sitam et inventam non exhibuit. Sed hæ actiones, id est concepti et oblati et furti prohibiti nec non furti non exhibiti, in desuetudinem abierunt. Cum enim requisitio rei furtivæ hodie secundum veterem observationem non fit: merito ex consequentia etiam præfatæ actiones ab usu communi recesserunt, cum manifestissimum est, quod omnes, qui scientes rem furtivam susceperint et celaverint, furti nec manifesti obnoxii sunt. witnesses for a thing stolen ; there is, too, by means of the action furti non exhibiti, a penalty provided by the edict of the prætor against a person who has not produced a thing stolen which has been searched for and found in his possession. But these actions, concepti, oblati, furti prohibiti, and furti non exhibiti, have fallen into disuse; for search for things stolen is not now made according to the ancient practice, and therefore these actions have naturally ceased to be in use, as all who knowingly have received and concealed a thing stolen are liable to the action furti nec manifesti. GAI. iii, 186-188. To the furtum conceptum and the furtum oblatum a penalty of triple the value of the thing stolen was affixed by the Twelve Tables. To the furtum prohibitum, not noticed in the Twelve Tables, a penalty of quadruple the value was affixed by the prætor. (GAI. iii. 192.) The Twelve Tables noticed a kind of furtum conceptum of which no mention is made here; it was called furtum lance licioque conceptum. The searcher entered the house of the supposed receiver, having nothing on his person but a cincture (licium) round his waist, and a plate (lanx) which he held with both his hands, so that there could be no suspicion that he had brought in with him the thing supposed to be stolen. If he then found the thing in the house, the receiver was punished as if he had committed a furtum manifestum. (GAI. iii. 192.) This mode of search and the action founded on it were suppressed by the lex Ebutia. (AUL. GELL. Noct. Att. xvi. 10.) The actions furti concepti, oblati, and prohibiti, were still in use in the time of Gaius. Ulpian (D. L. 16. 13) explains the meaning of the word pœna. Pana is the punishment of an offence, noxa vindicta. It is contrasted with multa. Pana is a punishment imposed by some general law, affecting possibly the caput and existimatio of the person punished. Multa is a fine, a money fine in later law, a fine of cattle and sheep in earlier times (pecuaria). The value of the thing was the rei verum pretium, its worth under all the circumstances of the case. So if a slave was stolen, who was in a position to enter on an inheritance at his master's bidding, and then died before entering, the pretium hereditatis, the value of the inheritance thus lost, was calculated in the value of the slave stolen. (D. xlvii. 2. 50. pr.) 5. Pœna manifesti furti quadrupli est tam ex servi persona quam ex liberi, nec manifesti dupli. 5. The penalty for manifest theft is quadruple the value of the thing stolen, whether the thief be a slave or a freeman; that for theft not manifest is double. GAI. iii. 189, 190. 6. Furtum autem fit non solum, cum quis intercipiendi causa rem alienam amovet, sed generaliter cum quis alienam rem invito domino contrectat. Itaque sive creditor pignore sive is, apud quem res deposita est, ea re utatur sive is, qui rem utendam accepit, in alium usum eam transferat, quam cujus gratia ei data est, furtum committit. Veluti si quis argentum utendum acceperit quasi amicos ad cenam invitaturus et id peregre secum tulerit, aut si quis equum gestandi causa commodatum sibi longius aliquo duxerit, quod veteres scripserunt de eo, qui in aciem equum perduxisset. 6. It is theft, not only when any one takes away a thing belonging to another, in order to appropriate it, but generally when any one deals with the property of another contrary to the wishes of its owner. Thus, if the creditor uses the thing pledged or the depositary the thing deposited, or a person who has received a thing to make use of it in one way employs it for another purpose, it is a theft; for example, if any one borrows plate on the pretence of intending to invite friends to supper, and then carries it away with him to a distance, or if any one borrows a horse, as for a ride, and takes it much farther than suits such a purpose, as if, to use a suggestion made in the writings of the ancients, he has taken it into battle. GAI. iii. 195, 196; D. xlvii. 