The Same, On Sabinus, Book XLI. An action can be brought against the son of a family with reference to both contracts and offences, but where a son dies after joinder of issue, the right of action will be transferred to his father; only, however, with reference to his peculium or any advantage which he may have obtained. It is evident that if the son of a family undertakes a defence as the agent of another, then, if he dies, the right of action will be transferred to the party whom he defended.

Ulpianus, On Sabinus, Book XLI. Where anyone defaces a will, let us consider whether an action for wrongful damage will not lie? Marcellus states with some hesitation in the Fifth Book of the Digest, that the action cannot be brought; for he asks in what way can the amount of damages be ascertained? I made a note on Marcellus that this is indeed true with reference to the testator, because no estimate can be made of his interest in the matter; but with reference to the heir or legatees the case is different, since, so far as they are concerned, a will is almost the same as a written acknowledgment of a debt; and Marcellus also says that where a promissory note is defaced by erasure, an action under the Lex Aquilia will lie. Moreover, if anyone should destroy a will deposited with him, or should read the same in the presence of several persons, it is more advisable for an action in factum—and for injury as well—to be brought if the party published the secret provisions of the will for the purpose of committing a wrong. 1Pomponius very properly states that it sometimes happens that a party by destroying a will does not become liable for theft, but only for the commission of injury, for instance where he did not destroy it with the intention of committing a theft, but only to cause damage; for then he will not be liable for theft, since theft involves not only the act of stealing but the intention also.

Ulpianus, On Sabinus, Book XLI. And if judgment is rendered against the son he must comply with it, for he is held by the decision. Moreover, it must be stated that his father also is liable to an action De peculio, after judgment has been pronounced against the son.

Ad Dig. 13,1,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 359, Note 14.Ulpianus, On Sabinus, Book XLI. Where a slave or a son under paternal control commits a theft, an action can be brought against the owner of the slave for whatever came into his hands; and with respect to the remainder, the owner can surrender the slave by way of reparation.

Ad Dig. 13,7,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 137, Note 5.Ulpianus, On Sabinus, Book XLI. Where an agreement is made with reference to the sale of the property pledged, either in the first place or afterwards; then, not only is the sale valid, but the purchaser immediately obtains the ownership of the property. But, although nothing was agreed upon with reference to the sale of the property pledged, still, the law is that it can be sold, provided no agreement was entered into preventing it; but if an agreement was made that it should not be sold, and the creditor then sells it, he will be liable to an action for theft, unless the debtor was thrice notified to make payment, and did not do so.

Ulpianus, On Sabinus, Book XLI. Where a slave makes a deposit, the party with whom it is made is authorized by good faith, and most justly, to return the property to the slave; for it is not consistent with good faith to refuse to deliver what anyone has received, but it should be returned to him from whom he obtained it, and this should be done in such a way as to restore it without any bad faith, that is to say, that there may not be even a suspicion of negligence. Sabinus further explains this, by adding that there should be no cause for the depositary to think that the master was unwilling for the property to be returned to the slave; and this is correct, unless he was influenced by some good reason to suspect the slave, but it is sufficient if he displayed good faith. If, however, the slave had previously been guilty of theft, and the party with whom the deposit was made was ignorant of the fact, or believed that the master was not unwilling for the delivery of the property, he will be released from liability, for good faith is always required. Not only will the depositary be released by returning the property to the slave if the latter remained in servitude, but also if he was manumitted or alienated, provided he did so for good and sufficient reasons; for instance, if he returned it not knowing that the slave had been manumitted or alienated. Pomponius states that the same rule should be observed in the case of all debtors.

Ulpianus, On Sabinus, Book XLI. There is no doubt whatever that anyone can sell property belonging to another, for there is a sale and purchase in this case, but the purchaser can be deprived of the property by legal process.

The Same, On Sabinus, Book XLI. Where anyone throws merchandise belonging to another into the sea for the purpose of saving his own, he will not be liable to any action. If, however, he does this without any reason, he will be liable to an action in factum; and if he should do so with malicious intent, he will be liable to an action on that ground. 1Ad Dig. 19,5,14,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 326, Note 6.If anyone should strip a slave belonging to another, and he dies of cold, an action on the ground of the theft of his clothing as well as one in factum on account of the slave can be brought; the right to proceed criminally against the thief remaining unimpaired. 2If anyone should throw into the sea a silver cup belonging to another, Pomponius, in the Seventeenth Book on Sabinus, says that neither an action of theft, nor one on the ground of unlawful damage will lie, but that one in factum can be brought. 3Where acorns fall upon my land from a tree belonging to you, and I permit my cattle to feed upon them, Aristo says that he knows of no legal action whereby I can proceed, because suit with reference to the pasturage of the cattle cannot be brought under the Law of the Twelve Tables, as they did not pasture upon your premises, nor one for trespass, nor one for unlawful damage. Hence an action in factum should be brought.

