Corpus iurisprudentiae Romanae

1 Paulus, On the Edict, Book XXXIX. Labeo says that the word “theft” is derived from the term meaning black, because the offence is committed secretly, and in obscurity, and generally at night; or from the word “fraud,” as Sabinus held; or from the verbs to take, and to carry away; or from the Greek term which designates thieves as fwras. And, indeed, the Greeks themselves derived the word from the verb to carry away. 1Hence the sole intention of committing a theft does not make a thief. 2Thus, anyone who denies that a deposit has been made with him does not immediately become liable to an action for theft, but only when he has hidden the property with the intention of appropriating it. 3A theft is the fraudulent handling of anything with the intention of profiting by it; which applies either to the article itself or to its use or possession, when this is prohibited by natural law.

2 Gaius, On the Edict, Book XIII. There are two kinds of theft: manifest and non-manifest.

3 Ulpianus, On Sabinus, Book XLI. A manifest thief is one whom the Greeks call ep' autofwrw; 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.

4 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.

5 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.

6 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.

7 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.

8 Gaius, On the Provincial Edict, Book XIII. What a non-manifest theft is readily becomes apparent; for what is not manifest for this very reason is non-manifest.

9 Pomponius, On Sabinus, Book VI. A person who can bring an action of theft is not entitled to any further proceeding based on the constant handling of the articles taken by the thief, even to recover any accession which may accrue to the property after it has been stolen. 1If I should bring suit to recover the property from the thief, I will still be entitled to a personal action. It may, however, be said that it is the duty of the judge who has jurisdiction of the case, not to order the restitution of the property, unless the plaintiff dismisses the personal action. If, however, the defendant, after having had judgment rendered against him in the personal action, pays the damages assessed, so that he is absolutely discharged from liability; or (which is the better opinion) if the plaintiff is ready to return the damages, and the slave is not given up to him, the possessor should have judgment rendered against him for the amount sworn to by the other party in court.

10 Ulpianus, On Sabinus, Book XXIX. He who was interested in not having the property stolen is entitled to an action for theft.

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

12 Ulpianus, On Sabinus, Book XXIX. Therefore, a fuller who has received clothing for the purpose of mending and cleaning it has always a right of action, as he is responsible for its safe-keeping. If, however, he is not solvent, the owner of the property can bring suit, for he who has nothing to lose sustains no risk. 1The action of theft is not granted to a possessor in bad faith—although he is interested in not having the property stolen—for the reason that it is at his risk. No one can acquire a right of action based upon dishonesty, and therefore the action of theft is only granted to a bona fide possessor, and not to one who holds the property in bad faith. 2If the stolen article has been given in pledge, we also grant an action for theft to the creditor, although it does not constitute part of his property. Further, not only do we grant the action of theft against a stranger, but also against the owner of the property himself; as Julianus stated. It is established that it also is granted to the owner, and, consequently, he is not liable to the action for theft, but he can bring it. It is granted to both parties, because both are interested; but is the creditor always interested, or is this only the case when the debtor is insolvent? Pomponius thinks that it is always to his interest to have the pledge, which opinion Papinianus adopts in the Twelfth Book of Questions. It is better to say that this appears at all times to be the interest of the creditor; and this was frequently stated by Julianus.

13 Paulus, On Sabinus, Book V. A person to whom property is due under the terms of a stipulation is not entitled to an action for theft if it should be stolen, even though the debtor may be to blame for not having delivered it to him.