2. 54. 7. Placuit tamen, eos, qui rebus commodatis aliter uterentur, quam utendas acceperint, ita furtum committere, si se intellegant id invito domino facere eumque, si intellexisset, non permissurum, ac si permissurum credant, extra crimen videri optima sane distinctione, quia furtum sine affectu furandi non committitur. 7. A person, however, who borrows a thing, and applies it to a purpose other than that for which it was lent, only commits theft, if he knows that he is acting against the wishes of the owner, and that the owner, if he was informed, would not permit it; for if he really thinks the owner would permit it, he does not commit a crime; and this is a very proper distinction, for there is no theft without the intention to commit theft. GAI. iii. 197; D. xli. 3. 37. 8. Sed et si credat aliquis, invito domino se rem commodatam sibi contrectare, domino autem volente id fiat, dicitur furtum non fieri. Unde illud quæsitum est, cum Titius servum Mævii sollicitaverit, ut quasdam res domino subriperet et ad eum perferret, et servus id ad Mævium pertulerit, Mævius, dum vult Titium in ipso delicto deprehendere, permisit servo quasdam res ad eum perferre, utrum furti an servi corrupti judicio teneatur Titius, an neutro? Et cum nobis super hac dubitatione suggestum est et antiquorum prudentium super hoc altercationes perspeximus, quibusdam neque furti neque servi corrupti actionem præstantibus, quibusdam furti tantummodo : nos hujusmodi calliditati obviam euntes, per nostram decisionem sanximus, non solum furti actionem, sed etiam servi corrupti contra eum dari licet enim : 8. And even if the borrower thinks he is applying the thing borrowed contrary to the wishes of the owner, yet if the owner as a matter of fact approves of the application, there is, it is said, no theft. Whence the following question arises: Titius has urged the slave of Mævius to steal from his master certain things, and to bring them to him; the slave informs his master, who, wishing to seize Titius in the act, permits his slave to take certain things to Titius; is Titius liable to an action furti, or to one servi corrupti, or to neither? This doubtful question was submitted to us, and we examined the conflicting opinions of the ancient jurists on the subject, some of whom thought Titius was liable to both these actions, while others thought he was only liable to the action of theft; and to prevent such subtleties, we have decided that in this case both these actions may be brought. For, although Ꭰ Ꭰ is servus deterior a sollicitatore minime factus est et ideo non concurrant regulæ, quæ servi corrupti actionem introducerent, tamen consilium corruptoris ad perniciem probitatis servi introductum est, ut sit ei pœnalis actio imposita, tamquam re ipsa fuisset servus corruptus, ne ex hujusmodi impunitate et in alium servum, qui possit corrumpi, tale facinus a quibusdam pertentetur. the slave has not been corrupted, and the case does not seem therefore within the rules of the action servi corrupti, yet the intention to corrupt the slave is indisputable, and he is therefore to be punished exactly as if the slave had been really corrupted, lest his impunity should incite others to act in the same criminal way towards a slave more easy to corrupt. GAI. iii. 198; C. vi. 2. 20. Was the slave corrupted? No; he had given à signal proof of his fidelity. Was the thing stolen? No; the owner had consented to its being taken. Thus had reasoned those who refused either action. Justinian avoids these subtleties, and decides that crime shall at any rate be punished, and reparation be made for a wrongful act. 9. Interdum etiam liberorum hominum furtum fit, veluti si quis liberorum nostrorum, qui in potestate nostra sunt, subreptus fuerit. 