The Same, On the Edict, Book XXXVIII. Where the slave does not belong to one person, but to several, and all of them state falsely that he is not under their control, or some of them have done so, or have acted fraudulently to avoid having control of him; each one of them will be liable for the entire amount of damages, just as they would be liable if they had control over said slave; but one party who was not guilty of fraud in order to avoid having control of the slave, or does not make a false statement, will not be liable.

Ad Dig. 13,1,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 453, Note 5.Ulpianus, On the Edict, Book XXXVIII. Hence, even where a theft is committed with the assistance and advice of another party, the latter will not be liable to this action, although he will be to an action for theft.

The Same, On the Edict, Book XXXVIII. A thief can be sued for the recovery of stolen property whether he is a manifest thief or a non-manifest one. A manifest thief, however, will only be liable to an action for recovery where the possession of the property stolen has not been obtained by the owner; for no one is liable to a suit for recovery after the owner has taken possession of the property. Therefore, Julianus, in order that he may proceed with the discussion of the action for recovery in the case of a manifest thief, supposes that the thief, after being caught, has either killed, broken to pieces, or spilled what he had wrongfully appropriated. 1A person also who is liable for robbery with violence, (so Julianus states in the Twenty-second Book of the Digest), can be sued in an action for the recovery of the property. 2Ad Dig. 13,1,10,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 171, Note 2.There is ground for an action for recovery only so long as the ownership of the property has not been lost to the proprietor by his own act; and therefore, if he transfers it to another, he cannot bring suit for its recovery. 3Wherefore Celsus states in the Twelfth Book of the Digest, that if the owner bequeaths the stolen property to the thief absolutely, the heir cannot bring an action against him to recover it; and where the bequest was not made to the thief himself but to another, the same rule is applicable, and an action for recovery will not lie, as the ownership is lost by the act of the testator; that is to say of the owner.

Ulpianus, On the Edict, Book XXXVIII. Consequently Marcellus very properly states in the Seventh Book, that if the property stolen still remains yours you can bring a personal action to recover it; but if you lose the ownership in some other way than by your own act, you can likewise bring suit to recover it. 1Therefore he very aptly says that where the property is held in common, it makes a difference whether you instituted proceedings against your co-owner by an action for partition, or he brought suit against you, and if you instituted proceedings for this purpose you will lose the right to bring a personal action for recovery, but if he did so, he will still retain that right. 2Neratius, in the Books of Parchments, states that it is held by Aristo that he to whom property had been pledged can, if it should be stolen, bring an action for an uncertain amount of damages.

Ulpianus, On the Edict, Book XXXVIII. Ad Dig. 13,7,13 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 316, Note 2.If, when a creditor was selling a pledge, an agreement was entered into between him and the purchaser that if the debtor should pay the purchase-money to the buyer, he shall be entitled to have his property returned; Julianus says it is also stated in a rescript that, on account of this agreement, the creditor is liable by the action on pledge to transfer to the debtor his action on sale against the purchaser. The debtor himself, however, can bring an action to recover the property, or one in factum against the purchaser. 1Both malice and negligence may be the subject of this action, as in the case of a loan for use. Safe-keeping also is included, but irresistible violence is not within its scope.

Ulpianus, On the Edict, Book XXXVIII. The Prætor promulgated this Edict in order to restrict the demands for services imposed in consideration of the grant of freedom; for he perceived that the demands for services imposed in return for freedom increased excessively, for the purpose of oppressing and annoying freedmen. 1Therefore, in the first place, the Prætor promises that he will grant actions with a view to requiring services to be rendered by freedmen and freedwomen.