Ad Dig. 46,3,18Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 427, Note 4.Ulpianus, On Sabinus, Book XLI. Where anyone pays a slave who has been appointed to collect the money, after his manumission, if this is in accordance with the contract of his master, it will be sufficient that he was not aware that the slave had been manumitted. If, however, the money was paid for some reason connected with the peculium, even though the master knew that the slave had been manumitted, still, if he did not know that he had been deprived of his peculium, he will be released from liability. In both cases, however, if the manumitted slave did this for the purpose of taking the money from his master, he will be guilty of theft. For if I direct my debtor to pay a sum of money to Titius, and I then forbid Titius to accept it, and the debtor is not aware of this, and pays Titius, who pretends to be the agent, the debtor will be released, and Titius will be liable in an action of theft.

Ulpianus, On Sabinus, Book XLV. The Civil Law prescribes that heirs shall not be liable to penal actions any more than other successors, and therefore they cannot be sued for theft. But although they are not liable in an action of theft, still they will be in one to compel them to produce the property in question, if they have possession of it, or if they have committed fraud to avoid being in possession; since when it is once produced, they will be liable to be sued for its recovery. A personal action will also lie against them. 1It is also established that an heir can bring an action of theft, as the prosecution of certain crimes is conceded to heirs. In like manner, an heir is entitled to the action granted by the Aquilian Law; but a suit for injury sustained will not lie in his favor. 2Not only in the action of theft, but also in other actions arising from criminal offences, whether they are civil or prætorian, it is decided that the crime follows the person.

Ulpianus, On Sabinus, Book XLI. A manifest thief is one whom the Greeks call ἐπαυτωφρα; that is to say, one who is caught with the stolen goods. 1It makes little difference by whom he is caught, whether by one to whom the property belongs, or by another. 2But is he a manifest thief only when he is caught in the act, or when he is caught somewhere else? The better opinion is, as Julianus also says, that even if he is not caught where he committed the crime, he is, nevertheless, a manifest thief if he is seized with the stolen property before he has conveyed it to the place where he intended to take it.

Ulpianus, On Sabinus, Book XLI. Therefore, if he is arrested in a public or a private place, before he has transported the stolen property to the destination which he had in view, he is considered a manifest thief; provided he is taken with the stolen article in his possession. This was also stated by Cassius. 1If, however, he has carried the stolen property to the place where he intended to take it, even if he is seized with it in his possession, he is not a manifest thief.

Ulpianus, On Sabinus, Book XLI. If anyone in servitude commits a theft, and is caught after having been manumitted, let us see whether he is a manifest thief. Pomponius, in the Nineteenth Book on Sabinus, says that he cannot be prosecuted as a manifest thief, because the origin of a theft committed while in slavery was not that of manifest theft. 1Pomponius very properly says, in the same place, that the thief does not become a manifest one unless he is caught. Moreover, if I commit a theft by taking something from your house, and you have concealed yourself to prevent me from killing you, even if you saw me commit the theft, still, it is not a manifest one. 2Celsus, however, adds to the result of detection, that if you have seen the thief in the act of stealing, and you run forward to arrest him, and he takes to flight, he is a manifest thief. 3He thinks it makes very little difference whether the owner of the property, a neighbor, or any passer-by, catches a thief.

Ulpianus, On Sabinus, Book XLI. A child under the age of puberty can commit a theft if he is capable of crime, as Julianus states in the Twenty-second Book of the Digest. Likewise, an action for injury sustained can be brought against a child under the age of puberty, because the theft was committed by him; but this admits of a modification, for we do not think that the action under the Aquilian Law which can be brought against a child under the age of puberty, who is capable of guilt, is applicable to infants. What Labeo says is also true, that is, where theft has been committed with the aid of a child under the age of puberty, it will not be liable.

Ulpianus, On Sabinus, Book XLI. The rule adopted by most authorities, that the theft of a tract of land cannot be committed, is true. 1Ad Dig. 47,2,25,1ROHGE, Bd. 22 (1878), Nr. 66, S. 299: Cond. possessionis gegen den aus Irrthum Besitzenden. Besitz ein Vermögensobject.Hence, the question arises, if anyone is ejected from land, can a personal action for its recovery be brought against him who ejected him? Labeo denies that it can. But Celsus thinks that a personal action can be brought to recover possession, just as when movable property is stolen. 2There is no doubt that an action of theft can be brought where anything is removed from land, for example, trees, stones, sand, or fruits, which someone has taken with the intention of stealing them.

