advantageous to him to rely on the pledge, than to bring a personal action: and this rule is so unbending that even the pawnor who steals a pawn is suable for theft by the pawnee. So, if clothes are delivered to be cleaned or finished or mended 15 for a certain remuneration, and then are stolen, it is the fuller or tailor who can sue on the theft, and not the owner; for the owner suffers nothing by the loss, having the action of letting against the fuller or tailor for the recovery of his property. Similarly a purchaser in good faith, even though a good title as owner is not given to him, can bring the action of theft if the property is stolen, exactly like the pawnee. The action is however not maintainable at the suit of a fuller or tailor, unless he is solvent, that is to say, unless he is able to fully indemnify the owner; if he is insolvent, the owner cannot recover from him, and so can maintain an action against the thief, being, on this hypothesis, interested in the recovery of the property. Where the fuller or tailor is only partly instead of wholly solvent the rule is the same. The older 16 lawyers held that what has been said of the fuller and tailor applied also to the borrower for use, on the ground that as the remuneration which the fuller receives makes him responsible for custody, so the advantage which the borrower derives from the use requires him to keep it safely at his peril. Our wisdom however has amended the law in this particular in our decisions, by allowing the owner the option of suing either the borrower by action on the loan, or the thief by action of theft; though when his choice has been determined he cannot change his mind, and resort to the other action. If he prefers to sue the thief, the borrower is absolutely released from liability; but if he proceeds against the borrower, he cannot in any way himself sue the thief on the stealing, though this may be done by the borrower, who is defendant in the other action, provided that the owner knew, at the time when he began his action against the borrower, that the thing had been stolen. If he is ignorant of this, or even if he is merely doubtful whether the borrower still has the property in his possession or not, and sues him on the loan, he may, on subsequently learning the facts, and if he wishes to drop the action which he has commenced, and

sue the thief instead, adopt this course,, in which case no obstacle is to be thrown in his way, because it was in ignorance that he took action and sued the borrower on the loan. If however the owner has been indemnified by the borrower, in no case can he bring the action of theft against the thief, as his rights of action pass to the person who has compensated him for the loss of his property. Conversely it is clear, that if, at the outset, the owner began an action on the loan against the borrower, not knowing that the property had been stolen, and subsequently, on learning this, proceeded against the thief instead, the borrower is absolutely released from liability, whatever may be the result of the owner's action against the thief; the rule being the same, whether the borrower be wholly 17 or only partially solvent. As a depositary is not answerable for the safe keeping of the thing deposited, but only for fraud, and, if it is stolen, is not compellable to make restitution by action of deposit, he has no interest if it is lost, and therefore the action of theft is maintainable only by the depositor. 18 Finally, it has been a question whether a child below the age of puberty, who carries away the property of another, is guilty of theft. The answer is that, as theft depends on intention, obligation by theft is not incurred unless the child is near 19 puberty, and so understands its delinquency. The object of the action on theft, whether it be for double or quadruple the value of the goods stolen, is merely the recovery of the penalty; to recover the goods themselves or their value the owner has an independent remedy by vindication or condiction. The former is the proper remedy when it is known who is in possession of the goods, whether this be the thief or any one else the latter lies against the thief or his heir, whether in possession of the stolen property or not.

TITLE II.

OF ROBBERY.

Robbery is chargeable also as theft; for who deals with the property of another more against that other's will than the robber? And thus the description of the robber as an audacious thief is a good one. However, as a special remedy

