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564

FURTUM.

:a thing, therefore, had not necessarily this action. A creditor might have this action even against the owner of a thing pledged, if the owner was the thief. A person to whom a thing was delivered in order to work upon it, as in the case of clothes given to a tailor to mend, could bring this action against the thief, and the owner could not, for the owner had an action (locati) against the tailor. But if the tailor was not a solvent person, the owner had his action against the thief, for in such case the owner had an inteiest in the preservation of the thing. The rule was the same in the case of com-modatum [commodatum]. But in a case of de-positum, the depositee was under no obligation for the safe custody of the thing (custodiam praestare), and he was under no liability except in the case of dolus ; consequently, if the deposited thing was stolen, the owner alone had the actio furti. A •bona fide purchaser might have the actio furti, oven if the thing had not been delivered to him, and he were consequently not dominus.

An impubes might commit theft (obligatur crimine furti), if he was bordering on the age of puberty, and consequently of sufficient capacity to under­stand what he was doing. If a person who was in the power of another committed furtum, the actio furti was against the latter.

son.

The right of action died with the offending per-If a peregrinus committed furtum, he was

-made liable to an action by the fiction of his being a Roman citizen (Gaius, iv. 37) ; and by the same fiction he had a right of action, if his property was stolen.

He who took the property of another by force was guilty of theft; but in the case of this delict, the praetor gave a special action Vi bonorum rap-torum. The origin of the action Vi bonorum rap­torum is referred by Cicero to the time of the civil wars, when men had become accustomed to acts of violence and to the use of arms against one another. According!}?-, the Edict was originally directed against those who with bodies of armed men (Jiominibus armatis coactisque) did injury to the property of another or carried it oil (quid aut rapuerint aut damni dederinf). With the estab­lishment of order under the empire the prohibition against the use of arms was less needed, and the word armatis is not contained in the Edict as cited in the Digest (47. tit. 8). The application of the Edict would however have still been very limited, if it had been confined to cases where numbers were engaged in the violence or robbery ; and ac­cordingly the jurists discovered that the Edict, when properly understood, applied also to the case of a single person committing damnum or carrying off property. Originally the Edict comprehended both damnum and bona rapta, and, indeed, damnum which was effected vi homninibus armatis coac­tisque, was that kind of violence to the repression of which the Edict was at first mainly directed. Under the empire the reasons for this part of the Edict ceased, and thus we see that in Ulpian's time the action was simply called " vi bonorum raptorum." In the Institutes and Code the action applies to robbery only, and there is no trace of the other part of the Edict. This instructive illustration of the gradual adaptation, even of the Edictal law, to circumstances is given by Savigny (Zeitschrift,-vol. v. Ueber Cicero Pro Tullio und die Actio vi bo­norum Raptorum), who has also given the masterly emendation of Dig. 47. tit. 8. s. 2» § 7, by Heise,

FUSTUARIUM.

The object of the furti actio was to get a penalty as to the thing stolen the owner could recover it either by a vindicatio, which was available against any possessor, whether the thief or another, or by a condictio, which was available against the thief or his heres, xhough he had not the possession. (Inst. 4. tit. 1. § 19.)

The strictness of the old law in the case of actions of theft was gradually modified, as already shown. By the law of the Twelve Tables, if theft (furtum} was committed in the night, the thief, if caught in the act, might be killed: and he might also be killed in the daytime, if he was caught in the act and defended himself with any kind of a weapon (telum} ; if he did not so defend himself, he was whipped and became addictus, if a freeman (as above stated) ; and if a slave, he was whipped and thrown down a precipice.

The following are peculiar kinds of actiones furti: (1) Actio de tigno juncto, against a person who employed another person's timber in his building ; (2) Actio arborum furtim caesarum, against a person who secretly cut wood on another person's ground ; (3) Actio furti adversus nautas et caupones, against nautae and caupones [ExER-citor], who were liable for the acts of the men in their employment.

There were two cases in which a bona fide pos­sessor of another person's propert}r could not obtain the ownership by usucapion ; and one of them was the case of a res furtiva, which was provided for in the Twelve Tables. The Roman Law as to Furtum underwent changes, as appears from what has been said ; and the subject requires to be treated historically in order to be fully understood. The work of Rein {Das Criminalreckt der Romer) contains a complete view of the matter.

(Gains, iii. 183—209, iv. 1 ; Gellius, xl 18 ; Dig. 47. tit. 2 ; Inst. 4. tit. 1 ; Dirksen, Ueber-siclit^ &c, pp. 564—594 ; Heinec. Syntag. ed. Hau-bold ; Rein, Das Rom. Privatrecht, p. 345 ; Rein, Das Criminalrecht der Romer, p. 293.) [G. L.]

FUSCINA (rpiWa),a trident; more commonly called tridens, meaning tridens stimulus, because it was originally a three-pronged goad, used to incite horses to greater swiftness. Neptune was supposed to be armed with it when he drove his chariot, and it thus became his usual attribute, perhaps with an allusion also to the use of the same instrument in harpooning fish. It is represented in the cut on p. 276* (Horn. II. xii. 27. Od. iv. 506, v. 292 ; Virg. Georg. i. 13, Aen. i. 138, 145, ii. 610 ; Cic. de Nat. Deor. i. 36 ; Philost. Imag. ii. 14.) The trident was also attributed to Nereus (Virg. Aeni. iii 418) and to the Tritons. (Cic. de Nat. Deor. ii. 35 ; Mart. Sped. xxvi. 3.)

In the contests of gladiators the Retiarius was armed with a trident. (Juy. ii. 148, viii. 203.) [gladiator.] [J. Y.]

FUSTUARIUM (frXoicoiria) was a capital punishment inflicted upon the Roman soldiers for desertion, theft, and similar crimes* It was ad­ministered in the following manner i -*— When a soldier was condemned, the tribune/ touched him slightly with a stick, upon'which: all the soldiers ot the legion fell upon him with sticks and stones, and generally killed him upon the spot. If how­ever he escaped, for he was allowed to fly, he coird not return to his native country, nor did-any of his relatives dare to receive him into their houses. (Polyb. vi. 37 ; compare Liv. v. 6.) This punish-

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