materials of building or work belonging to another to appropriate them to their own use, L. 16. tit. 14. P. 7. [L. 16. tit. 14. P. 7.] 5th, Persons also commit theft42 who change the landmarks or boundaries of an estate or town (termino), L. 30. tit. 14. P. 7. [L. 30. tit. 14. P. 7.] 6th, That there is theft of the thing itself, of the possession, and of the use thereof. Theft of the thing is committed by taking any thing movable, whether it be animate or inanimate, LI. 19. and 22. tit. 14. P. 7.43 [Ll. 19. and 22. tit. 14. P. 7.] The debtor who takes away the thing which he had given in a pawn (en prenda) to his creditor commits theft of the possession, L. 9. tit. 14. P. 7. [L. 9. tit. 14. P. 7.] He who uses a thing for other purposes than those for which it was granted or lent commits theft of the use, L. 3. tit. 14, P. 7. [L. 3. tit. 14. P. 7.] Besides the distinction of theft into manifest and occult, of which L. 2. tit. 17. P. 4. [L. 2. tit. 17. P. 4.] speaks, we are ac[226] quainted also with that of a simple and qualified (calificado) theft; the first is made without noise or violence (estrepito), and the second with arms, fracture or breaking" (quebrantamiento), &c. Simple theft is distingnished into petty and great, according to the quantity or value (cantidad), 45 of what is stolen; and therefore it is left to the discretion of the judge to consider of the quality of the thief, of the thing stolen, &c., in order to impose the punishment. The action of theft is instituted (se instaura) by the owner of the thing or his heir, against the thief and his accomplices, L. 4. tit. 14. P. 7.;46 [L. 4. tit. 14. P. 7.] and if there are many, against each of them in solidum, L. 20. tit. 14. P. 7. [L. 20. tit. 14. P. 7.] See Ll. 10, 11, and 12. tit. 14. P. 7. [Ll. 10, 11, and 12. tit. 14. P. 7.]

Cap. 3. Private crimes are reduced to damage or trespass (daño), or to injury by deed, word, or writing (injuria) done to an individual. The damage or trespass (daño) is either caused by men, or by beasts." The first, the Romans called damnum injuria datum, and the second pauperies.18

42 Palacios observes, that it cannot, properly speaking, be said that they commit theft in this case, and quoting the words of L. 30. tit. 14. P. 7., that although a man cannot be properly said to commit theft in respect of property which is real, yet he commits an offence which is similar to theft.

43 The first of these laws cited, applies to stealers of cattle and sheep, &c., abigei; and the second to man-stealing, including slaves, &c.; this last offence is called Plagium. See both laws, 19 and 22. tit. 14. P. 7., cited.

44 Palacios says, simple theft is that which is attended with no circumstance of aggra. vation; and qualified theft is that which is so attended; aud he adds, referring to L. 18. tit. 14. P. 7., among other things, it will be there found that a theft of any thing sacred committed in a church, is qualified, without its being necessary to make it so, that it should be committed with any noise or violence (estrepito.)

45 Palacios observes, that qualified theft will be petty or grand according to the quantity or value of what is stolen.

46 The 17th tit. is here erroneously referred to in the text, as also with respect to the four following quotations.

47 And, therefore, says Palacios, the first will be reckoned among crimes, but not the second; for he adds, in the words of Justinian,§ init. Inst. si quæd. paup. fec. dic. “ nec enim potest animal injuriam fecisse dici, quod sensu caret.”

Palacios says, these two offences (daño and injuria), were, among the Romans (from

§ 1. Damage or trespass (daño), is the deterioration, injury, or destruction which a man suffers with respect to his person or his property by the fault (culpa) of another, L. 1. tit. 15. P. 7. [L. 1. tit. 15. P. 7.] There are three kinds of daño; the first, that, by reason of which a person's property or thing is deteriorated by being mixed with the property of another; the second when it loses part of its value; and the third when it is destroyed or totally lost, L. 1. tit. 15. P. 7. [L. 1. tit. 15. P. 7.]

Upon this, two principles are founded: 1st, That all damage caused to the thing (en la cosa) ought to be made good to the owner of it by him who caused the damage. 2d, That for this purpose it is enough that the most trifling fault (levissima culpa) intervenes.

