The Same, On the Edict, Book XXXVII. Where a slave owned in common commits a theft, any one of his masters is liable to a noxal action for the entire amount, and this is the rule at the present time. But the party against whom suit is brought cannot avoid payment of the damages unless he surrenders the slave entirely; for if he should be ready to surrender only a share in him, this will not be tolerated. It is evident that if, on account of this, the other owners are not prepared to surrender the slave, he should then be required to pay the entire amount, and he can institute proceedings against the other owner in partition, or for a division of the interest in the slave. He can, however, before issue is joined in the noxal action, obtain immunity by surrendering his share in the slave so that it will not be necessary for him to make a defence; although someone may state that it might happen where a share in said slave is transferred to the party he loses his right of action; for when he becomes the owner of a share he cannot institute proceedings against a joint-owner by means of a noxal action; and perhaps he could not bring an action in partition on account of an offence which was committed before the joint-ownership began, and if he cannot do this he will evidently suffer injury. It, however, seems to me best to hold that an action for the division of common property will lie in his favor.

The Same, On the Edict, Book XXXVII. Where anyone purchases from a debtor a slave who has been pledged and then stolen by him, the purchaser will be liable on the ground of theft, after he has acquired the ownership of the slave; and no objection can be made that the slave can be recovered by him, by means of the Servian Action. The rule is the same where a party makes a purchase from a minor under twenty-five years of age, or knowingly for the purpose of defrauding creditors; as, although the latter can be deprived of their ownership, still, in the meantime, suit can be brought against them.

Ulpianus, On the Edict, Book XXXVII. Just as he would if he had sold him to another party, for, indeed, it makes little difference to whom he sells him, whether to his adversary or to someone else; and it will be his own fault if he has to submit to the payment of the damages assessed, since by selling him he deprived himself of the power of surrendering him by way of reparation. 1Julianus, however, states in the Twenty-second Book of the Digest, that if I abandon the slave who stole your property, I am released from liability, because he at once ceased to belong to me; otherwise an action for theft could be brought on account of him who has no owner. 2Where my slave steals your property and sells it, and you deprive him of the money in his possession which he obtained as part of the price of said property, there will be ground for an action of theft on both sides; for you can bring a noxal action of theft against me on account of the slave, and I can bring one against you on account of the money. 3Moreover, where I pay money to the slave of my creditor in order that he may give it to his master, there will also be ground for an action of theft, if the slave appropriates the money he received.

Ulpianus, On the Edict, Book XXXVII. Where a party, on account of whom issue has been joined in a noxal action, claims his freedom, proceedings should be stayed until his condition is determined; hence if he should be declared to be a slave, the noxal action will proceed, but if he is decided to be free it will be held to be of no effect. 1Where a party undertakes to defend a noxal action on account of a slave who is dead, and he is ignorant of the fact, he should be discharged from liability, because it has ceased to be true that he should surrender anything on account of said slave. 2These actions are not barred by lapse of time, and are available as long as we have the power of surrendering the slave; for they can be brought not only against us but also against our successors, as well as against the successors of the party liable in the first place, not because they succeed to his liability, but on the ground of ownership. Hence, if a slave has come into the hands of another party, his new owner can be sued in a noxal action on the ground of ownership.

Ulpianus, On the Edict, Book XXXVII. Where a slave is taken by the enemy, and someone, having been interrogated in court, answers with reference to him that he is under his control; although the right of postliminium may cause us to hesitate, nevertheless, I do not think that there is ground for a noxal action, because the slave is not under our control. 1Although it is held that a party is liable who confesses that another slave is his; still, it has been very properly held that he is only liable if the slave could have been his own, but if he could not acquire ownership in him, he is not liable.

Ulpianus, On the Edict, Book XXXVII. Where a woman, with the intention of obligating herself for another, states in court that the slave of someone else belongs to her, she can avail herself of the aid of the Decree of the Senate on the ground of having bound herself for another. It is evident that if she made this answer with reference to one who was serving her as a slave in good faith, she will not be considered to have bound herself for another.

Ulpianus, On the Edict, Book XXXVII. Where the number of witnesses is not specified by law, two are sufficient, for the term “several” is embraced in the number two.