Ulpianus, On the Edict, Book XXXVIII. When a slave is purchased under this law, subject to the condition that he shall be manumitted, and he obtains his freedom in accordance with the Constitution of the Divine Marcus, any services which have been imposed upon him will be of no force or effect. 1Nor can services be demanded from a freedman to whom property has been assigned under the Constitution of the Divine Marcus promulgated for the purpose of preserving the freedom of slaves, whether they have obtained their freedom directly, or in accordance with the terms of a trust, even if those who have obtained it as the beneficiaries of a trust become the freedmen of the person himself; for they do not become freedmen under the same circumstances as slaves whom we manumit without being compelled to do so. 2The action to compel the performance of services will lie when the time for performing them has passed; the time, however, cannot elapse before the services begin to be due, and they begin to be due after the time for their performance has been indicated. 3Even if the freedman should have a wife, his patron is not prevented from demanding his services. 4If the patron is a minor under the age of puberty, his freedman is not considered to be married with his consent unless the authority of his guardian confirms it. 5Where the marriage of a freed woman is ratified by her patron, it will bar him from objecting to it subsequently.

Ulpianus, On the Edict, Book XXXVIII. A freedman, after his services have been indicated, becomes so ill that he cannot perform them. Will he be liable, because it is clear that it is not his fault that he does not perform the services? 1Services cannot be promised, rendered, due, or demanded in part. Therefore Papinianus gave the following opinion, namely: where there are several distinct services and not merely one, and the patron who stipulated for them left several heirs, it is true that the obligation should be divided in proportion to the number of the heirs. Finally, Celsus, in the Twelfth Book, says that if a freedman, who has two patrons, should swear that he will render a thousand services to a slave held by them in common, five hundred, rather than a thousand halves of the services will be due to each one.

Ulpianus, On the Edict, Book XXXVIII. There is no one who is not aware of the audacity and insolence of farmers of the revenue, and therefore the Prætor promulgated this Edict for the purpose of controlling them. 1“If anyone belonging to the household of a farmer of the revenue is accused of having committed theft, or has caused unlawful injury, and the property in question is not produced, I shall grant an action against the master, without the privilege of surrendering the slave by way of reparation.” 2It must be noted that, in this instance, the slaves of the farmer of the revenue are meant by the term “household.” If, however, a slave belonging to another should be in the service of the farmer of the revenue, in good faith, he will also be included. Perhaps this would also be the case where he served him in bad faith, for wandering and fugitive slaves are often employed in work of this kind by persons who know who they are. Hence, if a freeman is serving in good faith as a slave, this Edict will also apply to him. 3Those also are called farmers of the revenue who lease the income from public lands.

Ulpianus, On the Edict, Book XXXVIII. Whenever a dispute arises as to whether anyone is a freedman or services are demanded of him, or obedience from him is required, or where an action implying infamy is to be brought, or he who alleges that he is the patron is summoned to court, or proceedings are instituted without good cause, a prejudicial action will lie. The same prejudicial action will also be granted where a person confesses that he is a freedman, but denies that he has been liberated by Gaius Seius. It will also be granted where one or the other party requests it, but he who represents himself to be the patron shall always take the part of the plaintiff, for he must prove that the person in question is his freedman, and if he does not do so he will lose his case.

Ulpianus, On the Edict, Book XXXVIII. Generally speaking, in questions dependent on preliminary decisions, he sustains the part of a plaintiff whose claim is in accordance with what he demands.

Ulpianus, On the Edict, Book XXXVIII. If I delegate to my creditor, as my debtor, someone who does not owe me, there will be no ground for an exception, but a personal action will lie against the person who delegated him.

Ulpianus, On the Edict, Book XXXVIII. When Stichus and Pamphilus are promised to two persons, Stichus cannot be delivered to one and Pamphilus to the other, but the half of each one of them is due to each individual creditor. The same rule applies where anyone promises to give two Stichuses or two Pamphiluses, or ten slaves to another slave who belongs to two masters. For the expression “ten slaves,” like “ten denarii,” is ambiguous, and the half of the ten can be understood in two different ways. But with reference to money, oil, wheat, and other things of this kind, which are included in a common species, the intention appears to have been that the obligation should be divided by a number, when this is more convenient for the promisor and the stipulator.

