The Same, On Sabinus, Book XLIII. I do not think that it is inadmissible to insert in a contract of deposit loan, hire, and others of the same description, an agreement of this kind, namely: “You must not make my slave a thief”; that is to say, you must not solicit him to become a thief, or a fugitive, nor must you neglect him to such an extent that he will commit theft; for as an action will lie for the corruption of a slave, so this agreement which relates to the prevention of the corruption of slaves will stand.

The Same, On Sabinus, Book XLII. If you permit me to remove stone from your land, or to dig chalk, or sand, and I have incurred expense in doing so, and you do not allow me to remove it, no other action will lie in my favor against you, except that on the ground of malicious contrivance.

The Same, On Sabinus, Book XLII. That is, with reference to the share for which he brings suit as plaintiff.

Ulpianus, On Sabinus, Book XLII. Under the Lex Aquilia the slightest negligence is taken in consideration. 1Whenever a slave wounds or kills anyone, there is no doubt that his owner is liable under the Lex Aquilia.

The Same, On Sabinus, Book XLII. Where a party has made good the loss as a thief, it is perfectly certain that this is no bar to an action for recovery of the property; for by payment of the loss the right of action for theft is extinguished, but not the right of action for recovery of the stolen property. 1The action for theft is brought for the lawful penalty, but the action for recovery for the property itself; and the result is that neither the right of action for theft is lost by the one for recovery nor the action for recovery by that of theft. Therefore, a party who is the victim of a theft has a right of action for theft, a right of action for damages, and a right of action for recovery, and he is also entitled to an action for production. 2The action for the recovery of stolen property, because it involves proceedings to obtain the property itself, renders the heir of the thief also liable, and not only while the slave who was stolen is living, but also after his death. Where, however, the slave who was stolen lost his life while in possession of the heir of the thief—or even when he was not in his possession—after the death of the thief; it must be said that the action will continue to lie against the heir. What we have stated with reference to the heir is equally applicable to all other successors.

Ad Dig. 19,5,15Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 308, Note 3.The Same, On Sabinus, Book XLII. Persons who know where fugitive slaves are concealed should inform their masters, and this does not render them guilty of theft; for it is usual for them to receive a reward for doing so, if they disclose the hiding place of said slaves, and the gift in this instance is not deemed unlawful; therefore, the party who receives the reward need not fear a suit for its recovery, because he received it for a good reason, and not for one which is dishonorable. Where, however, nothing was paid, but an agreement was entered into with reference to the information, that is to say, that a certain sum should be given to the party if he disclosed the hiding-place of the slave, and the latter is apprehended, let us see whether an action can be brought. In fact, this is not an agreement without consideration, from which it may be held that an action will not arise, but it includes a certain transaction, and therefore can become the ground for a civil action; that is, one præscriptis verbis, unless someone may say that, in this case, a suit on the ground of fraud will lie, where bad faith can be established.

Ulpianus, On Sabinus, Book XLII. Where anyone makes a promise to the stipulating party “That the slave is sound, is not a thief, is not a violator of graves, etc.,” the stipulation seems to some authorities to be void, because if the slave is of this character what is promised is impossible, and if he is not, the promise is without effect. I think that the following stipulation is more correct, namely: “That the slave is not a thief, is not a violator of graves, and is sound,” and this is in conformity with law, for it contains what it is for the interest of the purchaser of the slave to have and not to have. But if a guarantee is added to any of these statements the stipulation will be still more valid; otherwise the stipulation introduced by the Ædiles will be void, because no rational man would approve of it.

Ulpianus, On Sabinus, Book XLII. An action under a bond of indemnity for threatened injury is not granted to a tenant, because he can proceed under his lease, if the owner of the property should prevent him from leaving;

Ulpianus, On Sabinus, Book XLII. In case of the demolition of a party-wall, inquiry must be made whether or not it was fitted to support the weight placed upon it.

Ulpianus, On Sabinus, Book XLII. For, if it was not capable of sustaining these weights, it should be demolished. He who demolishes it should not be liable, if any damage results for this reason, unless he builds a new wall which is either too expensive, or not good enough for the purpose. If the wall which was demolished was a suitable one, the plaintiff will be entitled to an action under the stipulation for indemnity, to the amount of his interest in having the wall remain. This is reasonable, for if it ought not to have been demolished, he shall rebuild it at his own expense. Moreover, Sabinus says that if anyone lost any income on account of the demolition of the wall, it should be repaid to him. If the tenants leave the house, or cannot be so conveniently lodged, the builder of the new wall shall be responsible.