Ulpianus, On the Edict, Book XXXVII. In the action for theft it is not the damages which are quadrupled or doubled, but the true price of the property itself. If, however, the property has ceased to exist at the time judgment is rendered, this, nevertheless, should be done. The same rule applies if the property at present has become deteriorated, for the valuation will be referred to the time when the theft was committed. If the property has become more valuable, double the amount of the value will be estimated at the time when it was worth the most; because it is more true to say that the theft was committed at that time. 1Celsus asserts that a theft is committed with aid and advice, not only when this is done in order that the parties might steal together, but even if this intention did not exist, and where the theft was committed through motives of hostility. 2Pedius very properly says that, as no one commits a theft without fraud, assistance and advice to commit it cannot be given without fraud. 3He is considered to give advice who persuades, induces, and gives information for the commission of the theft. He gives assistance who furnishes his services and aid for the secret removal of the property. 4Anyone who shows a red cloth to cattle and puts them to flight, in order that they may fall into the hands of thieves, and does so with fraudulent intent, will be liable to an action for theft. Even if he does not do this for the purpose of perpetrating a theft, so dangerous a jest should not go unpunished. Therefore, Labeo says that an action in factum should be granted against him.

Ulpianus, On the Edict, Book XXXVII. When anyone gives aid or advice to a wife who steals the property of her husband, he will be liable for theft. 1Even if he commits theft with her, he will be liable to the action for theft, while she will not be liable. 2If she, herself, gives assistance to the thief, she will not be liable for theft, but for the fraudulent removal of property. 3There is no doubt whatever that she will be liable for a theft committed by her slave. 4The same must be said with reference to a son under paternal control who is serving in the army; for he will not be liable for a theft perpetrated on his father; but he will be responsible for the act of his castrensian slave, if the latter steals from his father. 5If my son, who has a castrense peculium, steals something from you, let us see whether I can bring an equitable action against him, as he has property with which to satisfy the judgment. It may be maintained that the suit may be brought. 6Will the father, however, be liable to his son if he has removed something from his castrense peculium? is a question which we should consider. I think that he will be liable, for he not only steals something from his son, but he can also be sued in an action for theft. 7Mela says that a creditor who does not return a pledge after his money has been paid to him is liable for theft, if he retains the pledge for the purpose of concealing it, which I believe to be true. 8Where there are sulphur mines in a field, and anyone removes the sulphur from them, the owner will be entitled to an action for theft and afterwards the tenant can, by proceeding under his lease, compel the former action to be assigned to him. 9If your slave, or your son, receives clothing for the purpose of cleaning it, and it is stolen; the question arises whether you will be entitled to an action for theft. If the peculium of the slave is stolen, you can bring an action for theft, but if it is not stolen, it must be said that an action of this kind will not lie. 10If, however, anyone purchases stolen property, not knowing that this is the case, and he is dishonestly deprived of it, he will be entitled to an action for theft. 11It is stated by Labeo, that if a man should direct a flour-merchant to furnish anyone with flour who asks for it in his name, and a passer-by having heard this should ask for the flour in his name, and receive it, an action for theft will lie in favor of the flour-merchant against the person who made the demand, and not in my favor, for the flour-merchant was transacting business for himself, and not for me. 12Where anyone receives my fugitive slave as his own from a duumvir, or from any other magistrate who has authority to release persons from prison, or from custody, will he be liable to an action for theft? It is established that if he gave sureties, an action should be granted to the owner against them, and they should assign their rights of action to me. If, however, he did not take sureties but surrendered the slave to the claimant, as to one who was receiving what belonged to him, the owner will be entitled to an action for theft against the kidnapper. 13If anyone strikes gold or silver coins, or any other property, out of the hand of another, he will be liable for theft, if he did so with the intention that a third party should take them, and he should carry them away. 14Ad Dig. 47,2,52,14Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 187, Note 3.Where anyone steals a silver ingot belonging to me, and makes cups out of it, I can either bring suit for the theft of the ingot, or a personal one for the recovery of the property. The same rule applies to grapes, and their unfermented juice, and seeds; for the action for the theft of grapes, their unfermented juice, and their seeds, can be brought, as well as a personal action. 15A slave who alleges that he is free in order that money may be lent to him does not commit theft, for he only asserts that he is a solvent debtor. The same rule applies to one who pretends to be the head of a household in order that money may the more readily be loaned to him when, in fact, he is a son under paternal control. 16Julianus, in the Twenty-second Book of the Digest, says that if anyone should receive money from me to pay my creditor, and, as he himself owes the same sum to the same creditor, he pays it in his own name, he commits theft. 17If Titius sells property belonging to another, and receives the price of it from the purchaser, he is not considered to have stolen this money. 18When one of two general partners receives property in pledge, and it is stolen, Mela says that he alone who received the pledge will be entitled to an action for theft, and that his partner will have no right to it. 19No one can commit a theft by words, or by writing; for it is an accepted principle that a theft cannot be committed without handling the article in question. Wherefore, giving assistance or advice only becomes criminal when the property is afterwards handled. 20If anyone excites my ass to induce him to cover his own mares, for the purpose of breeding colts, he will not be liable for theft, unless he had also the intention of stealing. I gave this opinion to my friend Herennius Modestinus, who consulted me from Dalmatia, with reference to stallions to which mares had been brought for this purpose by a man who was afterwards held liable for theft; if he had the intention of stealing, but if he had not, an action in factum would lie. 21As I was willing to lend money to Titius, who was an honorable man and solvent, you substituted for him another Titius who was poor, representing to me that he was the wealthy Titius, and, having received the money, you divided it with him. You are liable for theft, as it was committed with your assistance and advice, and Titius will also be liable for theft. 22If, when you make a purchase, anyone should lend you heavier than legal weights, Mela says that he will be liable to the vendor for theft, and that you also will be, if you were aware of the facts; for you did not receive the article by the consent of the vendor, as he was deceived in the weight. 23If anyone should persuade my slave to erase his name from an instrument, for instance, from a bill of sale, Mela says, and I think, that an action for theft can be brought. 24Where my slave has been persuaded to copy my registers, I think that an action for the corruption of a slave can be brought against the person who persuaded him; and if he himself copies them, an action for fraud should be granted. 25When a string of pearls has been stolen, the number of them must be stated. Where an action is brought for the theft of wine, the number of jars which were taken must be mentioned. If vases are appropriated, the number must be given. 26If my slave, who has the free administration of his peculium, should make an agreement (but not for the purpose of donation), with someone who has stolen his peculium, he is considered to have engaged in a legitimate transaction; for although an action for theft may be acquired for his master, still it forms part of the peculium of the slave. If the entire penalty of double the value of the theft is paid to the slave, there is no doubt that the thief will be released. The result of this is, that if the slave should have received from the thief what seems to him to be satisfaction for the property stolen, the transaction will also be considered legitimate. 27Where anyone swears that he has not committed a theft, and he afterwards handles the stolen property, the right of action for theft is extinguished, but that to pursue the property is still preserved for the owner. 28When a stolen slave has been appointed an heir, the plaintiff can also obtain the value of the estate in an action of theft, provided the slave died before he entered upon the estate by the order of his master. The same result can be obtained by bringing a personal action for the recovery of the dead slave. 29If a slave who is to be free under a condition is stolen, or any property conditionally bequeathed is appropriated and the condition afterwards should be fulfilled, before the estate has been entered upon, the action for theft cannot be brought, because the interest of the heir has ceased to exist. While the condition is pending, however, the value of the slave should be estimated as the price for which he could be sold.

