[ULPIANUS libro uicensimo octauo ad edictum. ] §13.6.7.prUnde quaeritur, si alter furti egerit, an ipse solus debeat commodati conueniri.
[ULPIANUS in the twenty-eighth book on the Edict] Hence the question arises, if one of them has brought the action of theft, whether he alone ought to be sued by the action of loan.
et ait Celsus, si alter conueniatur qui furti non egit, et paratus sit periculo suo conueniri alterum qui furti agendo lucrum senssit ex re commodata, debere eum audiri et absolui.
And Celsus says that if the other, who did not bring the action of theft, is sued, and is ready at his own risk for the other—who by bringing the action of theft realized a profit from the loaned property—to be sued, he ought to be heard and acquitted.
§13.6.7.1Sed si legis Aquiliae aduersus socium eius habuit commodator actionem, uidendum erit, ne cedere debeat, si forte damnum dedit alter, quod hic qui conuenitur commodati actione sarcire compellitur: nam et si aduersus ipsum habuit Aquiliae actionem commodator, aequissimum est, ut commodati agendo re- mittat actionem: nisi forte quis dixerit agendo eum e lege Aquilia hoc minus consecuturum, quam ex causa commodati consecutum est: quod uidetur habere rationem.
But if the lender had an action under the Lex Aquilia against his partner, it must be considered whether he ought not to cede it, if perchance the other caused the damage which this person, who is being sued by the action of loan, is compelled to make good. For even if the lender had the Aquilian action against the borrower himself, it is most equitable that by bringing the action of loan he should release the other action; unless perchance someone should say that by proceeding under the Lex Aquilia he would recover so much less than what is obtainable on the ground of loan; and this view seems to be reasonable.