BOOK pacit, talio esto'. This gave the offending party IV. the option of making amends, ni cum eo pacit, i. e. paying 300 aurei in case of a liber homo, and 150 in case of a slave, or of suffering the same himself. This law soon became inconsistent with a more refined state of society, and the Prætor interfered by his edict in the case of all injuries where the complainant could prove damage either to person or character; which the reader will find treated of by Ulpian, in Law 15, D. 47, 10, and which should be consulted. Penalty. were corpori, The penalty imposed by the Prætor was pecuniary. The injured party was allowed to state his damages, and the Judex before whom the case was tried awarded such a sum as the nature of the case Injuries required. The cases reported in the Digest are very numerous, and have reference to such injuries as may be done to the body, corpori; the dignity, dignitati; or to the character, famas. Not only he who committed a battery, but all who aided and abetted him, were liable. Si quis pulsatus quidem non est, verum manus adversus eum levatæ, had his dignitati, remedy for an assaults. A case affecting the dignity would be the abduction of the comes, the page or attendant of a woman of rank. famæ. Character, fama, might be injured by acts, words, writing, or painting. By pertinaciously following a virtuous woman, and blanda oratione pudicitiam adtemptando. Or by raising a convicium, a public slander, against any one, as by inducing others to join in such abusive expressions as were adversus bonos mores, quæque ad infamiam alicujus spectarents; or by writing and publishing that which defamed or ridiculed the character of another; also, the injuria picta, which consisted of a painting, or caricature, of an obscene or defamatory I. nature. In all cases where the character of ano- CHAP. ther was assailed, the truth of the allegation was a sufficient defence to an action, the rule being, Eum qui nocentem infamavit non esse bonum æquum ob eam rem condemnari. Peccata enim nocentium nota esse et oportere, et expedire. Such being damnum absque injuria. The Prætorian remedy not having been con- Lex Corsidered sufficient to restrain the commission of in- nelia. juries, the Lex Cornelia de injuriis was passed, it is supposed, by L. Cornelius Sulla, the Dictator, about the year U. c. 672, by which an action lay against those qui aliquem pulsassent, vel verberassent, vel domum alienam vi introissent2, the directarii, who entered houses secretly for the purpose of robbery, qui in aliena canacula se dirigunt furandi animo3. This law took cognizance of every injury occasioned by force; and gave a civil action also in the case of a libel, and rendered the author intestabilis; incapable of being a witness, or of making a will. The difference between verberation and pulsation Verberawas, that the former was cum dolore, where suffering was inflicted, the latter was sine dolore, where Pulsation. the act was done ignominia causa. The punishment by the Lex Cornelia was banishment, or con- Punishdemnation, ad metalla, or, in opus publicum. The ment. prætorian action must be brought within the year, but the civil action under the Lex Cornelia might be brought for thirty years, and the criminal for twenty; and the plaintiff had his choice whether he would proceed civilly or criminally". These actions did not lie for or against the heir, because actio personalis moritur cum persona; and ex delicto defuncti heres non tenetur. 1 D. XLVII. 10. 18. 3 D. XLVII. II. 7. 5 Id. 5. 9. 2 Id. 5. and Hein. Ant. IV. 4. 8. 4 D. XLVII. 10. 5. 6 Paul. R. S. v. 4. 8. tion. 7 Hein. Ant. IV. 4. 10. BOOK IV. Quasi de licta. Definition. Erroneous judge. CHAPTER II. Obligations quasi ex Delicto. QUASI delicta are defined as facta illicita sola culpa sine dolo admissa'; unlawful acts committed carelessly without any evil intent. Four cases are mentioned in the Institutes2: I. An erroneous sentence given by a Judge. 2. Things thrown or poured from a house. 3. Things hung or placed so as to be dangerous to those who passed under. 