Ad Dig. 4,9,6ROHGE, Bd. 17 (1875), Nr. 12, S. 40: Haftung des Gastwirths für die Sachen eines Reisenden ohne Rücksicht auf die Dauer und Bezahlung der Beherbergung.Paulus, On the Edict, Book XXII. Although you may be transported in a ship without charge, or be entertained gratuitously in an inn, still, an action in factum will not be refused you if your property is unlawfully damaged. 1If my slave is attending you on board a ship, or in an inn, and he injures my property, or steals it; although I will be entitled to actions on the ground of theft, or damage to property, yet in this instance, the action, because it is in factum can be brought against you, even on account of the act of my slave. The same rule applies if the slave is our common property; still, whatever you pay me on account of what he may have done, whether you were liable in an action for partition, or in an action on partnership, or where you hired only a share in said slave, or all of him, you can hold me liable on the contract also. 2But where some injury has been committed against the said slave by someone else, on the same ship, or in the inn, whose acts the Prætor is accustomed to investigate, Pomponius does not think that this action can be brought on account of the slave. 3An inn-keeper is also liable to the action in factum, on account of those who have lodgings in the inn, but this rule does not apply to a party who is entertained as a transient guest, as, for instance, a traveller. 4We can also have recourse to an action of theft, or for damages against sailors, if we can prove the act of any particular person; but we should be content with one action, and if we proceed against the owner of the vessel, we must assign to him our right of action; although an action based upon hiring will lie in his favor against the other party. Where, however, the owner is discharged from liability in this action, and the party injured then brings suit against the sailor: an exception will be granted the latter, in order to prevent frequent trials being held on account of the conduct of the same man. On the other hand, if proceedings are instituted on account of the conduct of one man, and afterwards an action in factum is brought against the owner, an exception will be granted.

Paulus, On the Edict, Book XXII. This action will lie, not only in favor of the owner of the damaged property, but also in favor of any party in interest; as for instance, of one to whom the property was loaned, and also of a fuller, because those who are liable are held to have sustained damage. 1Where anyone who is trying to escape from another, for example, from a magistrate, betakes himself to a neighboring shop and is bitten there by a ferocious dog, certain authorities hold that he has no right of action on account of the dog; but that he would have one if the dog was loose.

Paulus, On the Edict, Book XXII. An equitable action will be available under these circumstances where the damage was committed, not by a quadruped but by some other animal.

Paulus, On the Edict, Book XXII. As extreme severity on the part of an instructor is attributed to negligence.

Paulus, On the Edict, Book XXII. For a dangerous game should be classed as an act of negligence,

Paulus, On the Edict, Book XXII. But where the heir himself kills the slave, it has been established that an action against him must be granted to the legatee.

Paulus, On the Edict, Book XXII. Ad Dig. 9,2,22 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 285, Note 12.Hence if you have killed a slave whom I had contracted to deliver to some party under a penalty, the benefit to be derived by me must be considered in the hearing of the case. 1The personal qualities of the slave must also be taken into consideration in making the estimate, as for instance, where someone kills a slave who belonged to a troop of actors or singers; or one of twins; or one of a team of four horses; or the male or female of a pair of mules; for, under such circumstances, not only should an estimate be made of the value of the animal that is destroyed, but the depreciation of those that remain must also be taken into account.

Paulus, On the Edict, Book XXII. This point is more clearly shown where a slave is said to be wounded; but if the defendant should confess that he has wounded him, and this was not the case, upon what wound are we to base the appraisement, or to what date are we to refer?

Paulus, On the Edict, Book XXII. Suppose, for example, that the person against whom the action is brought should confess that he killed the slave, and be prepared to pay his appraised value, and his adversary makes a very high estimate of the same.

Paulus, On the Edict, Book XXII. Where anyone kills the slave of another who is caught in adultery he will not be liable under this law. 1Ad Dig. 9,2,30,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 249, Note 5.Where a slave given by way of pledge was afterwards killed, an action will lie in favor of the debtor, whether the creditor is entitled to a prætorian action on account of his interest in the slave, for the reason that the debtor is not solvent; or because he has lost his right of action by lapse of time, is a question. But it is unjust that the party should be liable to both the owner and the creditor, unless someone might hold that the debtor, in this instance, had not sustained any injury, since he had profited to the amount of the debt, and anything above that amount he could recover from the creditor; or, in the beginning, an action will be granted to the debtor for any amount in excess of the debt. Hence, in those instances in which an action should be granted to the creditor on account of the poverty of the debtor, or because he has lost his right of action, the creditor will be entitled to bring suit under the Lex Aquilia for the amount of the debt, and this will benefit the debtor to that extent; and an action under the Lex Aquilia will lie in favor of the debtor for the amount of legal damages over and above the debt. 2Where anyone consumes wine or grain belonging to another he is not held to have committed wrongful damage; and therefore a prætorian action should be granted. 3Ad Dig. 9,2,30,3ROHGE, Bd. 20 (1877), Nr. 96, S. 382: Schaden durch Ausbringen eines Ankers im Hafen ohne Bezeichnung.In the action which arises out of this Section, malice and negligence are punished. Therefore, where anyone sets fire to his stubble or thorns for the purpose of burning them, and the fire increases and spreads so as to injure the wheat or vines of another; we must ask whether this happened through his want of skill, or his negligence; for if he did this on a windy day he is guilty of negligence, as a person who affords an opportunity for the commission of damage is considered to have caused it; and he is equally guilty if he did not take precautions to prevent the fire from spreading. If, however, he took all necessary precautions, or a sudden, violent gust of wind caused the fire to spread, he is not guilty of negligence. 4Where a slave is wounded but not mortally, and dies from neglect, an action can be brought for wounding, but not for killing him.