14 Ulpianus, On Sabinus, Book XXIX. Where property which has been bought is not delivered to the person who purchased it, Celsus says that he will not be entitled to an action for theft, but that the vendor can bring this action. It will certainly be necessary for him to direct the purchaser to bring the action for theft, as well as the personal action, and the one to recover the property, and if anything is obtained by means of these proceedings, he must deliver it to the purchaser; which opinion is correct, and is accepted by Julianus. It is clear that the risk of the property must be assumed by the purchaser, provided the vendor had charge of it before he delivered it. 1Moreover, the purchaser is not entitled to an action for theft before delivery, and the question has been asked whether the purchaser himself, if he should steal the property, is liable to an action for theft? Julianus, in the Twenty-third Book of the Digest, says that if a purchaser, after having paid the price of the property, steals it, and the vendor has guaranteed its safe-keeping, he will not be liable to an action for theft. It is clear, however, that if he should steal the property before paying the money, he will be liable to an action for theft, just as if he had stolen a pledge. 2Again, tenants on land, although they are not the owners of the property, but because they have an interest in it, can bring an action of theft. 3Let us next examine whether the person with whom the property was deposited is entitled to an action for theft. As he gives a guarantee against fraud, it is held with reason that he is not entitled to an action for theft; for what interest has he if he has not been guilty of fraud? If he has acted fraudulently, the property is at his risk, but he ought not to ask for an action for theft on the ground that he has been guilty of fraud. 4Julianus, in the Twenty-second Book of the Digest, also says that, because it has been settled with reference to all thieves, that they cannot bring an action for theft on account of the property which they themselves have stolen; neither can he, with whom property has been deposited, bring an action for theft, although he has begun to be responsible for the property, if he has handled it with the intention of stealing it. 5Papinianus discusses the point that if I should receive two slaves in pledge for ten aurei, and one of them should be stolen, and the other that was left was not worth less than ten aurei, whether I will only be entitled to an action for theft to the amount of five aurei, for the reason that I am sure of the other five in the person of the remaining slave; or, indeed, because the latter may die, it should be held that I am entitled to an action for ten, even if the remaining slave is of great value. I incline to the latter opinion, for we should not consider the pledge which was not taken, but the one which was stolen. 6He also said that if ten aurei are due me, and a slave given in pledge for them has been stolen, and I have recovered ten aurei by an action for theft, I will not be entitled to another action for theft if the slave should be stolen a second time, because I have ceased to have an interest when I have once obtained that which was due me. This is the case where the theft was committed without any fault of mine, for if I was to blame, as I had an interest because I would be liable in an action on pledge, I can bring the action for theft. If, however, I was not to blame, it appears that there is no doubt that an action will lie in favor of the owner of the property, which will not be granted to the creditor. This opinion Pomponius approves in the Tenth Book on Sabinus. 7The same authorities assert that if two slaves are stolen at the same time, the creditor will be entitled to an action for theft on account of both of them; not for the entire sum, but to the extent of his interest estimated by dividing the amount which is due to him with reference to each of the slaves. If, however, the two slaves should be stolen separately, and the creditor has collected the entire amount on account of one of them, he can recover nothing on account of the other. 8Pomponius, in the Tenth Book on Sabinus, also says that if he to whom I have lent something for use, commits fraud with reference to the property loaned, he cannot bring the action for theft. 9Pomponius holds the same opinion with reference to a person who, by the direction of someone, has received the property for transportation. 10The question arises whether a father is entitled to an action for theft when property has been lent for use to his son. Julianus says that a father cannot bring the action under these circumstances, because he should not be responsible for the safe-keeping of the property; just as he says that anyone who becomes surety for someone to whom property is loaned for use is not entitled to an action for theft. For he holds that not everyone, without distinction, to whose interest it is that the property should not be lost, is entitled to an action for theft; but only he who is liable because it was his fault that the same property has been destroyed. Celsus, also, approves this opinion in the Twelfth Book of the Digest. 11Is a man who has acquired a slave by a precarious tenure entitled to an action for theft if the slave is stolen, is a question which may be asked. And, as a civil suit cannot be brought against him, because property held by a precarious tenure resembles a donation, and therefore an interdict appears to be necessary, he will have no right to an action for theft. I think, after an interdict has been granted, it is clear that he ought to offer a guarantee against negligence, and hence he can bring an action for theft. 12Where anyone has leased property, he will be entitled to an action for theft, provided it was stolen through his negligence. 13Where a son under paternal control is stolen, it is evident that his father can bring an action for theft. 14If property should be loaned for use, and he to whom it was loaned should die, although theft cannot be committed against an estate, and therefore the heir of the person to whom the article was lent cannot institute proceedings, still, the lender can bring the action for theft. The same rule applies to property which has been pledged or hired, for although the action for theft is not acquired by an estate, still it is acquired by the parties interested in the same. 15The action for theft not only lies in favor of him to whom the property was lent, on account of said property, but also on account of anything connected with it, because he was responsible for its safe-keeping. For if I lend you a slave for use, you can bring an action for stealing his clothing, although I did not lend you the garments which he wore. Likewise, if I lend you beasts of burden, and a colt is following one of them, I think that an action for theft will lie for stealing the colt, although it was not included in the loan. 16The question arose, what then is the nature of the action for theft which is granted to the person to whom property was lent for use? I think that actions for theft will lie in favor of all those who are responsible for the property of others, whether it is lent for use, leased, or pledged, provided it is stolen; but a personal action will only lie in favor of him who is the owner. 17If a letter which I have sent to you should be intercepted, who will have a right to bring the action for theft? And, in the first place, it must be ascertained to whom the letter belonged, whether to the person who sent it, or to him to whom it was despatched. If I gave it to a slave of him to whom it was sent, it was immediately acquired by the latter. If I gave it to his agent, this is also the case, because, as possession can be acquired by means of a free person, the letter immediately became his property; and this is especially true if he was interested in having it. If, however, I sent a letter which was to be returned to me, it will remain mine, because I was unwilling to relinquish or transfer the ownership of it. Who then can bring the action for theft? He can do so who is interested in not having the letter stolen, that is to say, the individual who was benefited by what it contained. Therefore, it may be asked whether he, also, can bring the action for theft to whom the letter was given in order to be conveyed to its destination. He can do so if he was responsible for the safe-keeping of the letter, and if it was to his interest to deliver it he will be entitled to an action for theft. Suppose that the letter stated that something should be delivered to him, or done for him; he can then bring an action for theft, if he assumed responsibility for its delivery, or received a reward for carrying it. In this instance, he resembles an inn-keeper, or the master of a ship; for we grant them an action for theft, if they are solvent, as they are responsible for property.

15 Paulus, On Sabinus, Book V. A creditor, whose pledge has been stolen, has an interest not merely to the extent of his claim, but he can bring an action of theft for the entire value of the property stolen, but he must return to the debtor all in excess of his debt which can be recovered in an action on pledge. 1The owner of the property who has stolen something of which another enjoys the usufruct is liable to the usufructuary in an action for theft. 2If anyone who has lent you an article for use should steal it; Pomponius says that he will not be liable in an action for theft, as you have no interest in the matter, for an action based on the loan of the property cannot be brought against you; hence, if you have retained the article on account of some expense which you have incurred with reference to it, you will be entitled to an action for theft, even against the owner himself, if he should steal it, because, in this instance, the property takes the place of a pledge.

16 The Same, On Sabinus, Book VII. It is not a rule of law that a father cannot bring an action for theft against his son, who is under his control, but it presents an obstacle from the nature of the case; because we cannot bring suit against those who are under your control, any more than they can bring suit against us.

17 Ulpianus, On Sabinus, Book XXXIX. Our slaves and our children can, indeed, steal from us, but they will not be liable to an action for theft; as he who can decide the case of a thief has no need to bring suit against him. Therefore, no action was granted to him by the ancient legislators. 1Hence the question arose, if a slave was either alienated or manumitted, whether he would be liable to an action for theft. It was decided that he is not liable, for a cause of action which does not exist in the beginning cannot afterwards arise against a thief of this kind. It is, however, clear that if, after having been manumitted, he should appropriate any property, he can be said to be liable to such an action, because he then commits a veritable theft. 2When, however, a slave whom I purchased, and who was delivered to me, is returned to me under a conditional clause of the sale, he should not be considered as ever having belonged to me, but he has been mine, and has ceased to be such. Therefore Sabinus says that, if he commits a theft, his position is such that the person who returned him will not be entitled to an action for theft. But although he cannot bring such an action, still, when he is sent back, the value of the property stolen should be estimated and included in the action for his return. 3If a fugitive slave should steal from his master, the question was asked whether the latter could also bring an action against the person who had bona fide possession of him before he was restored to the power of his master. This point gives rise to some difficulty; for although I may be considered to have had possession of the slave during the time in which he was a fugitive, still I will not be liable to an action for theft, as he was not under my control. For Julianus says that when I seemed to possess him, this was of no advantage except to enable me to acquire him by usucaption. Therefore Pomponius, in the Seventeenth Book on Sabinus, says that the action for theft will lie in favor of the owner whose slave was in flight.

