of theft will lie, the action on robbery will lie
at suit of the same person, if it be taken with violence.

TITLE III. OF THE LEX AQUILIA

Unlawful damage is actionable under the lex Aquilia, whose first chapter
provides that if a slave of another man, or a quadruped from his flocks
or herds, be unlawfully killed, the offender shall pay to the owner
whatever was the highest value thereof within the year next immediately
preceding.

1 From the fact that this enactment does not speak of quadrupeds simply,
but only of such quadrupeds as are usually included under the idea of
flocks and herds, it is to be inferred that it has no application to
wild animals or to dogs, but only to such beasts as can properly be said
to graze in herds, namely horses, mules, asses, oxen, sheep, and goats.
It is settled, too, that swine come under its operation, for they are
comprehended in 'herds' because they feed in this manner; thus Homer in
his Odyssey, as quote by Aelius Marcianus in his Institutes, says, You
will find him sitting among his swine, and they are feeding by the Rock
of Corax, over against the spring Arethusa.'

2 To kill unlawfully is to kill without any right; thus a man who kills
a robber is not liable to this action, if he could in no other way
escape the danger by which he was threatened.

3 So, too, where one man kills another by misadventure, he is not liable
under this statute, provided there is no fault or carelessness on his
part; otherwise it is different, for under this statute carelessness is
as punishable as wilful wrongdoing.

4 Accordingly, if a man, while playing or practising with javelins, runs
your slave through as he passes by, a distinction is drawn. If it be
done by a soldier in his exercising ground, that is to say, where such
practice is usually conducted, he is in no way to blame; but if it be
done by some one else, his carelessness will make him liable; and so
it is with the soldier, if he do it in some place other than that
appropriated to military exercises.

5 So, too, if a man is trimming a tree, and kills your slave as he
passes by with a bough which he lets fall, he is guilty of negligence,
if it is near a public way, or a private path belonging to a neighbour,
and he does not call out to give people warning; but if he calls out,
and the slave takes no pains to get out of the way, he is not to blame.
Nor would such a man be liable, if he was cutting a tree far away from
a road,