9. Sometimes there may be a theft of free persons, as if one of our children in our power is carried away. GAI. iii. 199. Gaius adds, as an example, the case of a wife in manu being stolen. It was not the value of the person stolen which in such cases formed the measure of the penalty, for the value of a free person was inappreciable; but it was the loss occasioned by the theft to the person in whose power the subject of the theft was. 10. Aliquando autem etiam suæ rei quisque furtum committit, veluti si debitor rem, quam creditori pignoris causa dedit, subtraxerit. GAI. 11. Interdum furti tenetur, qui ipse furtum non fecerit : qualis est, cujus ope et consilio furtum factum est. In quo numero est, qui tibi nummos excussit, ut alius eos raperet, aut obstitit tibi, ut alius rem tuam surriperet, vel oves aut boves tuas fugaverit, ut alius eas exciperet et hoc veteres scripserunt de eo, qui panno rubro fugavit armentum. Sed si quid eorum per lasciviam et non data opera ut furtum adınitteretur, factum est, in factum actio dari debet. At ubi ope Maevii Titius furtum fecerit, ambo furti tenentur. Ope consilio ejus quoque furtum admitti videtur, qui scalas forte fenestris supponit aut ipsas fenestras vel ostium effringit, ut alius furtum faceret, quive ferramenta ad effringendum aut scalas, 10. A man may even commit a theft of his own property, as if a debtor takes fraudulently from a creditor a thing he has pledged to him. iii. 200. 11. A person may be liable to an action of theft, although he has not himself committed a theft, as, for instance, a person who has lent his aid and planned the crime. Among such is one who makes your money fall from your hand that another may seize upon it; or has placed himself in your way that another may carry off something belonging to you; or has driven your sheep or oxen that another may make away with them, or, to take an instance given by the old lawyers, frightens a herd with a piece of scarlet cloth. But if such acts are only the fruit of reckless folly, with no design of assisting in the commission of a theft, the proper action is one in factum. But if Mævius assists Titius to commit a robbery, both are liable to an action of theft. A person, again, as ut fenestris supponerentur, commodaverit, sciens, cujus gratia commodaverit. Certe qui nullam operam ad furtum faciendum adhibuit, sed tantum consilium dedit atque hortatus est ad furtum faciendum, non tenetur furti. GAI. iii. 202; D. xlvii 12. Hi, qui in parentium vel dominorum potestate sunt, si rem eis subripiant, furtum quidem illis faciunt et res in furtivam causam cadit nec ob id ab ullo usucapi potest, antequam in domini potestatem revertatur; sed furti actio non nascitur, quia nec ex alia ulla causa potest inter eos actio nasci: si vero ope consilio alterius furtum factum fuerit, quia utique furtum committitur, convenienter ille furti tenetur, quia verum est, ope consilio ejus furtum factum esse. D. xlvii. 2. 17; 13. Furti autem actio ei competit, cujus interest, rem salvam esse, licet dominus non sit: itaque nec domino aliter competit, quam si ejus intersit, rem non perire. sists in a theft who places ladders under a window, or breaks a window or a door, that another may commit a theft; or who lends tools to break a door, or ladders to place under a window, knowing the purpose to which they are to be applied. But a person who does not actually assist, but only advises and urges the commission of a theft, is not liable to an action of theft. 2. 54. 4 ; D. xlvii. 2. 36. 12. Those who are in the power of | an ascendant or master, if they steal anything belonging to the person in whose power they are, commit a theft against him. The thing stolen, in such a case, is considered to be furtiva, and therefore no right in it can be acquired by usucapion before it has returned into the hands of the owner; but no action of theft can be brought, because the relation of the parties is such, that no action whatever can arise between them. But if the theft has been committed by the assistance and advice of another, as a theft is actually committed, this person will be subject to the action of theft, as a theft is undoubtedly committed through his aid and advice. D. xlvii. 2. 36. 1. 13. An action of theft may be brought by any one who is interested in the safety of the thing, although he is not the owner; and the proprietor, consequently, cannot bring this action unless he is interested in the thing not perishing. GAI. iii. 203. The right to bring the actio furti may belong to several persons at the same time. For instance, both the owner and the usufructuary had sufficient interest in the thing to support an action. But mere interest in a thing was not sufficient unless the thing had been delivered to, and was or had been in the possession of, the plaintiff. A person, for instance, to whom a thing was due by stipulation could not bring an actio furti if the thing was stolen; he could only compel the actual owner to allow him to bring an actio furti in the owner's name; nor could a creditor bring an actio furti for a thing stolen from his debtor. (D. xlvii. 