18 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.

19 Ulpianus, On Sabinus, Book XL. In an action for theft, it is sufficient for the property to be described in such a way that it can be understood what it is. 1It is not necessary to mention the weight of vessels, therefore it will be sufficient to say a dish, a plate, or a bowl. The material of which the article is composed must, however, be stated; that is, whether it is of silver, or gold, or anything else. 2Where anyone brings suit for unmanufactured silver, he should say an ingot of silver, and give its weight. 3The number of coins which have been stolen from the owner must be included, for instance, so many aurei, or more. 4The question arises whether the color of a garment should be mentioned. It is true that this should be done, for, just as where a theft of plate is involved, a golden bowl is mentioned, so, where a garment is concerned, the color should be stated. It is clear that if anyone should swear that he cannot positively designate the color, the necessity of the case should excuse him. 5Where anyone gives property in pledge, and then steals it, he will be liable in an action for theft. 6The owner is not only considered as guilty of the theft of property which has been pledged, when he takes it from the creditor who possesses or holds it, but also if he should remove it at a time when he did not possess it; for instance, if he should sell the article which had been pledged; for it is settled that, under such circumstances, he commits theft. Julianus, also, is of this opinion.

20 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.

21 Ulpianus, On Sabinus, Book XL. The following question frequently arises, namely: where anyone removes a measure of grain from a heap, whether he steals the whole of it or only the amount which he appropriates. Ofilius thinks that he steals the entire heap, for Trebatius says that a person who touches the ear of anyone is considered to have touched him all over; hence, if anyone opens a cask, and takes out a little wine, he is understood to have stolen not merely what he removed, but all of it. It is, however, true that, under these circumstances, he is only liable in an action for theft for the amount which he carried away. For if anyone opens a closet, which he cannot remove, puts aside everything it contains, and then departs; and afterwards, having returned, removes one of the articles, and is caught before he reaches his destination, he will be guilty of both manifest and a non-manifest theft of the same property. For he who, in the daytime, cuts down growing grain, and puts it aside with the intention of removing it, is both a manifest and a non-manifest thief, so far as what he has cut is concerned. 1If anyone, who has deposited a bag of twenty sesterces, should receive another bag in which he knows there are thirty, through the mistake of the person who gave it to him, who thought that his twenty were contained therein, it is decided that he will be liable for the theft of ten sesterces. 2Where anyone steals brass, when he thinks he is stealing gold, or vice versa, or he thinks that the value of the article is less, when it is more, he commits a theft of what he removed, according to the Eighth Book of Pomponius on Sabinus. Ulpianus is of the same opinion. 3If, however, anyone steals two bags, one of ten, and the other of twenty aurei, one of which he thought belonged to him, and the other he knew to belong to someone else, we say that he only steals the bag which he believed belonged to another, just as if he should steal two cups, one of which he thought was his own, and the other he knew belonged to someone else, for he only steals one of them. 4But where he thinks that the handle of a cup belongs to him, and it actually is his, Pomponius says that he is guilty of stealing the entire cup. 5If, however, anyone should steal the sixth part of a measure of wheat from a loaded ship, does he commit a theft of the entire load, or only of the sixth part of the measure of wheat? This question is more applicable to a granary, which is full, and it is very severe to hold that a theft of all of it is committed. And what would be the rule in the case of a reservoir of wine, or a cistern of water, or what in that of a ship loaded with wine, as there are many of these in which wine is poured? And what shall we say of him who has drunk of the wine; is he to be considered to have stolen all of it? The better opinion is that we should say that he has not stolen it all. 6If you suppose two jars of wine to be placed in a warehouse, and that one of them is stolen, the theft has reference to that one, and not to the entire warehouse; just as where one of several portable articles in a granary is removed. 7A person who enters a room with the intention of committing a theft is not a thief, although he may have entered for that purpose. What, then, is the rule? To what action will he be liable? He can be accused of committing damage or violence, if he entered by force. 8Likewise, if he opened or broke anything of great weight, which he was not able to remove, an action for theft for the entire amount cannot be brought against him, but only for what he took away, because he was unable to take it all. Hence, if he removed a cover which he could not take away, in order to obtain access to certain articles, and then appropriated some of them, although he may have been able to remove the objects therein contained separately, but could not take the entire contents together; he is only considered to have stolen the thing which he removed, and not the others. If he was able to remove the entire receptacle, we say that he steals the whole of it, although he may have detached the cover in order to take some, or a certain number of the articles therein contained. This was also the opinion of Sabinus. 9If two or more persons should steal a beam, which any one of them alone is unable to lift, it must be said that all of them are guilty of stealing it, although none of them singly could have handled or removed it, and this is our practice. For it cannot be held that each one committed a theft proportionally, but that all of them stole the whole of it. Hence it results that each of them will be liable for theft. 10And although a person may be liable in an action of theft for property which he did not remove, still, a personal action cannot be brought against him, because such a proceeding will not lie to recover property which has been carried away. This was also the opinion of Pomponius.

22 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.

23 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.

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

25 Ulpianus, On Sabinus, Book XLI. The rule adopted by most authorities, that the theft of a tract of land cannot be committed, is true. 1Hence, 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.

26 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. 1It 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.

27 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.“

28 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.

29 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.

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

31 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.

32 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.

33 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.

34 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.

35 Pomponius, On Sabinus, Book XIX. If anyone should receive an article for the purpose of transporting it, knowing it to have been stolen, it is established that if he is arrested with it in his possession, he alone is the manifest thief, but if he was not aware that it had been stolen, neither of the parties is a manifest thief; the latter because he is not a thief, and the thief himself, because he was not arrested with the goods in his possession. 1If one of your slaves has drunk and carried away wine, and another has been caught drinking the wine, you will hold the former liable for non-manifest theft, and the latter for manifest theft.

36 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.

37 Pomponius, On Sabinus, Book XIX. If you follow a tame peacock which has escaped from my house until he is lost, I can bring an action for theft against you, as soon as anyone seizes it.

38 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.

39 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.

40 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.

41 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.

42 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.

43 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. 1A 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.

