GAI. iii. 206; C. vi. 2. 22. 1, 2.

The concluding words of the paragraph mean that the owner is put to his election once for all, and if he sues the borrower, and finds the borrower cannot pay, he cannot have recourse to an actio furti against the thief.

GAI. iii. 207.

We must, in all cases of theft, bear in mind that an actio furti might also be brought against any one who had ope consilio

participated in the theft, and the whole amount of the penalty could be recovered separately against each thief and each person taking an indirect part in the theft. (D. xlvii. 2. 21. 9.)

Custodiam non præstat is equivalent to saying that he is not answerable for culpa levis.

18. In summa sciendum est, quæsitum esse, an impubes rem alienam amovendo furtum faciat. Et placet, quia furtum ex affectu consistit, ita demum obligari eo crimine impuberem, si proximus pubertati sit et ob id intellegat, se delinquere.

18. It must be finally observed, that the question has been asked whether, if a person under the age of puberty takes away the property of another, he commits a theft. The answer is, that as it is the intention that makes the theft, such a person is only bound by the obligation springing from the delict if he is near the age of puberty, and consequently understands that he is doing wrong.

GAI. iii. 208.

19. Furti actio sive dupli sive quadrupli tantum ad pœnæ persecutionem pertinet: nam ipsius rei persecutionem extrinsecus habet dominus, quam aut vindicando aut condicendo potest auferre. Sed vindicatio quidem adversus possessorem est, sive fur ipse possidet sive alius quilibet condictio autem adversus ipsum furem heredemve ejus, licet non possideat, competit.

19. The action of theft, whether brought to recover double or quadruple, has no other object than the recovery of the penalty. For the owner has also a means of recovering the thing itself, either by a vindicatio or a condictio. The former may be brought against the possessor, whether the thief or any one else; the latter may be brought against the thief or the heir of the thief, although not in possession of the thing stolen.

GAI. iv. 8; D. xlvii. 2. 54. 3.

The thief and those who assisted him had to pay a penalty as a punishment for their wrongdoing; but something more remained for the thief himself to do; he had to restore the thing stolen or its value. The owner could bring a vindicatio or an actio ad exhibendum, which were both actiones arbitraria; that is, the thief was directed to restore the thing or exhibit it, and if he did not do so, then the judge condemned him to pay what under the circumstances it was reasonable he should pay. These actiones might be brought against any possessor, against the thief, or any one who had received possession from the thief. As a general rule the person who could bring a vindicatio could not bring a condictio for the same thing; for in the vindicatio he asserted that the property in the thing was his, whereas in the condictio he asserted that the defendant ought to make over (dare oportere) the property in the thing to him, and these were inconsistent assertions. In the case of theft, however, the plaintiff had an option given him odio furum to bring what was termed a condictio furtiva (Tit. 6. 14), and it might sometimes be advantageous to have this option. For example, the thing might have perished, and it was a rule that res extinctæ vindicari non possunt.

Extincta res, licet vindicari non possint, condici tamen furibus possunt (GAI. ii. 79).

This condictio furtiva might be brought against the heirs of the thief, whereas the actio furti, which inflicted a punishment for a personal wrongful act, could only be brought against the thief himself. Every action against a thief or those who assisted him might be brought by the heirs of any one entitled to bring it. (See Tit. 12.)

TIT. II. VI BONORUM RAPTORUM.

Qui res alienas rapit, tenetur quidem etiam furti (quis enim magis alienam rem invito domino contrectat, quam qui vi rapit? Ideoque recte dictum est, eum improbum furem esse): sed tamen propriam actionem ejus delicti nomine prætor introduxit, quæ appellatur vi bonorum raptorum et est intra annum quadrupli, post annum simpli. Quæ actio utilis est, etiamsi quis unam rem, licet minimam, rápuerit. Quadruplum autem non totum poena est et extra pœnam rei persecutio, sicut in actione furti manifesti diximus: sed in quadruplo inest et rei persecutio, ut pœna tripli sit, sive comprehendatur raptor in ipso delicto sive non. Ridiculum est enim, levioris esse condicionis eum, qui vi rapit, quam qui clam amovet.

A person who takes by force a thing belonging to another is liable to an action of theft, for who can be said to take the property of another more against his will than he who takes it by force? And he is therefore rightly said to be an improbus fur. The prætor, however, has introduced a peculiar action in the case of this delict, called vi bonorum raptorum; by which, if brought within a year after the robbery, quadruple the value of the thing taken may be recovered; but if brought after the expiration of a year, then the single value only can be recovered. This action may be brought even against a person who has only taken by force a single thing, even of the most trifling value. But this quadruple of the value is not altogether a penalty, the recovery of the thing being something additional, as in the action of furtum manifestum ; for the recovery of the thing is included, so that the penalty is only of three times the value. And it is the same, whether the robber was or was not taken in the actual commission of the crime. For it would be ridiculous that a person who uses force should be treated more leniently than he who secretly removes a thing. GAI. iv. 8.

The edict of the prætor, introducing this action, ran as follows: Si cui dolo malo, hominibus coactis, damni quid factum esse dicetur, sive cujus bona rapta esse dicentur in eum qui id fecisse dicitur judicium dabo. (D. xlvii. 8. 2.)

It was necessary that the act of violence should be committed with evil intent (dolo malo). If, for instance, a publicanus carried off a flock of sheep, thinking that some offence had been committed against the lex vectigalis, although he was mistaken, this action could not be brought against him. (D. xlvii. 8. 2. 20.)

Even if the thief was alone, or one thing, however small, was carried off, yet the action might be brought, although the words hominibus coactis and bona rapta occur in the edict. It, like the action of theft, could only be brought if the thing or things taken were moveables. (C. ix. 33. 1.)