Ad Dig. 47,3,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 188, Note 16.Ulpianus, On the Edict, Book XXXVII. The Law of the Twelve Tables does not permit a beam which has been stolen to be detached from a house, or a stake to be removed from a vine, or an action be brought for its recovery; which provision has been prudently established by the law to prevent buildings from being demolished, or the culture of vines being interfered with, under this pretext. But where anyone is convicted of having united these things, the law grants an action for double damages against him. 1In the term “beam” are included all the materials of which a house is composed, and everything necessary for vines. Wherefore, certain authorities hold that tiles, stone, brick, and other materials which are useful in building (for the word beam is derived from the verb to cover), as well as lime and sand, are embraced in this appellation. Also, in the case of vines, everything required for their cultivation is included under this term, as, for instance, stakes and props. 2An action for the production of property is, however, granted, for he cannot be indulged who, knowing property to belong to another, includes it in, or joins it to, or connects it with his own building, for we do not sue as the possessor, but as one who has committed fraud to avoid being in possession.

The Same, On the Edict, Book XVIII. If anyone kills a thief at night, he can only do so with impunity, when he could not have spared him without placing himself in jeopardy.

Ulpianus, On the Edict, Book XXXVII. The expression, “Or more,” does not include an unlimited sum of money, but a moderate one; just as the limiting clause, “Ten or more solidi,” has reference to the smaller sum.