Ulpianus, On Sabinus, Book XLI. Anyone who appropriates account-books, or written instruments, is liable for theft, not only for the value of the account-books, but also for the interest which the owner had in them, which has reference to the estimate of the sums included in the accounts, that is to say, if they amounted to that much money; for instance, if they contained an account of ten aurei, we say that this sum should be doubled. If, however, no claims were entered in the accounts because they had been paid, should not the estimate of the value of the account-books themselves only be considered? For what other interest could the owner have in them? It may be held that, because sometimes debtors desire the accounts to be returned to them, as they say that they have paid sums which are not due, it is to the interest of the creditor to hold the accounts, in order that no controversy may arise respecting them. And, generally speaking, it should be said that double the value of the interest involved is asked in cases of this kind. 1Hence, where anyone who has other proofs and bank-registers has had a note stolen from him, it may be asked whether double the amount of the note should be estimated, or whether this should not be done on the ground that he has no interest in it. For what interest can he have when the debt can be proved in some other way; for instance, if it is included in two different accounts. For the creditor is not considered to have lost anything, if there happens to be another evidence of the debt which renders him secure. 2Likewise, when a receipt is stolen, it must also be said that there will be ground for an action of theft to the extent of the owner’s interest. It seems to me, however, that he has no interest in it, if other evidence exists to show that the money has been paid. 3If, however, the offender did not remove documents of this kind, but erased portions of them, there will not only be ground for an action of theft, but also for procedure under the Aquilian Law, for anyone who has defaced property is held to have “broken it.”

Ulpianus, On Sabinus, Book XLI. Moreover, an action for the production of the property can be brought, as well as an interdict for the possession of the same.

The Same, On Sabinus, Book XLI. Where, however, anyone defaces a picture or a book, he will be liable to an action for wrongful damage, just as if he had destroyed the article. 1If anyone steals, or makes erasures in the registers of the acts of the Republic, or of any municipality, Labeo asserts that he will be liable for an action of theft. He says the same thing with reference to other public property, or that belonging to associations.

Ulpianus, On Sabinus, Book XLI. A guardian, while entitled to the administration of the affairs of his ward, has no power to appropriate his property. Therefore, if he removes anything belonging to the latter with the intention of stealing it, he commits a theft, and the property cannot be acquired by usucaption; but he will be liable to an action for theft, although one on guardianship can also be brought against him. What has been said with reference to a guardian also applies to the curator of a minor, as well as to other curators.

Ulpianus, On Sabinus, Book XLI. Anyone who persuades a slave to take to flight is not a thief; for he who gives another bad advice does not commit theft, any more than if he persuaded him to throw himself down from some height, or to lay violent hands upon himself; for things of this kind do not admit of an action of theft. If, however, he should persuade him to run away in order that he may be stolen by someone else, he will be liable for theft, because the crime was committed with his assistance and advice. Pomponius goes still further, and says that the person who persuades him, even though in the meantime he is not liable for theft, he, nevertheless, begins to be liable at the time that anyone steals the fugitive slave, as the theft is considered to have been committed with his assistance and advice. 1It has also been decided that anyone who assists his son, or a slave, or his wife, to commit a theft, is liable for theft; although they themselves cannot have an action of theft brought against them. 2Pomponius also says that when a fugitive slave takes property with him, he who has induced him to do so can have an action for theft brought against him, on account of the stolen property; because he contributed his assistance and advice to the thief. This also is stated by Sabinus. 3If two slaves take the advice of one another, and both run away at the same time, one is not the thief of the other. But what if they should conceal one another? It may happen that they are both thieves of one another. It can also be said that one is the thief of the other, for, where other persons steal each of them, they will be liable as having given mutual assistance; just as Sabinus has stated that they are also liable for stealing the property which they have carried away.

Ulpianus, On Sabinus, Book XLI. It is true that if anyone has carried away a female slave, who is a harlot, and belongs to another, or has concealed her, this will not be a theft; for not the act, but the motive for committing it should be considered. The motive for committing this act was lust, ancl not theft. Therefore, even a person who has broken down the door of a harlot for the purpose of having intercourse with her will not be liable for theft, where thieves were not introduced by him; even though having entered, they may have carried away the woman’s property. But is anyone who has concealed a female slave for the purpose of enjoying her liable under the Favian Law? I do not think that he is, and an instance of this kind having been presented to me, I gave this opinion: for the person who stole the woman commits a more dishonorable act, and he pays for its disgrace, but he certainly is not a thief.

Ulpianus, On Sabinus, Book XLI. When anyone, while in the hands of the enemy, has something stolen from him, and returns by the right of postliminium, it may be said that he is entitled to an action for theft. 1It is certain that an arrogator can bring an action for theft, even if the property has been stolen from the person whom he arrogated before this was done. If the theft was committed afterwards, there is no doubt that he can bring the action. 2The action for theft is not extinguished as long as the thief lives, whether he who perpetrates the offence is his own master when an action is brought against him, or whether he is under the control of another, and the action for theft is brought against the person to whose authority he is subjected; and this is the reason that it is said that the crime follows the person. 3If anyone, after having committed damage, should become the slave of the enemy, let us see whether the action will be extinguished. Pomponius says that it will be extinguished, and if the captive returns by the law of postliminium, or by any other right whatsoever, the action will be revived; and this is our practice.