The Same, On the Edict, Book XXXVIII. When a man, by employing violence, steals anything from a house where no one was at the time, he can be sued in an action to recover fourfold the amount of the value of the stolen property, as well as in one for non-manifest theft, if he should not be arrested while carrying away the property.

Ulpianus, On the Edict, Book XXXVIII. It must be remembered that thefts are generally prosecuted criminally, and that he who institutes a prosecution signs the accusation, not that the judgment may become public, but because it appears that the boldness of the culprit should be restrained by extraordinary punishment. Anyone, however, who wishes, can bring a civil action, if he desires to do so.

Ulpianus, On the Edict, Book XXXVIII. If, through the fraud of a slave who was ordered to be free after the death of his master, and before the estate was entered upon, an act is said to have been committed with reference to the property of the person who directed him to be free, in order to prevent some of said property from coming into the hands of the heir, a suit for double damages will be granted against him within the available year. 1This action, however (as Labeo says), is founded rather on natural, than on civil equity. For, as a civil action is not applicable, it is but just, according to Natural Law, that the offender, emboldened by the hope of impunity, should not go unpunished; since, having the expectation of speedily obtaining his freedom, he believes that he cannot be chastised as a slave, nor be condemned as a freeman because he steals from the estate, that is to say from his owner; the master or the mistress cannot bring an action for theft against the slave, even though he should afterwards become free, or be alienated, unless he has also subsequently handled the property with the intention of stealing it. Therefore the Prætor thought that the cunning and impudence of those who despoil estates should be punished by an action for double damages. 2A freedman of this kind will not be liable unless he is alleged to have fraudulently wasted something. The fault and negligence of a slave after his freedom has been obtained is excused; but gross negligence very closely resembles fraud. Hence, if he committed some damage without fraud, this action will not lie; although otherwise, he would be liable under the Aquilian Law for having caused damage of any description whatsoever. Therefore this action has certain restrictions, so that the slave must be guilty of fraud not only after the death of his master, but before the estate has been entered upon. But if he does not commit fraud, or does so during the lifetime of his master, he will not be liable to this action. Nay more, the action will not lie even after the death of his master and the acceptance of the estate, for when the estate has once been entered upon, he can be sued as a freeman. 3What, however, should be done, if he received his freedom under a condition? In this instance, he will not yet be free, but can be punished as a slave; and therefore it must be said that this action will not lie. 4Where, however, his freedom is already obtained, it must be said that this action can and should immediately be granted against him who has become free. 5When a slave who is absolutely bequeathed commits some illegal act against the estate before it has been entered upon, it must be said that there will be ground for this action, for the reason that the ownership of the slave is changed. 6And, generally speaking, we say that, in a case where the ownership of the slave is either changed or lost, or he acquires his freedom within a short time after the estate has been entered upon, in this instance, this action should be granted. 7Where freedom is bestowed upon a slave under the terms of a trust, and he has committed some offence against the estate, can not the heir be prevented from manumitting him before he gives satisfaction? And, indeed, it has been frequently stated in Rescripts by the Divine Marcus, and by our Emperor together with his Father, that, under these circumstances, freedom granted unconditionally by a trust will not be prevented. The Divine Marcus, however, stated in a Rescript that an arbiter must be immediately appointed before whom the account should be rendered. This Rescript has reference to the account to be rendered for acts which the slave performed in the course of his administration. I think, then, that in this instance the action will lie. 8Before the estate is entered upon, we should understand to mean before it is accepted by one person alone, for as soon as one person does so, freedom is acquired. 9Where a ward is appointed an heir, and freedom is granted as soon as he has a substitute, and, in the meantime, some damage is committed, if this takes place during the lifetime of the minor, there will be no ground for this action. If, however, it should be committed after his death, and before anyone succeeds him, there will be ground for it. 10This action will not only lie with reference to property belonging to the estate of the testator, but also where it is to the interest of the heir that fraud should not be committed to prevent the property from coming into his hands. Therefore Scævola treats the question more fully, for if the slave has stolen property which the deceased received by way of pledge, this prætorian action can be brought; because we understand the case of the property in a broader sense as meaning utility. For if the Prætor, on account of the condition of servitude existing, substituted this action instead of the one for theft, it is probable that he should have substituted it in every case in which an action for theft could be brought. And, in a word, this action is understood to lie with reference to property pledged, as well as to such as is held by bona, fide possessors. The same rule applies to articles lent to the testator. 11Likewise, if this slave, who has the prospect of his freedom, should steal crops which have been gathered after the death of the testator, there will be ground for this action. When the children of slaves, or the increase of cattle born after the death of the testator are involved, the same opinion must be given. 12Moreover, if a child under the age of puberty, after the death of his father, obtains the ownership of property, and the estate of the minor is stolen before it has been entered upon, it must be said that there will be ground for this action. 13This action can also be brought with reference to any property which it was to the interest of the heir not to have appropriated. 14This action not only applies to thefts, but also to all cases involving damage which the slave has committed against the estate. 15Scævola says that theft of possession can take place, for if there is no possessor, theft cannot be committed; therefore theft cannot be committed against an estate, because the latter has no possession, which is, indeed, a matter of fact and intention. The heir does not have possession before he actually obtains control of the property, because the estate only transmits to him that of which it is constituted, and possession forms no part of it. 16It is true that if the heir can, in any other way, obtain that to which he is entitled, the Prætorian Action should not be granted, since the decision is based upon what the person has an interest in acquiring. 17Besides this action, it is established that a suit for recovery will also lie, as this proceeding resembles one for theft. 18It must be said that this action will also lie in favor of the heir and other successors. 19Where several slaves have received their freedom, and have maliciously caused some injury, each of them can be sued for the entire amount, that is to say, for double damages; and as they are prosecuted on account of the crime as in the case of theft, none of them will be released, even though one should make payment after he has been sued.

