王名扬法国行政法第9卷.docVIP

THE DIGEST OR PANDECTS. BOOK IX. TITLE I. CONCERNING THE COMMISSION OF DAMAGE BY A QUADRUPED. 1. Ulpianus, On the Edict, Book XVIII. Where a quadruped is said to have committed damage, an action which has come down from a Law of the Twelve Tables may be brought; which Law prescribes that either whatever caused the damage must be given up, that is, that the animal that committed it shall be surrendered, or an amount of money equivalent to the damage shall be paid. (1) The term noxia means the offence itself. (2) This action has reference to every kind of quadruped. (3) The pr?tor says pauperiem fecisse, which signifies the damage caused without wrong by the animal which commits it, for an animal cannot be guilty of wrong in law, because it is deficient in reason. (4) Therefore, as Servius states, this action is available where an animal commits damage after its ferocity has been aroused; for example, where a horse which has the habit of kicking, kicks, or an ox which is accustomed to butt, does so; or a mule commits damage by reason of extreme savageness. But if an animal should upset a load on anyone on account of the inequality of the ground, or the negligence of the driver, or because the animal was overloaded; this action will not lie, but proceedings must be instituted for wrongful injury. (5) Where, however, a dog, while he is being led by someone, breaks away on account of his viciousness, and inflicts injury upon another; then if he could have been held more securely by some one else, or if the party should not have led him through that place, this action will not lie, and the party who had charge of the dog will be liable. (6) Moreover, this action will not lie if the savage animal causes any damage through the instigation of another. (7) And, generally speaking, this action can be brought whenever a savage animal does any damage which is contrary to its nature, and, therefore, if a horse irritated by pain, kicks, this action will not lie; but the party who