44 Pomponius, On Sabinus, Book XIX. If, by order of a debtor, a false agent should receive money from another, a debtor of the said debtor, he will be liable to the debtor for theft, and the money will belong to the latter. 1If I deliver my property to you as yours, and you know that it is mine, the better opinion is to hold that you are guilty of theft, if you did this with the intention of profiting by it. 2If a slave belonging to an estate which has not yet been accepted, steals something from the heir, and is manumitted by the will of his master, an action for theft will lie against him, because the heir was at no time his master.

45 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.

46 The Same, On Sabinus, Book XLII. It has been decided by all authorities that an action for theft can be brought against the thief, even if the stolen property has been destroyed. Hence, after the death of a slave whom someone has stolen, the right of action for theft remains unimpaired. Nor does manumission extinguish this right, for manumission is not unlike death as it appears to remove the slave from the power of his master. Therefore, no matter in what way the slave may be removed from the control of his master, the action for theft can still be brought against the thief; and this is our practice. This action lies, not because the slave is now separated from his master, but because he is separated from him for the benefit of the thief. This rule has also been adopted with reference to a personal action for recovery of the property; for it can be brought against a thief, even if the property has been, for some reason or other, destroyed. This must also be said where the property has fallen into the hands of the enemy, for it is established that an action for theft can be brought on account of it. If, however, after having been considered abandoned, it should be recovered by the owner, he can still bring an action for theft. 1If a slave subject to an usufruct is stolen, both the usufructuary and the owner are entitled to an action for theft. The action is, therefore, divided between the owner and the usufructuary, and the usufructuary brings suit for the profits, or for the amount of the interest which he had in not having a theft committed, that is to say, for double damages; and the owner brings an action for the interest he had in not being deprived of his property. 2When we say double damages, we must understand this to mean that an action for quadruple damages will lie, if the theft is manifest. 3This action may lie in favor of a person who is only entitled to the use of said slave. 4If anyone should suppose that this slave has also been given in pledge, the result will be that he, likewise, who received him by way of pledge, will be entitled to the action for theft. Moreover, if the slave is worth more than the amount due under the pledge, even the debtor can bring the action for theft. 5The actions which lie in favor of these persons are so different in their nature that if anyone of them has released the thief from responsibility for damages, it must be said that he has lost the right of action only for himself, but that it continues to exist so far as the others are concerned. For if you suppose that a slave owned in common has been stolen, and one of his masters releases the thief from liability for damages, the other, who did not do so, will be entitled to an action for theft. 6The owner can also bring the action for theft against the usufructuary, if he has done anything for the purpose of concealing the property, or appropriating it. 7It has been very properly held that he who thinks he has obtained possession of property with the consent of the owner is not a thief. For how can he be guilty of fraud who thinks that the owner will give his consent, whether his opinion is false or true? Therefore, he alone is a thief who takes something against the will of the owner and knows that he does so. 8On the other hand, if I think that I am doing something against the will of the owner, and the latter should actually be willing, the question is asked whether there will be ground for an action for theft. Pomponius says that I commit a theft. However, it is true that if I am willing for him to make use of the property, although he may not be aware of the fact, he will not be guilty of theft. 9If the stolen property should be restored to the owner, and is taken a second time, another action for theft will lie.

47 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.

48 Ulpianus, On Sabinus, Book XLII. A certain man lost a silver vase, and brought an action for theft, and when a dispute arose as to the weight of the vase, and the plaintiff declared that it was greater than it really was, the thief produced the vase. He to whom it belonged took it away from the thief, and the latter, nevertheless, had judgment rendered against him for double damages, which was an exceedingly proper decision. For in the penal action not merely the property itself which was stolen is included, whether the action for manifest theft, or that for non-manifest theft is brought. 1Anyone who knows a thief is not one himself, whether he points him out or does not do so, as a great difference exists between concealing a thief and not pointing him out. He who knows him is not liable for theft, but he who conceals him is responsible for doing so. 2He who takes a slave with the consent of his master is neither a thief nor a kidnapper, as is perfectly evident. For who that acts in accordance with the will of the owner of the property can be called a thief? 3If the master has forbidden it, and he takes the slave away, but not with the intention of concealing him, he is not a thief; if he conceals him, he then begins to be a thief. Therefore, anyone who takes a slave away, but does not conceal him, is not a thief, even if he does this against the will of the master. We understand, however, that the master forbids this being done, even when he is not aware of the fact, that is to say, when he does not consent. 4If I give you a garment to be cleaned for a compensation, and you, without my knowledge or consent, lend it to Titius, and Titius steals it, an action for theft will also lie in your favor, because you are responsible for the safe-keeping of the property; and I will be entitled to an action against you, because you ought not to have lent it, and by doing so, you have committed a theft. This is an instance in which a thief can bring an action for theft. 5Where a female slave, who is pregnant, is stolen or conceives while in the hands of the thief, her child will be stolen property; whether it is born while she is under the control of the thief, or while she is in the hands of a bona fide possessor. In the latter case, however, the action for theft will not lie. But if she conceives while in the hands of a bona fide possessor, and has a child while there, the result will be that the child will not be stolen property, but that it can even be obtained by usucaption. The same rule should be observed with reference to cattle and their offspring, as in the case of a child of a female slave. 6Colts born to stolen mares immediately belong to a bona fide purchaser, and this is reasonable, because they are included in the profits, but the child of the female slave is not included therein. 7A thief sold stolen property, and the owner of the same extorted the money paid for it from the thief. The opinion was properly given that he had committed a theft of the money, and he will even be liable to the action for property taken by violence; for no one has any doubt that what has been acquired in exchange for stolen property is not itself stolen. Therefore, money obtained as the price of stolen property is not stolen.

49 Gaius, On the Provincial Edict, Book X. It sometimes happens that he who has an interest in having the property preserved is not entitled to the action for theft. For instance, a creditor cannot bring suit for the theft of property belonging to his debtor, although the latter, otherwise, may not be able to pay what he has borrowed. We speak, however, of property which has not been given in pledge. 1Likewise, a wife cannot bring an action for theft with reference to dotal property, which is at her risk; but her husband can do so.

50 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.

51 Gaius, On the Provincial Edict, Book XIII. For if the cattle should precipitate themselves from some elevation, an equitable action for wrongful damage will be granted as under the Aquilian Law.

52 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. 14Where 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.

53 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.