From the first principle it is deduced, 1st, That the owner of the thing, or his heir, may institute this action, L. 2. tit. 15. P. 7.; [L. 2. tit. 15. P. 7.] and in the absence of them, the person enjoying the usufruct (usufructuario), the feudatory (feudatario), the depositary (depositario), and the attorney (apoderado),50 &c., L. 2. tit. 15. P. 7. [L. 2. tit. 15. P. 7.] 2d, The mortgagee, if damage be done to him in respect of the thing which he has in mortgage or pawn, the debtor not having wherewithal to pay him, L. 2. tit. 15. P. 7. [L. 2. tit. 15. P. 7.] 4th, That the heirs of him who caused the damage"1 ought to make it good, if the suit were commenced before the death of his ancestor or devisor,52 L. 3. tit. 15. P. 7. [L. 3. tit. 15. P. 7.]

53

7.]

From the second principle it follows: 1st, That the damage which a judge causes to a vanquished party by his sentence, ought not to be made good by him, L. 4. tit. 15. P. 7. [L. 4. tit. 15. P. 7.] 2d, Nor that which an agent or servant (un subdito) causes by [227] order of his superior, unless it should be an unlawful things which he ought not to fulfil or execute, L. 5. tit. 15. P. 7. [L. 5. tit. 15. P. 3d, That those who commit an act in a place where people assemble, from which damage may arise, are responsible for the injury or damage which may result therefrom to persons who assemble there, as the person who rides fast through the streets (que corre á caballo por las calles); the bricklayer who does not give warning when he whose codes so many laws were borrowed or taken for the composition of the Partidas), two of the four private crimes of which Justinian makes mention in § init. Inst. de Oblig. quæ ex del nasc: and for a better understanding of them, and the actions for damage caused by animals, he refers thereto; and to the title of ditto, De Leg. Aquil: and to Vin. nius, in his respective commentaries on the same. See also Halifax on C. L., p. 72. ch. 24. p. 85. ch. 2.: also Wood's C. L., p. 258. § 3. and p. 266.

49 Or, adds Palacios, by other reason, L. 1. tit. 15. P. 7.

50 See L. 2. tit. 15. P. 7., cited.

51 Or by whose order or advice it was caused.

82 And, adds Palacios, although the suit should not have been begun (contested is meant) before his death, if the heirs received any benefit from the damage caused by him from whom they take, they ought to make restitution to the amount of such benefit, L. 3. tit. 15. P. 7., cited.

53 Given justly or rightly (derechamente,) says L. 4. tit. 15. P. 7., cited; but otherwise, if such sentence be wrongfully (tortizeramente) given. See the law referred to: but see Appendix T.

See L. 5. tit. 15. P. 7., cited.

VOL. 1.-32

throws his bricks on the ground; he who lops the branches of a tree on the side of the road without giving notice of it, Ll. 6. and 25. tit. 15. P. 7. [Ll. 6. and 25. tit. 15. P. 7.] 4th, Equally guilty is he who sets traps (trampas), snares (cepos), and game traps (armadijos), in roads (caminos) or public places from which damage arises to the passengers; and likewise the person who, taming a wild animal,55 does not watch him so as to prevent his doing harm, L. 7. tit. 15. P. 7. [L. 7. tit. 15. P. 7.] 5th, The physician, surgeon, farrier, &c., ought to pay the damage which they shall cause to their patient by their own fault, or for abandoning (desamparar) the cure, L. 8.56 tit. 15. P. 7. 6th, Likewise is he bound to pay the damage who puts fire near straw, wood, corn, or other like thing, when there is wind, L. 10. tit. 15. P. 5.; [L. 10. tit. 15. P. 5.;] and the baker who does not take care of the fire in his oven, if by such cause what he is baking be lost or destroyed, L. 11. tit. 15. P. 7. [L. 11. tit. 15. P. 7.] 7th, Those are also responsible for any damage done to merchandise in a ship, or other vessels, on board which they are kept, who shall do any thing by which the goods are deteriorated or lost, L. 13. tit. 15. P. 7. [L. 13. tit. 15. P. 7.] Innkeepers (mesoneros) and others, for the damage which the things hung up at their doors or windows cause to passengers, L. 16.58 tit. 15. P. 7. Barbers who venture to shave in public, if they should do injury by wrangling (por tropezar) with another, L. 27. tit. 15. P. 7. [L. 27. tit. 15. P. 7.] 8th, Lastly, the destroyers of vines and plantations of trees, &c., are very guilty and deserving of punishment, L. 28. tit. 15. P. 7. [L. 28. tit. 15. P. 7.]

