Si familia furtum fecisse dicetur
(Concerning Thefts Alleged to Have Been Made by an Entire Body of Slaves.)
1 Ulpianus libro trigensimo octavo ad edictum. Utilissimum id edictum praetor proposuit, quo dominis prospiceret adversus maleficia servorum, videlicet ne, cum plures furtum admittunt, evertant domini patrimonium, si omnes dedere aut pro singulis aestimationem litis offerre cogatur. datur igitur arbitrium hoc edicto, ut, si quidem velit dicere noxios servos, possit omnes dedere, qui participaverunt furtum: enimvero si maluerit aestimationem offerre, tantum offerat, quantum, si unus liber furtum fecisset, et retineat familiam suam. 1Haec autem facultas domino tribuitur totiens, quotiens ignorante eo furtum factum est: ceterum si sciente, facultas ei non erit data: nam et suo nomine et singulorum nomine conveniri potest noxali iudicio, nec una aestimatione, quam homo liber sufferret, defungi poterit: is autem accipitur scire, qui scit et potuit prohibere: scientiam enim spectare debemus, quae habet et voluntatem: ceterum si scit, prohibuit tamen, dicendum est usurum edicti beneficio. 2Si plures servi damnum culpa dederint, aequissimum est eandem facultatem domino dari. 3Cum plures servi eiusdem rei furtum faciunt et unius nomine cum domino lis contestata sit, tamdiu aliorum nomine actio sustineri debebit, quamdiu priore iudicio potest actor consequi, quantum consequeretur, si liber id furtum fecisset,
1 Ulpianus, On the Edict, Book XXXVIII. The Prætor introduced this most useful Edict in order to enable a master to provide against the offences of his slaves; for instance, where several of them had committed theft, they could not destroy the patrimony of their master if he was compelled to surrender all of them by way of reparation for the injury committed, or to pay the appraised value of each of them in court. Therefore, if he desires to admit that his slaves are liable for damage committed by them, he has the choice, under this Edict, to surrender all who participated in the theft; or if he prefers to tender their estimated value, he can tender as much as a freeman would be compelled to do, if he had committed a theft, and retain his slaves. 1This power is granted to a master, whenever the theft was committed without his knowledge. If, however, he was aware of it, this privilege will not be conceded to him, for he can be sued in a noxal action both in his own name and in the name of each of his slaves, and he cannot free himself from liability by paying the estimated value once, which a freeman can do. The word “aware” is understood to mean where he knew of the crime and could have prevented it, for we should consider knowledge as also including the will. If, however, he was aware of the theft and prevented it, it must be said that he is entitled to the benefit of the Edict. 2Where several slaves have caused damage through their negligence, it is but just that the same privilege should be granted their master. 3When several slaves steal the same article, and an action is brought against the master on account of one of them, proceedings against the others should remain in abeyance until the plaintiff, by the first judgment, recovers as much as he would have done if a freedman had committed the theft:
2 Iulianus libro vicensimo tertio digestorum. id est et poenae nomine duplum et condictionis simplum.
2 Julianus, Digest, Book XXIII. That is to say, double damages by way of penalty, and simple damages in the personal action.
3 Ulpianus libro trigensimo octavo ad edictum. Quotiens tantum praestat dominus, quantum praestaretur, si unus liber fecisset, cessat ceterorum nomine actio, non adversus ipsum, verum etiam adversus emptorem dumtaxat, si forte quis eorum, qui simul fecerant, venierit. idemque et si fuerit manumissus. quod si prius fuerit ablatum a manumisso, tunc dabitur adversus dominum familiae nomine: nec enim potest dici, quod a manumisso praestitum est, quasi a familia esse praestitum. plane si emptor praestiterit, puto denegandam in venditorem actionem: quodammodo enim hoc a venditore praestitum est, ad quem nonnumquam regressus est ex hac causa, maxime si [ed. maior furto] <ed. minor furtis> noxaque solutum esse promisit. 1Sed an, si legati servi nomine vel eius, qui donatus est, actum sit cum legatario vel eo, cui donatus est, agi possit etiam cum domino ceterorum, quaeritur: quod admittendum puto. 2Huius edicti levamentum non tantum ei, qui servos possidens condemnatus praestitit tantum, quantum, si unus liber fecisset, datur, verum ei quoque, qui idcirco condemnatus est, quia dolo fecerat quo minus possideret.