The text explains how the amount recovered under it differed from that recovered under an actio furti. Under the actio vi bonorum raptorum the thing itself was recovered, or its value if the thief no longer had it in his possession, and also three times the estimated value of the thing itself; while the actio furti was only penal. (See paragr. 19 of last Title.)

The plaintiff might, if he pleased, bring the actio furti instead; and he might bring this action after the expiration of a year prevented his bringing that vi bonorum raptorum.'

This action united in its effects the vindicatio or condictio, and also the recovery of a penalty. As it was partly penal, it could not be brought against the heirs of the thief. (D. xlvii. 8. 2. 27.) The offence of taking goods by force could also be made the subject of a criminal charge. (Tit. 18. 8.)

1. Quia tamen ita competit hæc actio, si dolo malo quisque rapuerit: qui aliquo errore inductus, suam rem esse, et imprudens juris eo animo rapuit, quasi domino liceat rem suam etiam per vim auferre possessoribus, absolvi debet. Cui scilicet conveniens est, nec furti teneri eum, qui eodem hoc animo rapuit. Sed ne, dum talia excogitentur, inveniatur via, per quam raptores impune suam exerceant avaritiam melius divalibus constitutionibus pro hac parte prospectum est, ut nemini liceat vi rapere rem mobilem vel se moventem, licet suam eandem rem existimet: sed si quis contra statuta fecerit, rei quidem suæ dominio cadere, sin autem aliena sit, post rei restitutionem etiam æstimationem ejusdem rei præstare. Quod non solum in mobilibus rebus, quæ rapi possunt, constitutiones optinere censuerunt, sed etiam in invasionibus, quæ circa res soli fiunt, ut ex hac causa omni rapina homines abstineant.

1. As, however, this action can only be brought against a person who robs with the intent of committing a wilful wrong, if any one takes by force a thing, thinking himself, by a mistake, to be the owner, and, in ignorance of the law, believing it permitted to an owner to take away, even by force, a thing belonging to himself from persons in whose possession it is, he ought to be held discharged of this action, and on the same principles a person carrying off a thing under similar circumstances would not be liable

to an action of theft. But lest robbers, under the cover of such an excuse, should find means of gratifying their avarice with impunity, the imperial constitutions have made a wise alteration, by providing that no one may carry off by force a thing that is moveable, or moves itself, although he thinks himself the owner. If any one acts contrary to these constitutions, he is, if the thing is his, to cease to be owner of it; if it is not, he is not only to restore the thing taken, but also to pay its value. The constitutions have declared these rules applicable, not only in the case of moveables of a nature to be carried off by force, but also to forcible entries made upon things pertaining to the soil, in order that every kind of violent robbery may be prevented.

D. xlvii. 8. 2. 18; C. viii. 4. 7.

The constitution referred to was enacted in A.D. 389 by the Emperors Valentinian, Theodosius, and Arcadius. It provided a much more effectual remedy for forcible disturbance than had been given by the interdict unde vi. It applied, which the interdict did not, to moveables as well as immoveables, and it not only made the wrongdoer give up the thing, but it made him, if he was the owner, lose the property in the thing, and, if he was not the owner, pay its value. (See Tit. 15. 6.)

2. In hac actione non utique spectatur, rem in bonis actoris esse : nam sive in bonis sit sive non sit, si tamen ex bonis sit, locum hæc actio habebit. Quare sive commodata sive locata sive etiam pignerata sive deposita sit apud Titium sic, ut intersit ejus, eam non auferri, veluti si in re deposita culpam quoque promisit, sive bona fide possideat, sive usumfructum in ea quis habeat vel quod aliud jus, ut intersit ejus, non rapi dicendum est, competere ei hanc actionem, ut non dominium accipiat, sed illud solum, quod ex bonis ejus, qui rapinam passus est, id est quod ex substantia ejus ablatum esse proponatur. Et generaliter dicendum est, ex quibus causis furti actio competit in re clam facta, ex iisdem causis omnes habere hanc actionem.

2. In this action it is clearly not necessary that the thing should have been part of the goods of the plaintiff ; for whether it has been part of his goods or not, yet if it has been taken from among his goods, the action may be brought. Consequently, if anything has been let, lent, or given in pledge to Titius, or deposited with him, so that he has an interest in its not being taken away by force, as if, for instance, he has engaged to be answerable for any fault committed respecting it; or if he possesses it bona fide, or has the usufruct of it, or has any other legal interest in its not being taken away by force, this action may be brought, not to give him the ownership in the thing, but merely to restore him what he has lost by the thing being taken away by violence from out of his goods, that is, from out of his substance. And generally, we may say, that the same causes which would give rise to an action of theft, if the act is committed secretly, will give ground for this action, if it is committed with force.

D. xlvii. 8. 2. 22-24.

In order to make the punishment of an open and flagrant violation of law more severe than that of a secret theft, the very slightest interest in the thing taken was sufficient to enable a plaintiff to bring the action vi bonorum raptorum. For instance, a mere depositary could bring it, although his interest was not great enough to permit of his bringing an actio furti.

TIT. III. DE LEGE AQUILIA.

Danni injuriæ actio constituitur per legem Aquiliam. Cujus primo capite cautum est, ut si quis hominem alienum alienamve quadrupedem, quæ pecudum numero sit, injuria occiderit, quanti ea res in eo

The action damni injuriæ is established by the lex Aquilia, of which the first head provides, that if any one shall have wrongfully killed a slave, or a four-footed beast, being one of those reckoned among cattle, belonging to