Ulpianus, On the Edict, Book XXXVIII. An action is granted against those who have control of ships, inns, and other places of public entertainment, where anything is alleged to have been stolen by any one of them, or by persons in their employ; whether the theft was committed with the aid and advice of the proprietor himself, or the owner of the ship, or of those who were on board for the purpose of navigation. 1We understand the words “for the purpose of navigation,” to refer to those who are employed to navigate a ship, that is to say, the sailors. 2This action is also for double damages. 3For when property is lost in an inn or on a ship, the owner or lessee of the vessel, or the landlord, is liable under the Edict of the Prætor; so that it is in the power of the person from whom the property was stolen to proceed against the proprietor under the Prætorian Law, or against the thief under the Civil Law, whichever he may prefer. 4If the innkeeper or the owner of the ship received the property “to be safely cared for,” the owner of the same cannot bring the action for theft, but he who assumed responsibility for its safe-keeping will be entitled to bring it. 5The owner of the ship, however, can release himself from liability incurred by the act of his slave, by surrendering the latter by way of reparation for the damage committed. Why then should not the owner be condemned, who permitted so bad a slave to remain on his ship? And why is he held liable for the entire amount for the act of a freeman, and not for that of the slave? unless when he employed a freeman, it was his duty to ascertain what his character was; but he should be excused so far as his slave is concerned, just as in the case of a bad domestic, if he is ready to surrender him by way of reparation for the damage he committed. If, however, he employed a slave belonging to another, he will be liable, as in the case of a freeman. 6An innkeeper is responsible for the acts of those who are in his house for the purpose of transacting his business, as well as for all permanent lodgers; he is, however, not responsible for the acts of travellers, since an innkeeper cannot select the travellers, nor can he exclude them while they are pursuing their journey. He, however, to a certain extent, selects his permanent lodgers, if he does not reject them, and he must be liable for their acts. In like manner, the captain of a ship is not liable for the acts of his passengers.