for this offence the praetor has introduced the action for robbery, or rapine with violence, which may be brought within a year for four times the value, after a year for simple damages, and which lies even when only a single thing of the slightest value has been taken with violence. This fourfold value, however, is not all penalty, nor is there an independent action for the recovery of the property or its value, as we observed was the case in the action of theft detected in the commission; but the thing or its value is included in the fourfold, so that, in point of fact, the penalty is three times the value of the property, and this whether the robber be taken in the act or not; for it would be absurd to treat a robber more lightly than one who carries off property merely secretly. This action is maintainable only where the robbery is attended 1 with wrongful intention; consequently, if a man by mistake thought that property was his own, and, in his ignorance of law, forcibly carried it off in the belief that it was lawful for an owner to take away, even by force, a thing belonging to himself from a person in whose possession it was, he cannot be held liable to this action; and similarly on principle he would not in such a case be suable for theft. Lest however robbers, under the cloke of such a plea, should discover a method of gratifying a grasping habit with impunity, the law has been amended upon this point by imperial constitutions, by which it is enacted that it shall not be lawful for any one to forcibly carry off moveable property, inanimate or animate, even though he believe it to belong to him; and that whosoever disobeys this shall forfeit the property, if in fact it be his, and if it be not, shall restore it, and along with it its value in money. And by the said constitutions it is also declared that this provision relates not only to moveables (of which alone robbery can be committed), but also to forcible entries on land and houses, so as to deter men from all violent seizing upon property whatsoever under the cloke of such excuses. In order 2 to support this action it is not necessary that the goods of which robbery has been committed should belong to the plaintiff by either a legal or an equitable title, provided they were taken from among his property. Thus, if a thing be let, or lent, or pledged to Titius, or even deposited with him under

such circumstances that he has an interest in its not being carried off—for instance, by his having undertaken the entire responsibility for its safe custody;-or if he possesses it in good faith, or has a usufruct or any other right in it whereby he suffers loss or incurs liability through its being forcibly taken from him, the action will be maintainable by him; not necessarily in order to restore to him the ownership, but only to compensate him for what it is alleged he has lost by its being taken from his goods or withdrawn from his means. In fact it may be said generally that where, supposing property to be taken secretly, the action of theft will lie, the action on robbery will lie at suit of the same person, if it be taken with violence.

TITLE III.

OF THE LEX AQUILIA.

Unlawful damage is actionable under the lex Aquilia, whose first chapter provides that if a slave of another man, or a quadruped from his flocks or herds, be unlawfully killed, the offender 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 quadrupeds 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 they are comprehended 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 Arethusa1.' 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, provided there is no fault or carelessness on his part; otherwise it is different, for under this statute care4 lessness is as punishable as wilful wrong-doing. Accordingly, 1 Ol. xiii. 427, 8.

if a man, while playing or practising with javelins, runs your slave through as he passes by, a distinction is drawn. If it be done by a soldier in his exercising ground, that is to say, where such practice is usually conducted, he is in no way to blame; but if it be done by some one else, his carelessness will make him liable; and so it is with the soldier, if he do it in some place other than that appropriated to military exercises. So too if a man is trimming a tree, and kills your slave as he 5 passes by with a bough which he lets fall, he is guilty of negligence, if it is near a public way, or a private path belonging to a neighbour, and he does not call out to give people warning; but if he calls out, and the slave takes no pains to get out of the way, he is not to blame. Nor would such a man be liable, if he was cutting a tree far away from a road, or in the middle of a field, even if he did not call out; for strangers had no business to be there. Again, if a surgeon 6 operates on your slave, and then neglects altogether to attend to his cure, so that the slave dies in consequence, he is liable for his carelessness. Sometimes too unskilfulness is undis- 7 tinguishable from carelessness-as where a surgeon kills your slave by operating upon him unskilfully, or by giving him wrong medicines; and similarly if your slave is run over by a 8 team of mules, which the driver has not enough skill to hold, the latter is suable for carelessness; and the case is the same if he was simply not strong enough to hold them, provided they could have been held by a stronger man. The rule also applies to runaway horses, if the running away is due to the rider's deficiency either in skill or in strength. The meaning 9 of the words of the statute 'whatever was the highest value thereof within the year' is that if any one, for instance, kills a slave of yours, who at the moment of his death is lame, or maimed, or blind of one eye, but within the year was sound and worth a price, the person who kills him is answerable not merely for his value at the time of his death, but for his highest value within the year. It is owing to this that the action under this statute is deemed to be penal, because a defendant is sometimes bound to pay a sum not merely equivalent to the damage he has done, but far in excess of it; and consequently, the right of suing under the statute does not