2. In this actio it is not necessary that the thing should have been a part of the goods of the plaintiff; for whether it has been a part of his goods or not, yet if it has been taken from among his goods, the actio may be brought. Consequently, if anything has been let, lent or given in pledge to Titius, or deposited with him, so that he has an interest in its not being taken away by force, as, for instance, he has engaged to be answerable for any fault committed respecting it; or if he possesses it bona fide, or has the usufructus of it, or has any other legal interest in its not being taken away by force, this actio may be brought, not to give him the ownership in the thing, but merely to restore him what he has lost by the thing being taken away from out of his goods, that is, from out of his property.
And generally, we may say, that the same causes which would give rise to an actio of theft, if the theft is committed secretly, will give rise to this actio, if it is committed with force.
III. The Lex Aquilia.
The actio damni iniuriae is established by the lex Aquilia, of which the first head provides that if anyone shall have wrongfully killed a slave, or a four-footed beast, being one of those reckoned among cattle belonging to another, he shall be condemned to pay the owner the greatest value which the thing has possessed at any time within a year previous.
1. As the law does not speak generally of four-footed beasts, but only of those which are reckoned among cattle, we may consider its provision as not applying to dogs or wild animals, but only to animals which may be properly said to feed in herds, as horses, mules, asses, sheep, oxen, goats, and also swine, for they are included in the term “cattle,” for they feed in herds. Thus Homer says, as Laelius Marcianus quotes in his Institutes:
You will find him seated by his swine,
and they are feeding by the rock of Corax,
near the spring Arethusa.
2. To kill wrongfully is to kill without any right: consequently, a person who kills a thief is not liable to this actio, that is, if he could not otherwise avoid the danger with which he was threatened.
3. Nor is a person made liable by this law who has killed by accident, provided there is no fault on his part, for this law punishes fault as well as wilful wrong-doing.
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