damage was allowed to free the defendant as in the case of theft. Damage done to a freeman's own body was hardly within the words of the statute; and compensation could be obtained only by an analogous action.
The third class was confined to cases of malicious insult but had a very wide range. It included blows or any violence to plaintiff or his family, abusive language, libellous or scandalous words, indecent soliciting, interference with his public or private rights. Not only the actual perpetrator of the insult, but anyone who procured its doing, was liable. The character of the insult was differently estimated according to the rank of the person insulted and the circumstances of the action. The damages on conviction were, under a law of Sulla which in principle remained till Justinian, assessable by plaintiff subject to the check of the judge. Many of these acts, especially when of an aggravated character, were punished criminally, even by banishment or death.
A fourth class of torts (sometimes called quasi ex delicto) makes defendant liable not for his own act but for injury caused by anything being thrown or falling from a room occupied by him near a right of way, or for theft or injury perpetrated in a shop or tavern or stable under his control. The penalty is put at double the estimated damage, except that, if a freeman is hurt, no estimate of damage to a free body was held possible, and the penalty was therefore the amount of medical expenses and loss of work: if he was killed, it was put at fifty guineas (aurei).
Procedure. In classical times the parties after summons approached the praetor and asked for the appointment of a judex to hear and decide the suit. Instructions proposed by plaintiff and sometimes modified by the praetor at the request of the defendant were agreed to by the parties, who then joined issue, and the formula containing these instructions was sent to the judex named. The judex heard and decided the case, and, if he found against the defendant, condemned him in a certain sum as damages. But in some few matters the praetor, instead of appointing a judex in the ordinary course, kept the whole matter in his own hands. This extraordinary procedure became in Diocletian's time the ordinary procedure, and the praefect or the governor of a province or the judex appointed by them heard the case from the first without any special instructions. In the fourth century the case was initiated by a formal notice (litis denuntiatio) to the defendant; but in Justinian's time by plaintiff's presenting to the Court a petition (libellus) containing his claims on the defendant, who was then summoned by the judge to answer it. If he did not appear, the judex after further summons examined and decided the matter in his absence.
Either party before joinder of issue had the right of refusing the judex proposed by the governor, etc. Three days were then allowed them to choose an arbitrator, and in case of disagreement the governor or other authority appointed. Jews' suits whether relating to their own