The Same, On Sabinus, Book XLII. Where anyone permits me, by way of donation, to remove stone from his property, as soon as the stone is taken out it will be mine, and he cannot prevent me from having it by forbidding its removal, because it becomes mine, as it were, by delivery. It is clear that if someone, who had been employed by me, should quarry the stone, he quarries it for me. If, however, anyone purchases the stone from me, or leases it for a consideration, in such a way that I can permit him to quarry for himself, and, before he does so, I change my mind, the stone will continue to belong to me. If I should change my mind afterwards I cannot revoke his act, as delivery is presumed to have been made when he quarried the stone with the consent of the owner. What applies to the stone should also be considered to apply where a tree is cut down, or is taken out by the roots, under similar circumstances.

Ad Dig. 45,1,26ROHGE, Bd. 18 (1876), Nr. 25, S. 101: Verträge über unerlaubte, dem öffentlichen Interesse zuwiderlaufenden Handlungen. Ueberlassung des Ertrags aus der gesammten geschäftlichen Thätigkeit lebenslang.Ulpianus, On Sabinus, Book XLII. We know that, generally speaking, dishonorable stipulations are of no force or effect:

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.

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. 5Ad Dig. 47,2,48,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 186, Note 14.Where 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. 6Ad Dig. 47,2,48,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 186, Note 14.Colts 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.

Ad Dig. 47,3,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 188, Note 16.The Same, On Sabinus, Book XLII. If, however, you suppose that suit has been brought for stolen timbers joined to a house, the question may arise whether an action for the recovery of the property will lie independently. I do not doubt that it will.

Ulpianus, On Sabinus, Book XLII. The larger number of ancient authorities held that vines were included in the term “trees.” 1Ivy, as well as reeds, are not improperly styled trees. 2The same may be said to apply to willows. 3But when anyone, for the purpose of planting willows, has inserted branches into the ground, and these are cut down or torn up, before they have taken root, Pomponius very properly says that the action for cutting down trees cannot be brought, as that cannot properly be called a tree which has not yet become rooted. 4If anyone removes a tree from a nursery, that is to say, with its roots, although it may not yet have taken hold of the soil, Pomponius, in the Nineteenth Book on Sabinus, says that it should be considered a tree. 5Therefore, that also may be considered a tree whose roots have ceased to live, 5aalthough it still remains in the earth. This opinion is also adopted by Labeo. 6Labeo thinks that a tree can properly be so called which, having been torn out by the roots, cannot be replaced, or which has been removed in such a way that this can be done. 7Olive sprouts should be considered trees, whether they have thrown out roots or not. 8An action, therefore, can be brought on account of all the trees which we have above enumerated.

Ulpianus, On Sabinus, Book XLII. Who doubts that, after a slave has been manumitted, an action will not lie for an injury which he sustained while in servitude? 1If an injury has been inflicted upon a son, while the right of action will be acquired by the son as well as the father, the same estimate should not be made for both:

Ulpianus, On Sabinus, Book XLII. Magistrates are not allowed to do anything by which an injury may be caused. Therefore, if a magistrate, either as a private individual, or in his magisterial capacity, is instrumental in committing injury, he can be sued for injury. But will it be necessary to wait until he has relinquished his office, or can the suit be brought while he still holds it? The better opinion is, that if he is a magistrate who cannot legally be summoned to court, it will be necessary to wait until he relinquishes his office. If, however, he is one of the inferior magistrates, that is to say, one of those not invested with supreme jurisdiction or authority, he can be sued, even while he is still discharging his judicial duties.

Ulpianus, On Sabinus, Book XLII. Brokers have a right to demand their commissions.

The Same, On Sabinus, Book XLII. It is one thing to allege that a slave is not a thief, and another to say that he will not be liable for theft or damage committed by him. For when a man says that a slave is not a thief, he has reference to his disposition; but when he says that he will not be liable for theft or damage committed by him, he states that he will not be responsible to anyone for his depredations.

The Same, On Sabinus, Book XLII. It is true that neither agreements nor stipulations can abrogate an act which has already been performed; for whatever is impossible cannot be included in an agreement or a stipulation in such a way as to render a prætorian action or agreement effective.