4. Things damaged or stolen in a ship or inn. I. Si judex litem suam fecerit, that is, if by decision of his imperitia, which was equivalent to culpa, a judge gave a wrong decision, he made himself liable quasi ex maleficio, and was amenable to such a fine (mulcta) as met the justice of the case3; but if he acted dolo malo, in which case it was verum delictum, he was bound to pay all costs of suit. It is probable, as Dr Colquhoun remarks, that penalties were not enforced against judges, unless where their errors were very glaring, since in a manifestly wrong judgment the suitor might have redress by the restitutio in integrum. Things poured from a house: 2. Things dejecta vel effusa, thrown or poured thrown or from a house where there was a public thoroughfare, and so likely to occasion damage to those who passed, constituted a quasi delictum, the remedy for which was provided by the Prætor's Edict5; the material words of which are, in eum locum quo vulgo iter fiet, vel in quo consistetur dejectum, vel effusum quid erit. It mattered not whether it were a public or private foot-way, or place of 1 Hein. El. 1112. 2 I. IV. 5. 4 C. VII. 49. 2. 5 D. IX. 3. I. CHAP. II. resort, the object being to protect all who had a right of passage from danger or annoyance. The Edict included all cases where things were thrown from the upper windows of a house by the inhabitant'. If several persons occupied the room in who liable. common from which the things were thrown, the action might be brought against each; but if the room were divided, the action lay against him only from whose window the things were thrown3. The penalty was double the damage, to be paid by the inhabitant. If a liber homo were killed, the penalty was 50 aurei, if only wounded, Gaius says, Penalty. he was entitled to all his expenses, including the bill of his medical attendant, and his loss of time*. 3. When things were hung or placed in such Things a way as to be dangerous to those who passed suspended. under them, the owner was punishable by fine, whether any one were hurt by their fall or not. The Prætor here imposes a fine of 10 solidi upon those who placed or suspended things from the roof or eaves of a house or other building, qua vulgo inter fiet sive quo consistetur. It was not necessary that damage should be absolutely done, it was enough if it were likely to happen. The words of the Edict are cujus casus nocere possit, which, Ulpian considers, involved every case where there was a possibility of damage from the things so placed or suspended. Unless that were so it was no case of damnum infectum, and the Edict did not apply. The accidental falling of a shopkeeper's sign-board from the wall, or of a cask while being slung up, did not come within the Edict. Penalty. stabularii. 4. Ait Prætor nautæ, caupones, stabularii quod Nautre caucujusque salvum fore receperint, nisi restituant in pones et eos judicium dabo. The Prætor here provides against the loss of property whilst in the hands of 1 D. IX. 3. I. 4. 4 D. IX. 3. 7. 6 Id. 5. II. 2 Id. 1. 10. 5 D. IX. 3. 5. 6. 3 Id. 5. IV. BOOK carriers by water and inn-keepers; for, as Ulpian observes, we are not to take the term nauta in the sense of a common sailor, nautam accipere debemus eum qui navem exercet1; he who has the management of a ship as a carrier by water, is answerable quasi ex delicto for the acts of his nautæ, common sailors and others, if property committed to his care be stolen or destroyed. The caupo and stabularius, the inn-keeper and stable-keeper are respectively liable for the acts of their servants in the safe custody of the property belonging to those who stop at their houses; for though they are no more liable primarily for custodia than the fullo or sarcinator, still they are held responsible for the acts of their servants if property be stolen or damaged whilst in their possession. Ulpian is of opinion that the property need not be specially assigned, but if put on board the vessel this would be enough to charge the exercitors; and the same inference may be drawn as to the caupo and stabularius; but he remarks, that if the exercitor prædixerit had duly given notice that he would not be answerable for the property on board his ship, and the owner agreed to it, consenserit prædictioni, he had no remedy against the exercitor if the property were lost. of the Edict. Ulpian discusses the reason and necessity for this Edict, because a civil action would lie against these carriers and inn-keepers in various ways: Importance First, the actio furti ex vero delicto; but in such case it would be necessary to prove that the owner or landlord himself had been guilty of the offence. Secondly, the actio ex locato vel conducto; but here it is essential to prove culpa. Thirdly, the actio depositi would not lie unless the reception of the property were gratuitous, and then you must prove dolus. Fourthly, the actio de Fourthly, the actio de recepto would lie, because having received the property, the re |