54 Paulus, On the Edict, Book XXXIX. He who breaks a door for the purpose of causing injury (although property may be taken away by others as the result of this), will not be guilty of theft, for the wish and intention of the culprit make a distinction in the case of crime. 1If a slave of the lender of an article for use steals it, and he from whom it was taken is solvent, Sabinus says that an action on loan can be brought against him, as well as one against the master on account of the theft committed by the slave. Where, however, the master has the money which he collected, the right of action for theft will be extinguished. The same rule applies where the action on loan is dismissed. 2If your slave steals property which has been lent to you for use, an action for theft will not lie against you, but only one on loan, because the property was at your risk. 3Anyone who volunteers to transact the business of others is not entitled to the action for theft, although the property may have been lost by his fault; but judgment can be rendered against him in a suit based on voluntary agency, if the owner transfers to him his right of action. The same rule applies to one who administers affairs in the place of a guardian, as well as to a guardian who is bound to observe diligence; as, for example, where several testamentary guardians have been appointed, and one of them alone, after having given security, undertakes the administration of the trust. 4If you hold my property through the donation of another, and I steal it, Julianus says that you can only bring the action for theft against me, if it was to your interest to retain possession; for instance, if you have defended a slave who was given in a noxal action, or if you have taken care of him when he was ill, you will have a just cause to retain him against the person demanding him.

55 Gaius, On the Provincial Edict, Book XIII. If a creditor makes use of a pledge he is liable for theft. 1The opinion has been given that a person who has received something for his own use, and lends it to another, is guilty of theft. Hence, it is sufficiently apparent that a theft is committed, even if anyone uses the property of another for his own advantage, and it makes no difference for it to be said that he does not act with this end in view. For it is one kind of pecuniary profit to give away someone else’s property; and another to acquire for ourselves an obligation on account of the resulting benefit. Hence he is guilty of theft who secretly removes an article for the purpose of giving it to another. 2The Law of the Twelve Tables does not permit a thief, who is caught stealing by day, to be killed, unless he defends himself with a weapon. By the term “weapon” is meant a sword, a club, a stone, and finally everything which can be used for the purpose of inflicting injury. 3As the action for theft has reference to the pursuit of the penalty, while the personal action and that for the recovery of the property are employed for the latter purpose, it is evident that if the property is recovered, the right of action for theft will remain unimpaired, but that those of the other two actions will be extinguished; as, on the other hand, after the penalty of double or quadruple damages have been paid, the right to bring suit for the recovery of the property, and that of the personal action, will remain unimpaired. 4Anyone who knowingly lends tools to break open a door or a closet, or knowingly lends a ladder for the purpose of climbing, even though, in the beginning, he gave no advice for the commission of a theft, will still be liable to an action for theft. 5If a guardian who administers the affairs of his trust, or a curator, makes a compromise with a thief, the right of action for theft is extinguished.

56 Ulpianus, Disputations, Book III. When a creditor carries away property which has been pledged to him, he is not considered to handle it for the purpose of stealing it, but to take charge of his own pledge.

57 Julianus, Digest, Book XXII. Under certain circumstances, a thief, even while the obligation of his penalty remains, again becomes liable, and can be sued several times for the theft of the same property. The first instance which occurs is when the right to possession is changed; for example, where the property again comes into the hands of the owner, and the same person steals it either from the same owner, or from him to whom he lent, or sold it. If, however, the owner is changed, he will be liable to a second penalty. 1Anyone who brings a thief before the Prefect of the Night Watch or the Governor of a Province is understood to have chosen a way by which to recover his property. If the matter is terminated there, and, by the conviction of the thief, the stolen money is recovered, the question of theft appears to be reduced to simple damages; especially if the thief was directed not only to return the stolen property, but the judge ordered something else to be done, in addition. Where, however, he was ordered to do nothing more than return the stolen property, and the judge did not render a decision for anything else against him, for the reason that the thief incurred the danger of a greater penalty, it should be understood that the question of theft has been disposed of. 2If property forming part of a peculium, after having been stolen, again comes into the possession of the slave, the defect attaching to the theft is removed, and the property in this case begins to belong to the peculium, and to be possessed by the slave. 3When, however, a slave secretly removes property belonging to his peculium, with the intention of stealing it, so long as he retains it his condition is not changed, for his master is not deprived of anything. If, however, he delivers it to another, he commits a theft. 4A person who administers a guardianship has a right to compromise with a thief, and if he remains in control of the stolen property, it ceases to be such, because the guardian occupies the place of the owner. The same thing must be said with reference to the curator of an insane person; as he occupies the place of the owner to such an extent that, even by delivering property belonging to the insane person, he is considered to alienate it. The guardian and the curator of an insane person, however, can, in their own names, bring suit for the recovery of the stolen property. 5If two of your slaves steal clothing and silver plate, and, on account of one of the slaves, an action is brought against you to recover the stolen clothing, and then, on account of the other, suit is brought against you for the recovery of the silver plate, an exception should not be granted against you, because an action has already been brought to recover the stolen clothing.

58 Alfenus, Epitomes of the Digest of Paulus, Book IV. If anyone makes an excavation for the purpose of taking out chalk, and removes it, he is a thief, not because he dug out the chalk, but because he took it away.

59 Julianus, On Urseius Ferox, Book IV. If property should be stolen from a son under paternal control, he can properly bring an action for this cause after he becomes the head of a household. Where property which has been leased to him has been stolen, he can also bring an action on this account, after he becomes independent.

60 The Same, On Minicius, Book III. When anyone who has lent an article for use steals it, an action for theft cannot be brought against him, because he only took what was his, and the other party to the transaction will be released from any liability growing out of the loan. This, however, should only pe considered to refer to cases where he to whom the article was lent had no reason for retaining it. For if he had incurred any necessary expense on account of the article lent, it is rather to his interest to retain it than to bring an action based on the loan, and therefore he will be entitled to an action for theft.

61 Africanus, Questions, Book VII. A female fugitive slave is understood, to a certain extent, to steal herself, and also by taking her child with her she commits a theft.