As regards the damage which animals cause to property and to persons, under the same principles, we establish, 1st, That whoever worries or terrifies a dog, or other animal, from which damage arises to another, he is bound to make reparation for it, L. 21. tit. 15. P. 7. [L. 21. tit. 15. P. 7.] 2d, That if the animal should do damage without the fault of the person who conducts it, it being tame, the owner is obliged to pay the damage," L. 22. tit. 15. P. 7. [L. 22. tit. 15. P. 7.] 3d, The same takes place with respect to a wild animal, which, on account of not being properly kept should do an injury to any person, L. 23. tit. 15. P. 7. [L. 23. tit. 15. P. 7.] 5th, In the like manner shall be made good the damage caused by cattle or stock (ganado) on the property of another

55 Such as bulls, cows, &c. See L. 7. tit. 15. P. 7., cited.

56 This law is erroneously cited for L. 9. tit. 15. P. 7.; and see Greg. Lop. Gl. 2 and 3, on this law.

67 By boring a hole or otherwise. See L. 13. tit. 15. P. 7., cited.

58 This law is erroneously cited for L. 26. tit. 15. P. 7.

69 But if the animal should be goaded or provoked by a third person to do the damage, such person is liable, and not the owner of the animal. See L. 22. tit. 15. P. 7., cited. 60 And a great deal more, adds Palacios, desiring reference to L. 23. tit. 15. P. 7., eited; such as paying double the amount of damage caused thereby, the expense of cure, if the injury be to the person, damages for loss of time, &c.; it is necessary to see the law cited to ascertain the extent of liability of the owner of the animal in this case.

61

person, the same being manifest, and determined by the award (a juicio), of fit men (hombres buenos); and if this damage hath been occasioned with a malicious intention on the part of [228] the owner of the animals, he shall pay double,62 L. 24. tit. 15. P. 7. [L. 24. tit. 15. P. 7.] This estimation of damages and prejudices (perjuicios) is left to the judgment of skilful persons (peritos), if the injury should be caused to real property: and in what regards the damage done by animals, attention must be had to the injury (perjuicio) which results to the owner of the thing injured, distinguishing the death from the wound only, or fracture of any limb, L. 18.

tit. 15. P. 7.

63

§ 2. Injury (injuria) is the same as dishonor (deshonra), which is done or said to another wrongfully (á tuerto), and in contempt of him, L. 1. tit. 9. P. 7. [L. 1. tit. 9. P. 7.] There are two kinds of injury, one by word (de palabra), and the other by deed (de hecho). In the first kind are included the injuries which result from libels and defamatory writings, L. 3.64 tit. 9. P. 7. [L. 3. tit. 9. P. 7.] Of injury by deeds various examples are found in Ll. 4.66 5. and 6. tit. 9. P. 7. [Ll. 4. 5. and 6. tit. 9. P. 7.]

Of injuries or libels, some are heinous (graves), and others trifling (leves). Those which are heinous, are so either in respect of the heinousness (gravedad) of the act in regard of the place where done or committed, or of the person injured or libelled, L. 20. tit. 19. P. 7.68 [L. 20. tit. 19. P. 7.] Trifling ones are all those which do not require consideration with respect to these three things; whence arises the difficulty of determining a certain or prescribed punishment for this kind of crime, L. 21. tit. 9. P. 7. [L. 21. tit. 9. P. 7.]

In order to the libelling or injuring a person it is necessary to prove a determinate mind or intention (determinado animo) in the person who libels; and therefore such not being able to happen with respect to a minor of ten years and a half old, the madman, idiot, &c. it follows, 1st, That neither of them can injure or libel, L. 8. tit. 9. P. 7. [L. 8. tit. 9. P. 7.] 2d, That the judge who imprisons by reason or virtue of his office does not commit injury, L. 16. tit. 9. P. 7. [L. 16. tit. 9. P. 7.] 3d, Nor the minister who proposes any person to the king as more capable than another to exercise an office, L. 19. tit. 9. P. 7. [L. 19. tit. 9. P. 7.]

