Paulus, On Sabinus, Book IX. Where a slave is sued in an action based on theft, it is certain that damages can be claimed to the amount of the interest of the plaintiff; as, for instance, where he was appointed heir, and his master may be in danger of losing the estate; and Julianus is of this opinion. Moreover, if the action is brought for a slave who is dead, the plaintiff will obtain the value of the estate.

Paulus, On Sabinus, Book IX. An action arising from theft can be brought against a son under paternal control, for no one is ever liable to an action of this kind but the party who committed the theft or his heir.

Paulus, On Sabinus, Book IX. A son under paternal control is not entitled to an action in his own name, except for the reparation of injury sustained, and where he has been deprived of property by violence or clandestinely, or to recover property which he has deposited or lent; which is the opinion of Julianus.

Paulus, On Sabinus, Book IX. If I stipulated with you for what I believed to be gold, when, in fact, it was brass, you will be liable to me for the brass, as we agreed upon the object; but I can bring an action against you on the ground of fraud, if you knowingly deceived me.

Paulus, On Sabinus, Book IX. If a minor owes Stichus under a stipulation, he is not considered to be in default, and be liable, if Stichus should die, unless a demand was made upon him with the consent of his guardian, or it was made upon his guardian alone.

Paulus, On Sabinus, Book IX. The place where anyone intends to take stolen property should be understood to mean where he expected to remain that day with the proceeds of the theft.

Paulus, On Sabinus, Book IX. For although theft is often committed by merely handling an object, still, in the beginning, that is to say, when the theft was committed, is the time which has been established to determine whether or not the culprit is a manifest thief.

Paulus, On Sabinus, Book IX. The party in interest is entitled to the action for theft if the case is an honorable one.

Paulus, On Sabinus, Book IX. When it is said that the injury follows the person, this is true to the extent that the right of action follows him who commits the damage, where it arises against anyone in the beginning. Hence, if your slave steals something from me, and, having become his owner, I sell him, the Cassians hold that I cannot bring an action against the debtor.

Paulus, On Sabinus, Book IX. Where brass is given in pledge, and it is stated to be gold, a dishonorable act, but not a theft, is committed. If gold is pledged, and afterwards, under the pretext of weighing, or sealing it, brass is substituted for the gold, the person who does so commits a theft, for he has appropriated property given in pledge. 1If you purchase my property in good faith, and I steal it from you, or even if you are entitled to the usufruct thereof, and I put it aside with the intention of appropriating it, I will be liable to you in an action for theft, notwithstanding I am the owner of the property. In these cases, however, usucaption will not be prevented, as where it is stolen; for, if another had stolen it, and the property should again come under my control, usucaption will continue to run.

Paulus, On Sabinus, Book IX. Where a thief breaks or destroys anything, which he did not handle for the purpose of stealing it, an action of theft cannot be brought against him on this account. 1If, for instance, a chest should be broken into with the intention of stealing pearls, and they were handled with this dishonest purpose, it seems that the culprit had intended to steal them alone; which is correct. For the other articles which were displaced in order to reach the pearls were not handled for the purpose of stealing them. 2Anyone who scrapes a silver dish is a thief of all of it, and he is liable to an action for theft to the extent of the owner’s interest.

Paulus, On Sabinus, Book IX. Julianus says that a personal action for recovery cannot be brought against him.

Paulus, On Sabinus, Book IX. If wild bees swarm upon a tree of your land, and anyone removes either the bees or their honey, he will not be liable for theft to you, because they were not yours, and it is established that they are included among those things which can be seized on land or sea, or in the air. 1Ad Dig. 47,2,26,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 186, Note 6.It is also settled that a tenant who pays rent in money can bring an action for theft against anyone who steals his standing crops, because they would have begun to belong to him as soon as he had gathered them.

Paulus, On Sabinus, Book IX. If, however, he should steal something, he will only be liable for the interest which the owner had in not having the article stolen, for, by defacing it, he adds nothing to the penalty.

The Same, On Sabinus, Book IX. If the will has been mutilated.

Paulus, On Sabinus, Book IX. Some authorities think that, in an action for theft, an estimate of the accounts should only be made, for the reason that if the amount of the debt can be proved before a judge having jurisdiction of an action of theft, it can also be proved before one having jurisdiction of a suit brought for the collection of the money. If, however, it cannot be established before the judge having jurisdiction of the action for theft, the amount of the damage sustained cannot be shown. Still, it might happen that, after the theft has been committed, the plaintiff could recover the accounts, so that he can prove how much damage he would have sustained if he had not recovered them. 1The principal question with reference to the Aquilian Law is, how can the value of the party’s interest be established? For if it can be proved in any other way, he does not sustain any damage. What then is the rule, if he should happen to lend money under a condition, and, in the meantime, the witnesses on whom he relies for proof die before the condition is fulfilled? Or, suppose I have demanded a sum of money, which I lent, and because I do not produce the witnesses who signed the agreement, I lose my case; if I bring an action for theft, I can make use of their memory and their presence to prove that I lent the money.

Paulus, On Sabinus, Book IX. Anyone who assists a thief is not always himself a manifest thief; hence it happens that he who furnished assistance is liable for non-manifest theft, and he who was caught in the act is guilty of manifest theft of the same property.

The Same, On Sabinus, Book IX. A mother whose son has been stolen is not entitled to an action for theft. 1Although an action for theft can be brought on account of free persons, a personal action for recovery will still never lie.

Paulus, On Sabinus, Book IX. Anyone who takes beasts of burden to a greater distance than was agreed upon when they were lent to him, or who makes use of property belonging to another against the consent of the owner, commits a theft.

Paulus, On Sabinus, Book IX. If a slave should assume command of a ship without the consent of his master, the common rule should be applied against the latter for anything which is lost in the ship; so that what the slave is responsible for may be taken out of his peculium, and any negligence of the owner himself must in addition be atoned for by a noxal action. Therefore, if the slave should be manumitted, the right to bring the action De peculio will continue to exist against a master for a year, but the noxal action will follow him. 1Sometimes both the manumitted slave and the person who gave him his freedom are liable for theft, if the latter manumitted the slave in order to prevent an action for theft from being brought against him. When, however, the master is sued, Sabinus says that the manumitted slave is released by operation of law, just as if it had been decided that this should be the case.

Paulus, On Sabinus, Book IX. If the ownership of the stolen property is changed in any way whatsoever, the action for theft will lie in favor of the actual owner; as, for instance, in favor of the heir and the prætorian possessor of the estate, as well as of an adoptive father, and a legatee.

Paulus, On Sabinus, Book IX. Where trees are cut down by stealth, Labeo says that an action should be granted under the Aquilian Law, as well as under the Law of the Twelve Tables. Trebatius, however, holds that both actions should be granted in such a way that the court, in rendering a decision in the second action, should deduct the amount recovered in the first, and give judgment for the remainder.

Paulus, On Sabinus, Book IX. To cut down is not merely to cut, but to cut with the intention of felling; to girdle is to remove the bark; to cut away is to cut underneath; for one cannot be understood to have cut down a tree who has divided it with a saw. 1In this proceeding the cause of action is the same as in that under the Aquilian Law. 2He who has the usufruct in the land cannot bring this suit. He who has leased land belonging to the State can bring this suit, just as he can the action for taking care of rain-water and the one to establish boundaries.