62 The Same, Questions, Book VIII. When a slave owned in common steals something from one of his masters, it is established that an action in partition should be brought; and it is in the discretion of the judge to order that the other master make good the damage, or assign his share of the slave. The result of this appears to be that, even if he has alienated his share, an action can also be brought against the purchaser, as, in some respects, a noxal action follows the person. This rule, however, should not be pushed to the extent of holding that even if the slave should become free he can bring suit against him; just as an action could not be brought if he belonged entirely to the other master. Therefore, it is evident from this, that if the slave should die, there is nothing which the plaintiff can recover on this ground, unless the other joint-owner has obtained some benefit from the stolen property. 1He says that another result of this is, that if a slave, whom you have given to me in pledge, steals something from me, by bringing the contrary action of pledge I can compel you to make good the damage, or to surrender the slave to me by way of reparation. 2The same must be said with respect to a slave who it was agreed might be returned under certain circumstances, so that even the purchaser will be required to restore all accessions and profits; and, on the other hand, the vendor will be obliged to either make good the damage, or to surrender the slave by way of reparation for the injury sustained, unless an action for a larger amount can be brought. 3Where a man knowingly gives a thief in pledge to one who is ignorant of the fact, he can be compelled to make good all damages; for this is in conformity with good faith. 4In the action on purchase, however, what kind of a slave the vendor represented him to be must, by all means, be taken into consideration. 5But, with reference to what concerns the action on mandate, he says that he doubts whether it should also be held that all damages should be made good. And, indeed, this principle should be observed even more than in the preceding cases; so that if he who gave the order for the purchase of a certain slave did not know that he was a thief, he will, nevertheless, be compelled to make good all damages sustained; for it will be perfectly just for the agent to allege that he would not have suffered the damage if he had not received the order. This is still more evident in the case of a deposit, for although otherwise it would appear equitable that no more damage should be sustained by anyone than the slave himself is worth, it is much more equitable that the duty performed by one person to another for his benefit, and not for that of him who undertook it, should not injure the latter. And, as in the previously mentioned contracts of sale, lease and pledge, it was stated that the person who knowingly kept silent should be punished, so in these contracts, the negligence of those for whose benefit they are entered into, should only be injurious to themselves. For it is certainly the fault of the mandator who directed the other party to purchase such-and-such a slave for himself, and it is also the fault of him who deposited the property that they were not more diligent in giving warning as to the character of the slave who was deposited. 6With reference to a loan for use there is, however, reason for holding a different opinion, since only the convenience of him who requested the use of the property is concerned. Therefore, he who has made a loan for use, as in a lease, cannot lose anything beyond the value of the slave, if he is not guilty of fraud. Moreover, in this instance we ought to be a little more indulgent in the interpretation of fraud, because (as has already been stated) the person who lends the property does not profit by doing so. 7I think that this is true if no blame attaches to him who undertook to execute the mandate, or to take charge of the deposit, where the owner himself gave him any silver plate or a sum of money for safe-keeping; but on the other hand, where the owner did not do anything of this kind, a different opinion should be adopted. 8I leased you a tract of land, and (as is customary) it was agreed that I should be entitled to the crops by way of pledge for the rent. He says that if you should secretly remove them, an action for theft can be brought against you. But if you should sell the crops to someone else before they have been gathered, and the purchaser removes them, the result will be that we must hold that they have been stolen; for as long as they are attached to the soil they constitute a part of the land, and therefore belong to the tenant, for the reason that he is considered to gather them with the consent of the owner; which certainly cannot properly be said in the present instance. For how can they become the property of the tenant, when the purchaser gathers them in his own name? 9A slave who was ordered to be free under the condition of paying ten aurei was defended by the heir in a noxal action. While the case was still pending, the slave, having paid the ten aurei to the heir, obtained his freedom. The question arose whether he should be discharged unless he gave to the plaintiff the ten aurei which the heir had received. It was held that the source from which the money had been obtained should be taken into consideration. If it came from somewhere else than the peculium, the heir should pay it; because, if the slave had not yet gained his freedom, and had been surrendered by way of reparation, he would have paid the money to the person to whom he was delivered. If, however, the money was derived from his peculium, for the reason that he paid to the heir what the latter ought not to have permitted him to give him, a contrary decision should be rendered.

63 Marcianus, Rules, Book IV. He who shows the way to a fugitive slave does not commit a theft.

64 Macer, Public Prosecutions, Book II. The Governor of a province cannot prevent anyone who has been convicted of theft from being branded with infamy.

65 Neratius, Parchments, Book I. Titius, an heir, having been charged with the legacy of a slave to Seius, the said slave committed a theft against Titius, before the estate was entered upon. If, after it had been entered upon, Seius should wish to have the legacy, Titius could bring an action for theft against him, on account of the act of the slave, because when the latter committed the crime, he did not belong to Titius; and even though anyone should hold that if the slave had begun to belong to him against whom he committed the theft, the right of action for theft would be extinguished, so that even if he was alienated, suit could not be brought on this ground. The slave did not become the property of Titius until after the estate had been entered upon, because legacies pass directly from the person who leaves them to him to whom they are bequeathed.

66 Ulpianus, On the Edict of the Curule Ædiles, Book I. He who has appropriated property belonging to another with the intention of profiting by it, even though, having changed his mind, he may afterwards restore it to the owner, is a thief; for no one by repentance ceases to be responsible for such a crime.

67 Paulus, On Plautius, Book VII. Where anyone who has given an article in pledge sells it, although he is the owner, he commits a theft, whether he delivered it to the creditor or merely bound himself by a special agreement. Julianus holds the same opinion. 1If anyone from whom property has been stolen should bequeath it to me, while it is in the hands of the thief, and the latter should afterwards appropriate it, will I be entitled to an action for theft? According to the opinion of Octavenus, such an action will only lie in my favor when the heir is not entitled to one in his name; because it is established that, no matter in what way the ownership of property may be changed, the owner will be entitled to bring the action for theft. 2The ancient authorities gave it as their opinion that where anyone brings a muleteer into court for fraud, and his mules die in the meantime, he will be liable to theft. 3Julianus says that where a slave is appointed for the collection of money, and collects it after he has been manumitted, he will be liable for theft. The same rule applies to the case of a guardian to whom money is paid after puberty. 4If you have recommended Titius to me as being solvent, and as being one to whom I can lend money, and I make inquiries about him, and you afterwards introduce to me someone else as Titius, you will be guilty of theft; because I believe that he is Titius, and by all means if he who was brought to me knew of the fraud. If you were not aware of it, you will not be guilty of theft, and he who introduced him does not appear to have given his assistance, as no theft was committed; but an action in factum will be granted against the person who brought him. 5If I stipulate with you not to do anything to prevent the slave Eros from being given to me before such-and-such kalends, although it is to my interest that he should not be stolen, still, if he is stolen, you will not be liable under the stipulation; provided nothing was done by you to prevent him from being given to me, and I will not be entitled to an action for theft.