Ulpianus, On Sabinus, Book XLI. Where a false creditor (that is to say, one who pretends to be a creditor) receives anything, he commits a theft, and the money paid does not become his property. 1Ad Dig. 47,2,43,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 155, Note 7; Bd. II, § 427, Note 4.A false agent is also considered to commit a theft. Neratius, however, says that it should be considered whether this opinion, which is susceptible of different constructions, is correct. For when a debtor pays an agent money with the intention that it shall be delivered to his creditor, and the agent appropriates it, the above-mentioned opinion is correct, as the money continues to belong to the debtor when the agent did not receive it in the name of him to whom the debtor desired it to be paid, and by retaining it without the consent of his principal, he undoubtedly commits a theft. If, however, the debtor should pay the money in order that it may become the property of the agent, Neratius says that the latter by no means commits a theft, as he receives the money with the consent of his principal. 2Where anyone receives something which is not due, and delegates another to whom payment should be made, an action for theft will not lie; provided payment is made during the absence of the person above mentioned. If, however, he is present, the case is different, and he commits a theft. 3If someone has not made a false statement with reference to himself personally, but is guilty of fraud in his assertions, he is rather deceitful than guilty of theft; for example, if he says he is rich, and will invest what he has received in merchandise; that he will give solvent sureties; or that he will immediately make payment; for in all these instances, he is rather guilty of deception than of theft, and therefore he will not be liable for theft; but because he has committed fraud, if no other action can be brought against him, one for fraud will lie. 4Where anyone, with the intention of stealing it, removes the property of another, which he had left lying exposed, he will be liable for theft, whether he knew or did not know to whom the property belonged; for it does not diminish the guilt of theft for a person to be ignorant who was the owner of the property. 5If the owner has abandoned the property, I do not steal it, even if I have the intention of doing so; for a theft is not perpetrated unless there is someone from whom the article may be stolen. However, in the case where it is not stolen from anyone, the opinion of Sabinus and Cassius, who held that property immediately ceases to be ours as soon as we abandon it, has been adopted. 6If the property has, in fact, not been abandoned, but he who takes it thinks that it has, he will not be liable for theft. 7If the property has not been abandoned, and he does not think so, but takes it lying as it were exposed, not to profit by it, but to return it to the person to whom it belongs, he will not be liable for theft. 8Therefore, if he did not know to whom it belonged, and, nevertheless, took it in order to return it to anyone who claimed it, or could prove that the property was his, let us see whether he will be liable for theft. I do not think that he will, for most persons do this with the intention of putting up a notice announcing that they have found the property, and will return it to him who claims it. Such persons show that they have not the intention of stealing. 9What should be done if he demands a reward for finding the property? This is not considered to constitute a theft, although it is not very honorable for him to demand anything. 10Where anyone voluntarily throws something away, or has thrown it away, but not with the intention of considering it abandoned, and you remove it, Celsus, in the Twelfth Book of the Digest, asks whether you are guilty of theft. And he says that if you thought that the article was abandoned, you will not be liable, but if you did not think so, a doubt may exist on this point; still he maintains that you will not be liable, because he says the property has not been taken from him who voluntarily threw it away. 11When anyone carries away property which has been thrown overboard from a ship, is he guilty of theft? In this case, the question is whether the property was considered to be abandoned. If he who threw it overboard did so with the intention of abandoning it, which, in general, should be believed, as he knew that it would be lost, he who finds it makes it his own, and is not guilty of theft. When, however, he did not have this intention, but threw it overboard for the purpose of keeping it, if it should be saved, he who finds it can be deprived of it. If the latter was aware of this, and holds the property with the intention of stealing it, he is guilty of theft; but where he retained it with the intention of preserving it for the owner, he will not be liable for theft. If, however, he thought that the property had simply been thrown overboard, he will still not be liable for theft. 12Even if I should acquire only half of the ownership of a slave who had previously stolen something from me, the better opinion is that the right of action will be extinguished, when I have only obtained the ownership of half of said slave; because, even in the beginning, a person who had a half ownership in a slave could not bring an action for theft. It is clear that, if my usufruct in the said slave begins to exist, it must be said that the right of action for theft is not extinguished, because the usufructuary is not the owner.

Ulpianus, On Sabinus, Book XLI. Where a partner steals property owned in common (for a theft of partnership property can be committed), it can be said without any doubt that an action for theft will lie.