereat.
If a noxal action is brought concerning a slave who is held by right of pledge or concerning one whose usufruct belongs to another, we must be advised that, if the creditor or the usufructuary, being present, is unwilling to undertake the defense, the proconsul will intervene and will deny the pursuit of the pledge or the action of usufruct. In which case it can be said that by the law itself the pledge is released ( for there is no pledge whose pursuit is denied): the usufruct, however, even if its pursuit is denied, lasts by operation of law until it perishes by non-use for the time set.
Ex his quae diximus de servo qui alicui pignoris iure obligatus est deque statulibero et de eo cuius usus fructus alienus est, apparet eum, qui alienum servum in iure suum esse responderit, quamvis noxali iudicio teneantur, non tamen posse noxae deditione ipso iure liberari, quia nullum ad actorem dominium transferre possunt, cum ipsi domini non sint. certe tamen, si ex ea causa traditum postea dominus vindicet nec litis aestimationem offerat, poterit per exceptionem doli mali repelli.
From what we have said about a slave who is bound to someone by the right of pledge, and about a statuliber, and about one whose usufruct is another’s, it appears that he who has answered in iure that another’s slave is his own—although they are held by a noxal action—nevertheless cannot be freed ipso iure by a noxal surrender, because they can transfer no dominium to the actor (plaintiff), since they themselves are not owners. Certainly, however, if on that account the thing delivered is later vindicated by the owner and he does not offer the litis aestimatio, he can be repelled by the exceptio doli mali.
Et generaliter si alieni servi nomine, qui tibi iustam servitutem serviret, noxali tecum egerim tuque eum mihi noxae dederis: sive me possidente dominus eum vindicet, exceptione doli mali, nisi litis aestimationem offerat, eum summovere possum, sive ipse possideat, publiciana mihi datur, et adversus excipientem " si dominus eius sit" utilem mihi replicationem doli mali profuturam et secundum haec usu quoque me capturum, quamvis sciens alienum possideam: alioquin si aliter constituatur, futurum, ut summa iniquitate bonae fidei possessor adficiatur, si, cum ipso iure noxalis actio adversus eum competit, necessitas ei imponatur, ut litis aestimationem sufferat. eademque dicenda sunt et si, cum ab eo non defenderetur, iussu praetoris eum duxerim, quoniam isto quoque casu iustam causam possidendi habeo.
And in general, if in the name of another’s slave, who would render you a just servitude, I should bring a noxal action with you and you should surrender him to me noxae: whether, I being in possession, the dominus vindicates him, by an exceptio of dolus malus, unless he offers the estimation of the suit, I can remove him; or if he himself is in possession, the Publician action is given to me, and against one pleading “ si dominus eius sit” a useful replicatio of dolus malus will be to my advantage, and according to these I shall also acquire by usucapion, although knowing that I possess another’s: otherwise, if it be established otherwise, it will come about that with the highest inequity a possessor in good faith is afflicted, if, when by the law itself a noxal action lies against him, a necessity is imposed on him to suffer the estimation of the suit. And the same things are to be said also if, when he was not defended by him, by the praetor’s order I have led him away, since in this case too I have a just cause of possessing.
Quod ait praetor, cum familia furtum faciat, ad eum modum se actionem daturum, ut tantum actor consequatur, quantum si liber fecisset consequeretur, quaeritur, utrum ad pecuniae praestationem respiciat an etiam ad noxae deditionem, ut puta si ex pretiis noxae deditorum duplum colligatur, sequentes actiones inhibeantur. sabinus et cassius putant pretium quoque noxae deditorum imputari debere, quod pomponius probat et est verum: nam et si servus indefensus ductus sit, aestimatio eius imputanda est. certe non tantum duplationis, sed et condictionis rationem habendam iulianus putat.
As the praetor says, when the household commits theft, he will grant the action in such a way that the plaintiff may recover as much as he would recover if a free person had committed it; the question arises whether he looks to payment of money or also to noxae deditio—namely, if from the prices of those surrendered for noxa the double is collected, the subsequent actions are barred. sabinus and cassius think that the price also of those surrendered for noxa ought to be imputed (credited), which pomponius approves, and it is true: for even if a slave has been led off undefended, his valuation must be imputed. certainly iulianus thinks that account must be taken not only of the doubling, but also of the condictio.
Si quis servum pigneratum, deinde a debitore subreptum emerit a debitore, nomine eius furti tenebitur dominio servi adquisito, nec oberit, quod serviana potest ei homo avocari. idemque et si a minore quis viginti quinque annis emerit vel in fraudem creditorum sciens: hi enim, quamvis auferri eis dominium possit, interim tamen conveniendi sunt.