2. 14. 1. 49.) 14. Unde constat, creditorem de pignore subrepto furti agere posse, etiamsi idoneum debitorem habeat, quia expedit ei, pignori potius in 14. Hence, a creditor may bring this action if a thing pledged to him is stolen, although his debtor is solvent, because it may be more advan cumbere quam in personam agere: adeo quidem ut, quamvis ipse debitor eam rem subripuerit, nihilo minus creditori competat actio furti. tageous to him to rely upon his pledge than to bring an action against his debtor personally; so much so, that although it is the debtor himself that has stolen the thing pledged, yet the creditor can bring an action of theft. GAI. iii. 204. 15. Item si fullo polienda curandave aut sarcinator sarcienda vestimenta mercede certa acceperit eaque furto amiserit, ipse furti habet actionem, non dominus, quia domini nihil interest, eam rem non perisse, cum judicio locati a fullone aut sarcinatore rem suam persequi potest. Sed et bonæ fidei emptori, subrepta re, quam emerit, quamvis dominus non sit, omnimodo competit furti actio, quemadmodum et creditori. Fulloni vero et sarcinatori non aliter furti competere placuit, quam si solvendo sint, hoc est si domino rei æstimationem solvere possint: nam si solvendo non sunt, tunc quia ab eis suum dominus consequi non possit, ipsi domino furti actio competit, quia hoc casu ipsius interest, rem salvam esse. Idem est et si in parte solvendo sint fullo aut sarcinator. GAI. iii. 205; 15. So, too, if a fuller receives clothes to scour or clean, or a tailor receives them to mend, for a certain fixed sum, and has them stolen from him, it is he and not the owner who is able to bring an action of theft, for the owner is not considered as interested in their safety, having an action locati, by which he may recover the thing stolen, against the fuller or tailor. But, if a thing is stolen from a bona fide purchaser, he is entitled, like a creditor, to an action of theft, although he is not the proprietor. action of theft is not maintainable by the fuller or tailor, unless he is solvent, that is, unless he is able to pay the owner the value of the thing lost; for if the fuller or tailor is insolvent, then the owner, as he cannot recover anything from them, is allowed to bring an action of theft, as he has in this case an interest in the safety of the thing. And it is the same although the fuller or tailor is partially solvent. D. xlvii. 2. 20. 1. But an The owner has no interest in recovering the penalty if he can get compensation from the person whose services he has hired to the full amount of any loss he sustains by the theft; but he would still be able to bring an action, i.e. a vindicatio, an actio ad exhibendum, or a condictio, to get the thing itself, or its value, from the thief. (See paragr. 19.) 16. Quæ de fullone et sarcinatore diximus, eadem et ad eum, cui commodata res est, transferenda veteres existimabant: nam ut ille fullo mercedem accipiendo custodiam præstat, ita is quoque, qui commodum utendi percipit, similiter necesse habet custodiam præstare. Sed nostra providentia etiam hoc in decisionibus nostris emendavit, ut in domini sit voluntate, sive commodati actionem adversus eum, qui rem commodatam accepit, movere desiderat, sive furti adversus eum, qui rem subripuit, et alterutra earum electa dominum non posse ex pœnitentia ad alteram venire actio 16. What we have said of the fuller and tailor was applied by the ancients to the borrower on gratuitous loan. For as the fuller by accepting a sum for his labour makes himself answerable for the safe keeping of the thing, so does a borrower by accepting the use of the thing he borrows. But our wisdom has introduced in our decisions an improvement on this point, and the owner may now bring an action commodati against the borrower, or of theft against the thief; but when once his choice is made, he cannot change his mind and have recourse to the other action. If he elects to sue the thief, the borrower is quite freed; if |