Ulpianus, On the Edict, Book XXXVIII. The Prætor introduced this most useful Edict in order to enable a master to provide against the offences of his slaves; for instance, where several of them had committed theft, they could not destroy the patrimony of their master if he was compelled to surrender all of them by way of reparation for the injury committed, or to pay the appraised value of each of them in court. Therefore, if he desires to admit that his slaves are liable for damage committed by them, he has the choice, under this Edict, to surrender all who participated in the theft; or if he prefers to tender their estimated value, he can tender as much as a freeman would be compelled to do, if he had committed a theft, and retain his slaves. 1This power is granted to a master, whenever the theft was committed without his knowledge. If, however, he was aware of it, this privilege will not be conceded to him, for he can be sued in a noxal action both in his own name and in the name of each of his slaves, and he cannot free himself from liability by paying the estimated value once, which a freeman can do. The word “aware” is understood to mean where he knew of the crime and could have prevented it, for we should consider knowledge as also including the will. If, however, he was aware of the theft and prevented it, it must be said that he is entitled to the benefit of the Edict. 2Where several slaves have caused damage through their negligence, it is but just that the same privilege should be granted their master. 3When several slaves steal the same article, and an action is brought against the master on account of one of them, proceedings against the others should remain in abeyance until the plaintiff, by the first judgment, recovers as much as he would have done if a freedman had committed the theft:

Ulpianus, On the Edict, Book XXXVIII. Whenever the master pays as much as he would if a single freeman had committed the theft, the right of action with reference to the others is extinguished, not only against the master himself but also against the purchaser, if any one of the slaves, who together had committed the theft, should be sold. The same rule will apply if the slave should be manumitted. If the money had first been collected from the manumitted slave, then the action will be granted against the master of all the slaves; for it cannot be said that what was paid by the manumitted slave was, as it were, paid by all of them. I think it is clear that if the purchaser should pay, an action against the vendor ought to be denied; for payment was, to a certain extent, made by the vendor, against whom sometimes recourse can be had in such a case, and especially if he declared that the slave who was sold was not liable to be surrendered by way of reparation for damage, and was not guilty of theft. 1If an action should be brought against a legatee on account of a slave who has been bequeathed, or against a person to whom he has been donated, can proceedings also be instituted against the owner on account of the other slave? is a question which may be asked. I think that this ought to be admitted. 2The relief of this Edict is not only granted to him who, possessing slaves and having had judgment rendered against him, only pays as much as if a single freeman had committed the damage, but it also benefits him who was condemned because he committed fraud to avoid having possession.

Ulpianus, On the Edict, Book XXXVIII. Trees are considered to have been cut by stealth when they are felled without the knowledge of the owner, and with the intention of concealing it from him. 1Pedius says, that this action is not one of theft, as it is possible for a person to cut down trees by stealth without the intention of committing theft. 2If anyone should tear out a tree by its roots or extirpate it, he will not be liable to this action, for he did not cut it down, or cut it away, or cut it off. He will, however, be liable under the Aquilian Law for having broken it. 3Even if the entire tree has not been cut down, the action will properly be brought as if it had been cut down. 4A person will be liable under this action whether he girdles, cuts off, or cuts down trees with his own hands, or whether he orders his slave to do so. The same rule applies when he gives such an order to a freeman. 5When a master did not order his slave, but the latter committed the act voluntarily, Sabinus says that a noxal action will lie, as in other offences. This opinion is correct. 6This action, although it is a penal one, is perpetual, and is not granted against an heir, but it will be granted in favor of an heir and other successors. 7Judgment in a case of this kind includes double damages.

Ulpianus, On the Edict, Book XXXVIII. A patron who has been deported, and afterwards restored to his civil rights, is admitted to the succession of a freedman. 1If, however, a person has been condemned to the mines, does his penal servitude extinguish his right as a patron, even after his restoration? The better opinion is that penal servitude does not extinguish his rights as a patron.

The Same, On the Edict, Book XXXVIII. These words, “As much as the property appears to be worth,” do not refer to the measure of damage, but to the estimated value of the property.