If anyone should buy from the debtor a slave that had been pledged and then surreptitiously removed by the debtor, he will be held liable for the theft upon acquisition of ownership of the slave; nor will it be a hindrance that by the Servian action the man can be called away from him. And the same is true if someone should buy from a minor under twenty-five years, or knowingly in fraud of creditors: for these persons, although ownership can be taken away from them, nevertheless in the meantime are to be convened (sued).
Si alienus servus furtum mihi fecerit, qui postea in meum dominium pervenerit, extinguitur furti actio, quae mihi competierat, nondum in iudicium deducta, nec si postea alienavero eum, quem ante litem contestatam emeram, furti actio restaurabitur: quod si post litem contestatam eum redemero, condemnandus erit venditor,
If another’s slave has committed theft against me, and afterwards has come into my ownership, the action for theft which had accrued to me, not yet brought into judgment, is extinguished; nor, if afterwards I alienate him whom I had bought before the suit was joined, will the action for theft be restored: but if after the suit was joined I buy him back, the seller must be condemned,
Si plurium servus furtum fecerit et omnes dolo fecerint, quo minus eum in potestate haberent, subsequi debet praetor iuris civilis actionem et iudicium honorarium, quod ex hac causa pollicetur, in eum dare, quem actor elegerit: neque enim amplius praestare actori debet, quam ut detracta noxae deditione agere possit cum eo, cum quo noxali iudicio experiri potuisset, si servus exhiberetur.
If the slave of several has committed theft, and all have acted with fraud so that they might not have him in their power, the praetor ought to follow up the civil-law action and to grant the praetorian judgment, which he promises from this cause, against him whom the plaintiff shall have chosen; for he ought not to afford the plaintiff more than this: that, with noxal surrender removed, he may be able to sue the one with whom he could have proceeded by a noxal judgment, if the slave were produced.
Qui alienum servum suum esse fatetur, quamvis noxali actione obligetur, nihilo minus causa cognita satisdare debet: qui autem pro servo convenitur, satisdatione onerandus non est: non enim offert se defensioni alieni servi.
He who confesses that another’s slave is his own, although he is bound by a noxal action, nonetheless, once the cause has been inquired into, ought to give security; but he who is sued on behalf of a slave is not to be burdened with a giving of security: for he does not offer himself to the defense of another’s slave.
Si servus legatus ante aditam hereditatem rem heredis futuri subtraxerit, poterit is cum legatario qui legatum agnoverit furti agere: sed si idem servus hereditariam rem subtraxerit, furti actio cessabit, quia huiusmodi rerum furtum non fit: ad exhibendum autem actio competit.
If a slave who has been bequeathed, before the inheritance has been entered upon, has subtracted a thing of the future heir, he will be able, together with the legatee who has acknowledged the legacy, to bring an action for theft: but if the same slave has subtracted an hereditary thing, the action for theft will cease, because theft of things of this kind does not come about: however, the action ad exhibendum is available.
Cum servus communis alteri dominorum damnum iniuria dedit, idcirco legis aquiliae actio non est, quia, si extraneo damnum dedisset, cum altero in solidum lege aquilia agi posset: sicuti, cum servus communis furtum fecerit, cum altero domino furti agi non potest, sed communi dividundo agi potest.
When a common slave has wrongfully caused damage to one of his masters, therefore there is no action under the Aquilian law, because, if he had caused damage to an outsider, one could proceed against either co-owner for the whole under the Aquilian law; just as, when a common slave has committed theft, one cannot sue one master for theft, but one can proceed by the action communi dividundo.
Hae actiones perpetuae sunt locumque habebunt tamdiu, quamdiu servi dedendi facultatem habemus: nec tantum nobis, verum etiam successoribus nostris competent, item adversus successores, sed non quasi in successores, sed iure dominii. proinde et si servus ad alium pervenisse proponatur, iure dominii noxali iudicio novus dominus convenietur.
These actions are perpetual and will have place so long as we have the capacity to deliver up the slave; and they will be competent not only to us, but also to our successors, likewise against successors—yet not as if against successors, but by right of ownership. Accordingly, even if it is alleged that the slave has come to another, the new owner will be sued by a noxal action by right of ownership.
Servi, quorum noxa caput sequitur, ibi defendendi sunt, ubi deliquisse arguentur: itaque servos dominus eodem loco exhibere debet, ubi vim intulisse dicentur et carere omnium dominio potest, si eos non defendat.
Slaves, whose noxal liability follows the person, must be defended there where they are alleged to have committed the delict: therefore the master ought to produce the slaves in the same place where they are said to have inflicted violence, and he can be made to forfeit dominion over them all, if he does not defend them.