68 Celsus, Digest, Book XII. No one commits a theft by denying that a deposit has been made with him. For the denial itself does not constitute an offence, although it comes very near doing so. But if the person should acquire possession of the property for the purpose of appropriating it, he perpetrates a theft. It does not make any difference whether the bailor had a ring on his finger, or the box which contained it, if, when it was deposited with the bailee, the latter intended to appropriate it. 1If an article which you have promised to return on a certain day under a penalty is stolen from you, and, for this reason, you are required to bear the loss, this will also be taken into account in bringing the action for theft. 2A stolen child grew up in the hands of the thief. The latter is guilty of stealing the youth as well as the child, and still, there is but one theft; hence he is liable for double damages; an estimate being made of the greatest value that the child had at any time after having been stolen. As the action for theft can only be brought once, what reference does this have to the question above proposed? For, if he had been stolen from the thief, and then recovered by him from the other criminal, even if he had committed two thefts, the action could not be brought against the thief more than once. I do not doubt that the estimate of the value of the youth rather than that of the infant should be made; for what would be so ridiculous as to consider the condition of the thief to be improved on account of the continuation of his crime? 3If the sale of a slave is annulled, the purchaser cannot bring the action of theft against the vendor, because the slave, after his purchase and before he was returned, stole something. 4When a stolen slave commits a theft against the thief himself, it is decided that the thief will be entitled to an action against the owner on this account, for fear that the crimes of such slaves may be committed with impunity to themselves, and be a source of profit to their masters, as the peculium of slaves of this kind is frequently increased by their thefts. 5If a tenant, after the expiration of his lease, remains for more than a year, and gathers the crops without the consent of the owner, let us see whether an action for the theft of the harvest and vintage cannot be brought against him. I do not think that there is any doubt that he is a thief, and if he consumes the stolen property suit can be brought to recover its value.

69 Marcellus, Digest, Book VIII. Julianus denies that theft of property belonging to an estate can be committed, unless the deceased gave it in pledge, or lent it;

70 Scævola, Questions, Book IV. Or where the usufruct belongs to another.

71 Marcellus, Digest, Book VIII. For he held that, in these instances, theft of property belonging to an estate could be committed, and usucaption be interrupted; and therefore that an action for theft would lie in favor of the heir.

72 Javolenus, On Cassius, Book XV. When a person to whom an article has been lent for use steals it, an action for theft as well as one on loan can be brought against him, and if the one for theft should be brought, the right of action on loan will be extinguished; and if the one on loan is brought, an exception can be pleaded in bar of the action for theft. 1Where property is held by anyone in the capacity of heir, the possessor will not be entitled to the action for theft, although he can obtain the property by usucaption; because he who is interested in not having it stolen can bring the action for theft. This, however, seems to be the interest of the person who would suffer the injury, and not of him who would be pecuniarily benefited.

73 Modestinus, Opinions, Book VII. Sempronia drew up a petition intending to give it to a centurion, in order that it might be filed in court; but she did not give it to him. Lucius read it in court as having been given to him officially. As it was not properly filed, or delivered to the centurion, of what offence is he guilty who presumed to read in court a petition stolen from the house of the person who drew it up, and who did not deliver it for that purpose? Modestinus answered that if he who took it did so secretly, he committed a theft.

74 Javolenus, On Cassius, Book XV. If anyone who receives property in pledge should sell it, when no agreement had been made with reference to its sale while pledged, or if he should dispose of it before the day of sale arrives, and the debt is not paid, he renders himself liable for theft.

75 The Same, Epistles, Book IV. I possess, in good faith, a female slave who had been stolen, and whom I purchased for two aurei. Attius stole her from me, and her owner and myself brought suit against him for theft. I ask, what assessment of damages should be made for both parties? The answer was double the amount of his interest for the purchaser, and for the master double the value of the woman. The fact that the penalty for theft is paid to two persons should not cause any difficulty, because although this is done on account of the same property, it is paid to the purchaser by virtue of his possession, and to the owner on the ground of his ownership.

76 Pomponius, On Quintus Mucius, Book XXI. If anyone who represented himself to be an agent should induce me to promise to pay either him or the person to whom he delegated me, I cannot bring an action for theft against him, as there is no object which can be handled with the intention of stealing it.

77 The Same, On Quintus Mucius, Book XXXVIII. He who uses property which has been lent to, or deposited with him, in a different way from that in which he was understood to receive it, not intending to do this against the consent of the owner, is not liable for theft; nor will he, under any circumstances whatsoever, be liable to an action on deposit. Will he be liable to an action on loan? The answer depends upon how far he was to blame; that is to say, whether he had reason to believe that the owner would not have permitted him to make use of the article as he did. 1If anyone commits a theft against another, and a third party steals from him what he himself appropriated, the owner of the property can bring suit against the last thief; but the first thief cannot do so, because the interest of the owner, and not that of the first thief is involved, as the stolen property is safe. This was stated by Quintus Mucius, and is true; for although it is to the interest of the thief that the property should be safe, because he is liable to a personal action, still the party in interest can bring an action against him, if his interest is based on a good title. We do not adopt the opinion of Servius who held, if no owner of the stolen property had appeared, or should afterwards appear, that the thief would be entitled to the action of theft, for it could not then any the more be understood to belong to him who proposed to profit by it pecuniarily. Therefore, the owner will be entitled to an action for theft against both of them, and if he begins suit against one, his right to bring such an action against the other will continue to exist. The same rule applies to a personal action, for both of them are liable for different acts.

78 The Same, On Various Passages, Book XIII. Where anyone steals a bag containing money, he is also liable for stealing the bag, although he may not have had the intention of doing so.

79 Papinianus, Questions, Book VIII. When anyone gives an article to be examined, and he who receives it assumes the risk, he himself can bring the action for theft.

80 The Same, Questions, Book IX. Where a debtor steals a pledge, he can, under no circumstances, recover what he has paid in an action for theft.

