[MARCELLUS libro quinto digestorum. ] §16.3.22.prSi duo heredes rem apud defunctum depositam dolo interuerterint, quodam utique casu in partes tenebuntur: nam si diuiserint decem milia, quae apud defunctum deposita fuerant, et quina milia abstulerint et uterque soluendo est, in partes obstricti erunt: nec enim amplius actoris interest.
[MARCELLUS, Digest, Book 5] If two heirs have fraudulently embezzled a thing deposited with the deceased, they will at any rate in a certain case be liable for their respective shares. For if they have divided ten thousand which had been deposited with the deceased, and have taken five thousand each, and both are solvent, they will be bound for their respective shares; for the plaintiff has no interest beyond that.
quod si lancem conflauerint aut conflari ab aliquo passi fuerint aliaue quae species dolo eorum interuersa fuerit, in solidum conueniri poterunt, ac si ipsi seruandam suscepissent: nam certe uerum est in solidum quemque dolo fecisse et nisi pro solido res non potest restitui.
But if they have melted down a dish, or have allowed it to be melted down by someone else, or if any other specific thing has been embezzled by their fraud, they can be sued for the whole, just as if they themselves had undertaken to keep it. For it is certainly true that each did the fraudulent act with respect to the whole, and the thing cannot be restored except as a whole.
nec tamen absurde sentiet, qui hoc putauerit plane nisi integrae rei restitutione eum, cum quo actum fuerit, liberari non posse, condemnandum tamen, si res non restituetur, pro qua parte heres exstitit.
And yet, he will not think absurdly who supposes that the one against whom the action was brought cannot be released except by the restoration of the whole thing, but that, if the thing is not restored, he is to be condemned only for the share in which he succeeded as heir.