[IDEM libro quadragensimo secundo ad Sabinum. ]
[THE SAME in his forty-second book on Sabinus.] It is agreed among all that even if the stolen thing is destroyed, the action for theft nevertheless remains against the thief.
§47.2.46.prInter omnes constat, etiamsi exstincta sit res furtiua, attamen furti remanere actionem aduersus furem. proinde mortuo quoque homine, quem quis furto abstulit, uiget furti actio.
Therefore, even if the slave whom someone took away by theft has died, the action for theft is still viable.
sed nec manumissio furti actionem extinguit: nec enim dissimilis est morti manumissio quod ad subtrahendum domino seruum.
But neither does manumission extinguish the action for theft; for manumission is not different from death as regards withdrawing a slave from his master.
apparet itaque, qualiterqualiter domino sit seruus subtractus, attamen superesse aduersus furem furti actionem, eoque iure utimur: competit enim actio non ideo, quia nunc abest, sed quia umquam beneficio furis afuit.
It appears, therefore, that in whatever way the slave was withdrawn from his master, the action for theft against the thief nevertheless survives, and we observe this rule: for the action lies not because the slave is now absent, but because he was once absent through the agency of the thief.
hoc idem in condictione quoque placet: nam condici furi potest, etiamsi res sit aliqua ratione extincta.
This same rule is accepted also in the case of a personal claim (condictio); for a personal claim can be brought against a thief even if the thing has been destroyed for some reason.
hoc idem dicendum, si res in potestatem hostium peruenerit: nam constat posse de ea furti agi.
The same must be said if the thing has come into the power of the enemy; for it is established that an action for theft can be brought concerning it.
sed et si pro derelicto sit postea a domino habita, furti nihilo minus agi poterit.
But even if it is afterwards held by the master as abandoned, the action for theft can nonetheless be brought.
§47.2.46.1Si seruus fructuarius subreptus est, uterque, et qui fruebatur et dominus, actionem furti habet.
If a slave subject to a usufruct is stolen, both the usufructuary and the owner have the action for theft.
diuidetur igitur actio inter dominum et fructuarium: fructuarius aget de fructibus uel quanti interfuit eius furtum factum non esse eius, dupli: proprietarius uero aget, quod interfuit eius proprietatem non esse subtractam.
Therefore, the action will be divided between the owner and the usufructuary: the usufructuary will sue for double the value of the fruits or for how much it was in his interest that the theft of the slave had not occurred; whereas the owner will sue for how much it was in his interest that his ownership was not withdrawn.
§47.2.46.2Quod dicimus dupli, sic accipere debemus etiam quadrupli competere actionem, si manifestum furtum sit.
When we say "for double," we must understand it in this way, that an action for fourfold also lies if it is manifest theft.
§47.2.46.3Haec actio et si sit, qui in eo seruo habeat usum tantum, poterit ei competere.
This action, even if there is someone who has only the use of that slave, can lie for him.
§47.2.46.4Et si quis proposuerit hunc seruum etiam pigneratum esse, eueniet, ut etiam is qui pignori accepit habeat furti actionem: hoc amplius etiam debitor, si modo plus ualeat, quam pro pignore debetur, habet furti actionem.
And if anyone supposes that this slave was also pledged, it will result that he who received the pledge also has the action for theft; furthermore, the debtor also, provided only that the slave is worth more than what is owed on the pledge, has the action for theft.
§47.2.46.5Usque adeo autem diuersae sunt actiones, quae eis competunt, ut, si quis eorum pro fure damnum deciderit, dici oporteat solummodo actionem sibi competentem amisisse eum, ceteris uero superesse.
However, the actions which lie for them are so distinct that if one of them should settle the damage for the thief, it must be said that he has lost only the action lying for himself, while for the others it remains.
nam et si proponas communem seruum subreptum et alium ex dominis pro fure damnum decidisse, is qui non decidit habebit furti actionem.
For even if you suppose that a common slave was stolen and one of the owners settled the damage for the thief, he who did not settle will have the action for theft.
§47.2.46.6Proprietarius quoque agere aduersus fructuarium potest iudicio furti, si quid celandae proprietatis uel subprimendae causa fecit.
The owner also can bring an action for theft against the usufructuary if the latter has done anything for the purpose of concealing or suppressing the ownership.
§47.2.46.7Recte dictum est, qui putauit se domini uoluntate rem attingere, non esse furem: quid enim dolo facit, qui putat dominum consensurum fuisse, siue falso id siue uere putet? is ergo solus fur est, qui adtrectauit, quod inuito domino se facere sciuit.
It has been rightly said that he who thought he was touching the thing with the consent of the master is not a thief; for what does he do with wrongful intent (dolus) who thinks that the master would have consented, whether he thinks so falsely or truly? Therefore, only he is a thief who handled what he knew he was doing against the will of the master.
§47.2.46.8Per contrarium quaeritur, si ego me inuito domino facere putarem, cum dominus uellet, an furti actio sit.
On the contrary, it is asked whether there is an action for theft if I thought I was doing it against the will of the master when the master actually wished it.
et ait Pomponius furtum me facere: uerum tamen est, ut, cum ego uelim eum uti, licet ignoret, ne furti sit obligatus.
And Pomponius says that I commit theft; but it is nevertheless true that when I wish him to use it, although he is ignorant of this, he is not bound for theft.
§47.2.46.9Si furtiua res ad dominum rediit et iterum contrectata est, competit alia furti actio.
If a stolen thing has returned to its master and is handled again, another action for theft lies.