[IULIANUS libro octagensimo sexto digestorum. ] §9.2.51.prIta uulneratus est seruus, ut medio deinde tempore heres institutus est et postea ab alio ictus decessit: quaero, an cum utroque de occiso lege Aquilia agi possit.
[JULIANUS, in the eighty-sixth book of the Digests.] A slave was wounded in such a way that, in the intervening time, he was appointed heir, and afterwards, having been struck by another, he died: I ask whether an action can be brought against both of them under the Lex Aquilia for his death.
respondit: occidisse dicitur uulgo quidem, qui mortis causam quolibet modo praebuit: sed lege Aquilia is demum teneri uisus est, qui adhibita ui et quasi manu causam mortis praebuisset, tracta uidelicet interpretatione uocis a caedendo et a caede.
He replied: Commonly, indeed, he is said to have killed who has provided the cause of death in any way whatever; but under the Lex Aquilia, only he has been deemed to be held liable who, by applying force and as it were with his own hand, had provided the cause of death, the interpretation of the word being evidently derived from "slaying" and "slaughter".
rursus Aquilia lege teneri existimati sunt non solum qui ita uulnerassent, ut confestim uita priuarent, sed etiam hi, quorum ex uulnere certum esset aliquem uita excessurum.
On the other hand, those were deemed to be held liable under the Lex Aquilia who had not only wounded in such a way as to deprive of life immediately, but also those from whose wound it was certain that someone would depart from life.
igitur si quis seruo mortiferum uulnus inflixerit eundemque alius ex interuallo ita percusserit, ut maturius interficeretur, quam ex priore uulnere moriturus fuerat, statuendum est utrumque eorum lege Aquilia teneri.
Therefore, if anyone inflicts a mortal wound on a slave, and another person after an interval strikes him in such a way that he is killed sooner than he would have died from the first wound, it must be established that both of them are held liable under the Lex Aquilia.
§9.2.51.1Idque est consequens auctoritati veterum, qui, cum a pluribus idem servus ita vulneratus esset, ut non appareret cuius ictu perisset, omnes lege aquilia teneri iudicaverunt.
And this is consistent with the authority of the ancients, who, when the same slave had been so wounded by several persons that it was not apparent by whose blow he had perished, judged that all were held liable under the Lex Aquilia.
§9.2.51.2Aestimatio 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.
However, the valuation of the slain slave will not be made in the same way in the person of each of the two: for he who wounded first will pay as much as the slave was worth at his highest value within the preceding year, counting three hundred and sixty-five days back from the day of the wound; whereas the subsequent one will be held liable for as much as the slave could have been sold for at his highest value in the preceding year from the time he departed this life, in which value there will also be the price of the inheritance.
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.
Therefore, under the name of the same slain slave, one will pay a higher valuation and the other a lower; nor is this surprising, since each of them is understood to have killed the man from a different cause and at different times.
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.
But if anyone should think that these rules are established by us absurdly, let him consider that it would be far more absurd to establish that neither is held liable under the Lex Aquilia, or rather one of them, since wrongdoings ought not to go unpunished, and it cannot easily be determined which of them should rather be held liable under the law.
multa autem iure civili contra rationem disputandi pro utilitate communi recepta esse innumerabilibus rebus probari potest: unum interim posuisse contentus ero.
Furthermore, that many things have been accepted in the civil law contrary to the strict logic of argument for the sake of common utility can be proved by innumerable instances; for the present, I shall be content to have set down one.
cum plures trabem alienam furandi causa sustulerint, quam singuli ferre non possent, furti actione omnes teneri existimantur, quamvis subtili ratione dici possit neminem eorum teneri, quia neminem verum sit eam sustulisse.
When several persons, for the purpose of stealing, have carried off another's beam which individuals could not carry, all are deemed to be held liable under the action for theft, although by a subtle reasoning it might be said that none of them is held liable, because it is not true that any single one of them carried it off.