61 It being manifest, or the person sustaining the injury being able to prove it; in which case, the damage ought to be estimated by skilful, respectable persons; this is observed by Palacios, who refers to L. 24. tit. 15. P. 7.

62 This is in the case the owner put the animals there knowingly or intentionally (á sabiendas), as stated by L. 24. tit. 15. P. 7., cited.

63 In Spain, says Palacios, according to some interpreters or commentators, the distinction of L. 18. tit. 15. P. 7., is not observed; but every damage which is occasioned through the fault of any one, is estimated or assessed by the discretion of the judge. 64 L. 13. is erroneously cited in the text.

65 Assault and battery.

66 L. 4. does not apply to injuria de hecho.

67 Or, adds Palacios, in respect of the person who libels, or of the libel itself.

68 See also L. 8. tit. 25. lib. 12. Nov. Rec.

This action may be brought by all persons injured or their representatives, as appears from the examples laid down in Ll. 8. 9. 10. 11. 12. 13. and 23. tit. 9. P. 7.; [Ll. 8. 9. 10. 11. 12. 13. and 23. tit. 9. P. 7.] and is at an end or is prescribed after a year, L. 22. tit. 9. P. 7. [L. 22. tit. 9. P. 7.] It is necessary to observe, that if the injury is done expressly to the person, who is found disguised or masked, he cannot complain of it; wherefore if a virtuous woman or one of good character goes disguised with the clothes or proper dress of a street walker or prostitute (muger publica), she cannot complain if they call her unchaste; nor can the clergyman, if he does not wear his [229] clerical habits, complain to the judge as a clergyman, L. 18. tit. 9. P. 7. [L. 18. tit. 9. P. 7.]

Cap. 4. The punishments common to all these crimes, are those which were established by the laws for the punishment of offences (para castigo y escarmiento), L. 1. tit. 31. P. 7. [L. 1. tit. 31. P. 7.] Punishment is therefore the compensation or satisfaction (enmienda) by fine or punishment which the law requires from or imposes upon any persons for the offences they have committed, L. 1. tit. 31. P. 7. [L. 1. tit. 31. P. 7.]

§ 1. We are only acquainted with two sorts, corporal punishment by which a man is punished in his person; and pecuniary" which always falls upon his property. Of these some are called ordinary punishments if they are determined or fixed by the laws, and those which are left to the discretion of the judge according to the circumstances of the crime, are called extraordinary or arbitrary. Of these punishments some are lawful, others unlawful. Those which are lawful are expressed in L. 4. tit. 31. P. 7. [L. 4. tit. 31. P. 7.,] and are, the punishment of the gallows or hanging (horca), strangling (garrote), loss of limb (perdimiento de miembro), the mines (minas), the gallies (galeras), transportation (destierros), imprisonment (carcel), hard labor in the public works (obras publicas), infamy (infamia), shame (verguenza), and public whipping inflicted by the hangman

69 Palacios says, this means, that the action may be brought by those under whose power they are; and that, as at present, the daughter-in-law is not under the power of her stepfather, nor the grandchild under that of the grandfather, nor the great-grandchild under that of the great-grandfather, what is said in L. 9. tit. 9. P. 7. respecting these persons, will not hold: that it has been already said, in various places, that the married son is not under the power of his father. It may be observed, that the actions here treated of do not pass or descend to heirs, unless they should have been instituted and contested in the lifetime of the injured party, except the injury were done to the party during his last sickness, of which he died, or reflected on his memory after death, although this last may not be considered as an exception to the rule, but as a distinct right or remedy given to the living heir. See L. 23. tit. 9. p. 7. cited.

70 Palacios says, we are acquainted also with the punishment of infumy, of which the text makes mention further on, and that of confiscation of property may be also added. But this last, the Translator may be permitted to observe, will come under the description of pecuniary punishment. Lardizabal sobre las Pen. cap. 5. p. 152. divides punishment into capital, corporal, infamous, and pecuniary; the second may be, however, said to include the first. Gutierrez Prac. Crim. 3 tom. cap. 6. p. 86. n. 1., mentions three kinds, corporal, infamous or stigmatizing, and pecuniary. Wood, in his Inst. Civ. Law, p. 334. book 4. chap. 4. reduces punishments to two sorts, capital and not capital.