3 Ulpianus, On the Edict, Book XXXVIII. Whenever the master pays as much as he would if a single freeman had committed the theft, the right of action with reference to the others is extinguished, not only against the master himself but also against the purchaser, if any one of the slaves, who together had committed the theft, should be sold. The same rule will apply if the slave should be manumitted. If the money had first been collected from the manumitted slave, then the action will be granted against the master of all the slaves; for it cannot be said that what was paid by the manumitted slave was, as it were, paid by all of them. I think it is clear that if the purchaser should pay, an action against the vendor ought to be denied; for payment was, to a certain extent, made by the vendor, against whom sometimes recourse can be had in such a case, and especially if he declared that the slave who was sold was not liable to be surrendered by way of reparation for damage, and was not guilty of theft. 1If an action should be brought against a legatee on account of a slave who has been bequeathed, or against a person to whom he has been donated, can proceedings also be instituted against the owner on account of the other slave? is a question which may be asked. I think that this ought to be admitted. 2The relief of this Edict is not only granted to him who, possessing slaves and having had judgment rendered against him, only pays as much as if a single freeman had committed the damage, but it also benefits him who was condemned because he committed fraud to avoid having possession.
4 Iulianus libro vicensimo secundo digestorum. Etiam heredibus eius, cui plures eiusdem familiae furtum fecerint, eadem actio competere debet, quae testatori competebat, id est ut omnes non amplius consequantur, quam consequerentur, si id furtum liber fecisset.
4 Julianus, Digest, Book XXII. The action to which a testator is entitled will lie in favor of the heirs of him against whom several slaves of the same household have committed a theft; that is to say, all of them will not recover any more than they would have done if a freeman had perpetrated the theft.
5 Marcellus libro octavo digestorum. Familia communis sciente altero furtum fecit: omnium nomine cum eo qui scit furti agi poterit, cum altero ad eum modum, qui edicto comprehensus est: quod ille praestiterit non totius familiae nomine, ab hoc socio partem consequeretur. et si servus communis alterius iussu damnum dederit, etiam quod praestiterit alter, si modo cum eo quoque ex lege Aquilia vel ex duodecim tabulis agi potest, repetat a socio, sicuti cum communi rei nocitum est. si ergo dumtaxat duos habuerim servos communes, cum eo, quo non ignorante factum est, agetur utriusque servi nomine, sed non amplius consequentur a socio, quam si unius nomine praestitisset: quod si cum eo, quo ignorante factum est, agere volet, duplum tantum consequetur. et videamus, an iam in socium alterius servi nomine non sit dandum iudicium, quemadmodum si omnium nomine socius decidisset: nisi forte hoc casu severius a praetore constituendum est nec servorum conscio parcendum est.
5 Marcellus, Digest, Book VIII. A number of slaves owned in common committed a theft with the knowledge of one of their masters. An action for theft can be brought on account of all of them against the owner who was aware of the crime, but against the other owner only to the extent authorized by the Edict. If the former owner should pay, he can recover his share from the other, but not the amount due for the entire body of slaves. Where a slave, owned in common, commits damage by order of one of his masters, and the other makes payment, he can recover from his partner on the ground of damage sustained by the property owned in common; provided he can bring suit against him under the Aquilian Law, or the Law of the Twelve Tables. Therefore, if I have only two slaves owned in common, an action can be brought against the master who was aware that the damage had been committed, and this will include both slaves, but he cannot recover more from his partner than if he had paid for one alone. If, however, he should desire to proceed against the master who did not know that any injury had been done, he can only collect double damages. Let us see whether an action should not be granted against his partner, on account of the other slave, just as if he had paid in the name of all of them. In this case the decision of the Prætor should be more severe, and no indulgence should be shown to the one who was aware of the act of the slaves.
6 Scaevola libro quarto quaestionum. Labeo putat, si coheres meus, quod furtum familia cuius fecisset, duplum abstulisset, me non impediri, quo minus dupli agam, eoque modo fraudem edicto fieri esseque iniquum plus heredes nostros ferre, quam ferremus ipsi. 1Idem, si defunctus minus duplo abstulit, adhuc singulos heredes recte experiri. Scaevola respondit: verius puto partes eius heredes persecuturos, sed ut cum eo, quod defunctus abstulit, uterque heres non plus duplo ferat.
6 Scævola, Questions, Book IV. If my co-heir has collected double damages on account of a theft perpetrated by a number of slaves, Labeo thinks I will not be prevented from bringing an action for double damages; and that, in this way, a fraud will be committed against the Edict; and that it is unjust for our heirs to collect more than we ourselves could have done. 1He also says that if the deceased recovered less than double damages, his heirs cannot properly bring suit for more than equal portions; but I think that the better opinion is that the heirs can sue for their shares, and that both heirs together cannot recover more than double damages including what the deceased collected.