Unlawful damage is actionable undcr the lex Aquilia, whose

first chapter providcs that if a slave of another man, or a quad-

ruped fromhis flocksorhcrds, beunlawfullykilled, theoffender

shall pay to the owner whatever was the highest value thereof

1 within the year next immediately preceding. From the fact
that this enactment does not speak of quadrupeds simply, but
only of such quadrupcds 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, namely, horses, mules,
asses, oxen, sheep, and goats. It is settled too that swine
come under its operation, for theyarecomprchended in'herds'^
because they feed in this manner ; thus Homer in his Odyssey,
as quoted by Aelius Marcianus in his Institutes, says, ' You will
find him sitting among his swine, and they are feeding by the

2 Rock of Corax, over against the spring Arethusa V 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

3 escape the danger by which he was threatened. So too where
one man kills another by misadventure, he is not liable under
this statute, providcd there is no fault or carelessness on his
part ; otherwise it is different, for under this statute care-

4 lessness is as punishable as wilfu! wrong-doing. Accordingly,.