81 The Same, Questions, Book XII. If I sell, but do not deliver a slave, and he is stolen without any fault of mine, the better opinion is that I will be entitled to an action for theft; and I am considered to be interested, either because the property was in my hands or because I will be obliged to assign my rights of action. 1When, however, the action of theft is postponed on account of the ownership, although it does not lie unless we have an interest, still, my benefit should be referred to the valuation of the article itself, even if I have no other interest. This is proved in the case of slaves who are to become free under a certain condition, and where a legacy is bequeathed conditionally. Otherwise, where an attempt is made to prove something else, the amount cannot be easily determined. Therefore, because the valuation solely depends upon the benefit, as the action for theft arises without taking the ownership into consideration, in instances of this kind the action for theft cannot be referred to the valuation of the article. 2If I have brought an action for the production of property, intending to make a choice of a slave who was bequeathed to me, and one of the slaves belonging to the estate has been stolen, the heir will be entitled to an action for theft, as he has an interest in the matter, and it makes no difference whether the slave should have been guarded. 3No matter how a robber perpetrates a theft, he should be considered a manifest thief. 4He, however, through whose fraudulent act a robbery is committed, is not liable for theft, but for robbery with violence. 5If Titius, in whose name a false agent has collected money which was not due, ratifies the payment, Titius, indeed, can himself bring an action for business transacted; but he who paid the money which was not due will be entitled to a personal action on that ground against Titius, and the action for theft will also lie against the false agent. But if Titius should be sued, he can not improperly avail himself of an exception on the ground of fraud, to compel the right of personal action for theft to be assigned to him. If, however, the money was due, and Titius ratifies the payment, the right of action for theft will be extinguished, because the debtor is released. 6A false agent can also commit a theft of money, if he deceives the debtor of another, by assuming the name of a genuine agent of the creditor. This also applies to the case of one who asserts that money is due to him as the heir of the creditor, Sempronius, when he is not the heir. 7A person who was accustomed to transact the business of Titius paid a false agent of his creditor in his name, and Titius ratified the payment. The right of action for theft will not arise in favor of Titius, because as soon as the money has been paid, the action can be brought by the person who paid it, as neither the ownership nor the possession of the money belong to Titius. Titius, however, will be entitled to a personal action for the recovery of money which was not due, and he who paid the money can bring the action for theft. If Titius is sued on voluntary agency, the money should be awarded to him by the decision of the court.

82 The Same, Opinions, Book I. Anyone who steals money belonging to a municipality or a city is liable to an action for theft, and not for the crime of peculation.

83 Paulus, Opinions, Book II. A fuller or a tailor who receives clothing for the purpose of cleaning and repairing it and makes use of it is, by doing so, considered to have committed a theft, because the clothing was not received by him for that purpose. 1Where crops are stolen from land, the tenant, as well as the owner, can bring the action for theft, because it was to the interest of both of them to recover the property. 2Anyone who steals a female slave, who is not a prostitute, for licentious purposes, will be liable to an action for theft; and if he conceals her, can be punished under the Favian Law. 3Anyone who steals accounts or notes is liable to an action for theft, for the amount contained in them. It does not make any diiference whether they have been cancelled or not, because, by means of them it can be proved that the debt was paid.

84 Neratius, Opinions, Book I. Where anyone, thinking that a person is dead, who in fact is still living, takes possession of his property as his heir, he does not commit a theft. 1If, after having begun an action for theft against a man in his own name, you bring another against him for some article stolen by his slave, he cannot plead an exception on the ground that both thefts were committed at the same time.

85 Paulus, On Neratius, Book II. Although stolen property cannot be acquired by usucaption unless it is returned to the owner; still, if its appraised value in court is paid to the latter, or he sells the property to the thief, it must be said that the right of usucaption is not interrupted.

86 The Same, Manuals, Book II. He who has an interest in not having the property stolen is entitled to the action for theft, if he also has possession of it with the consent of the owner; that is to say, where, for instance, the property is. leased to him. He, however, who voluntarily administers affairs as a guardian, just like a regular guardian or curator, cannot bring an action for theft on account of property which has been stolen through his fault. Likewise, anyone to whom a slave is due either under the terms of a stipulation or by a will, although he has an interest, cannot bring the action for theft; nor can he do so who has become surety for a tenant.

87 Tryphoninus, Disputations, Book IX. If property which has been stolen, or obtained by violence, comes into the hands of the owner, and he is ignorant of the fact, it will not be considered to have been restored to his control. Therefore, if after possession of this kind the property should be sold to a bona fide purchaser, usucaption cannot take place.

88 Paulus, Decrees, Book I. An action for theft will lie in favor of a creditor for the value of a pledge, but not for the amount of the debt. But when the debtor himself steals the pledge, the contrary is true; so that the action for theft can be brought for the amount of money due, and for the interest on the same.

89 The Same, On Concurrent Actions. Where anyone brings an action for robbery with violence, he cannot also bring one for theft. If, however, he should prefer to bring an action of theft for double damages, he can also bring one for robbery with violence; provided that fourfold the value of the property is not exceeded.

90 The Same, On the Penalties of Civilians. If a freedman or a client commits a theft against his patron, or a day laborer steals from one who employs him, there will not be ground for an action of theft.

91 Javolenus, On the Last Works of Labeo, Book IX. A fuller was released from liability to the owner in an action on hiring. Labeo denies that an action for theft will lie. Again, if he should bring an action for theft before the action for hiring was brought against him, and before judgment had been rendered with reference to the thief he should be released by the action on hiring, and the thief ought also to be discharged so far as he is concerned. If nothing of this kind previously occurred, judgment should be rendered against the thief in favor of the fuller, and this is the case because he has a right to the action for theft only to the extent of his interest. 1No one can give aid and advice to another who himself has no intention of committing a theft.

92 Labeo, Epitomes of Probabilities by Paulus, Book II. If anyone, knowing that property is being stolen from him, does not prevent this from being done, he cannot bring an action for theft. Paulus: The contrary is certainly true. For if anyone knows that property has been stolen from him, and keeps quiet because he cannot prevent it, he can bring an action for theft. If, however, he could have prevented it, but did not do so, he can still bring an action for theft. In this way patrons are accustomed to commit thefts against their freedmen, and also anyone who is entitled to such respect or reverence that it prevents him from being resisted by another in his presence, is accustomed to commit a theft.

93 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.