The Same, On the Edict, Book XXII. Moreover, anyone can bring suit against his joint-owner on the ground that he has depreciated the value of the slave; just as he could against anyone else who depreciated the value of property owned in common. If, however, he held nothing in common after the surrender of the slave, he can bring an action on partnership, or if they were not partners he can bring an action in factum.

Paulus, On the Edict, Book XXII. Where a slave who belongs to two owners commits an offence with the knowledge of one of them but without that of the other, if suit is brought against the one who is ignorant of the fact and he surrenders the slave by way of reparation, it is unjust that by the surrender of a worthless slave the other owner should be free from liability; hence suit can be brought against the latter also, and if in the attempt to collect damages anything more is obtained, the plaintiff will be entitled to it after calculation of the value of the slave surrendered has been made. The joint-owners, however, should divide their claims in an action for the division of common property in such a way that if the one who had knowledge of the act should make payment, he will not be entitled to a portion of all of it, but to a portion of the amount that the slave was worth; and if the other paid anything, he will be entitled to credit for his share. It is not just that the owner who ordered the slave to commit the offence should obtain anything from his fellow-owner, since the loss that he sustains is the result of his own misconduct. 1Where several persons wish to bring a noxal action against me on account of the same slave, or one party brings suit in several actions with reference to the same slave, he being one in whom you have an usufruct and I the mere ownership, it is part of the duty of the judge, when I surrender the slave by way of reparation, to provide that I transfer to the plaintiff the usufruct in him also; but I, as the mere proprietor, can apply to the Prætor to have him compel you to contribute to the estimated damages in proportion to the value of the usufruct, or to assign the usufruct, if this is more expedient. But if I, the mere owner, refuse to defend the action brought with reference to the slave, you should be permitted to defend it, and if, having lost it, you deliver the slave, you will be protected against me.

Paulus, On the Edict, Book XXII. Where a slave of Titius does some damage to property owned by you and me in common, and we institute proceedings against Titius, a noxal action under the Lex Aquilia will lie; and if he loses the suit he will be compelled to surrender the entire slave to us separately. It may be stated, however, as in the case where both the damage and the claim for it are acquired by one person alone, either the money should be tendered to both of us, or the slave be surrendered to both of us at the same time by order of court. Nevertheless, if the slave is surrendered to either of us without division of ownership, and on this account the owner is released from liability to both of us, it is very properly held that he to whom a surrender was made is liable to the other in an action for the division of common property, to compel him to transfer a share of the slave that was surrendered, since this is something which has come into the hands of the joint-owner through property held in common. 1Where the mere owner of a slave leases the services of the latter in whom someone else has the usufruct, the words of the Edict indicate that if judgment is rendered against him he will have the choice of surrendering the slave by way of reparation. 2Where your slave has charge of a ship, and his underslave, who is also a sailor on said ship, causes some damage, an action should be granted against you, just as if the party in charge was free, and the slave belonged to him; so that you will be ordered by the court to surrender the said slave by way of reparation as part of the peculium of your slave; although if the second slave committed the damage by order of your slave or with his knowledge and sufferance, a noxal action should be brought against you on account of your slave. The result will be the same if your slave should order a sailor to commit the act.

Paulus, On the Edict, Book XXII. Where a person who is interrogated with reference to a slave who has commited damage, answers that the slave is his, he will be liable under the Lex Aquilia as owner; and if the action is brought against him who answers, the real owner will be released from liability in said action.

Paulus, On the Edict, Book XXII. Where a slave whom I lent you commits a theft, the question arises whether a counter action on loan will be sufficient, just as this would lie if you had spent any money for the cure of the slave; or whether you can bring an action for theft? And, there is no doubt that the party who requested the loan can bring a noxal action for theft, and that the lender is liable to a counter action on loan, since he made the loan knowing that the slave was dishonest, while the other party was ignorant of the fact.

Paulus, On the Edict, Book XXII. If I lease you a house and my slaves cause you any damage, or commit a theft, I am not liable to you on the lease, but in a noxal action. 1If I lease you a slave to be employed in your shop, and he commits a theft, it may be doubted whether an action on hiring will be sufficient in this instance; for it is far from being in accordance with the good faith implied by the contract that you should suffer any loss on account of the property which you have hired; or should it be stated that, in addition to the right of action based on the hiring, there is also one on the ground of the crime of theft, and that this offence gives rise to a peculiar right of action of its own? This is the better opinion.

The Same, On the Edict, Book XXII. Whenever the law introduces an obligation, unless it is especially provided that we shall only make use of one action, even ancient actions will lie for this purpose. 1If two actions for the same cause can be brought, and the plaintiff could have recovered a larger sum by making use of the other, which he did not bring, it will be the duty of the court to render a decision in his favor for that amount; but if he could only have recovered the same sum, or less, the second action will be of no advantage to him.

Paulus, On the Edict, Book XXII. Where, however, proceedings have been brought under the Aquilian Law for trees cut down, and judgment under the interdict Quod vi aut clam has been rendered, the defendant will be discharged, if, under the first decision, he has made a sufficient payment; but suit under the Law of the Twelve Tables can still be brought.

Paulus, On the Edict, Book XXII. Anyone who takes property by force is liable to the action of non-manifest theft for double damages, and to the action of robbery with violence for quadruple damages. If the action for robbery with violence is first brought, that of theft will be refused. If that for theft is first brought, the other will not be refused, but only what exceeds the amount included in the first suit can be recovered.

Paulus, On the Edict, Book XXII. Anyone who fraudulently relinquishes possession has judgment rendered against him as the possessor, because his fraud renders him liable as possessor.