Page:The Common Law by Oliver Wendell Holmes.djvu/30

Rh contract, including himself, should be given up in satisfaction of it. For, he said, the Roman people not having sanctioned the agreement, who is so ignorant of the jus fetialium as not to know that they are released from obligation by surrendering us? The formula of surrender seems to bring the case within the noxæ deditio. Cicero narrates a similar surrender of Maneinus by the paterpatratus to the Numantines, who, however, like the Samnites in the former case, refused to receive him.

It might be asked what analogy could have been found between a breach of contract and those wrongs which excite the desire for vengeance. But it must be remembered that the distinction between tort and breaches of contract, and especially between the remedies for the two, is not found ready made. It is conceivable that a procedure adapted to redress for violence was extended to other cases as they arose. Slaves were surrendered for theft as well as