[IULIANUS libro uicensimo secundo digestorum. ] §47.2.57.prInterdum fur etiam manente poenae obligatione in quibusdam casibus rursus obligatur, ut cum eo saepius eiusdem rei nomine furti agi possit.
[JULIANUS in the twenty-second book of the Digests.] Sometimes a thief, even while the obligation to punishment remains, is in certain cases bound anew, so that it is possible to bring an action for theft against him multiple times on account of the same thing.
primus casus occurrit, si possessionis causa mutata esset, ueluti si res in domini potestatem redisset eandemque idem subriperet uel eidem domino uel ei, cui is commodasset aut uendidisset.
The first case occurs if the cause of possession has been changed, for example, if the thing had returned to the power of the owner, and the same person should steal it either from the same owner or from the one to whom he had lent or sold it.
sed et si persona domini mutata esset, altera poena obligatur. §47.2.57.1Qui furem deducit ad praefectum uigilibus uel ad praesidem, existimandus est elegisse uiam, qua rem persequeretur: et si negotium ibi terminatum et damnato fure recepta est pecunia sublata in simplum, uidetur furti quaestio sublata, maxime si non solum rem furtiuam fur restituere iussus fuerit, sed amplius aliquid in eum iudex constituerit.
But also, if the person of the owner has been changed, he is bound by another penalty. He who brings a thief before the prefect of the watch or before the governor must be deemed to have chosen the path by which he would pursue the thing: and if the matter is terminated there and, the thief being condemned, the money taken has been recovered in simple value, the action of theft seems to be extinguished, especially if the thief was not only ordered to restore the stolen thing, but the judge imposed some further penalty upon him.
sed et si nihil amplius quam furtiuam rem restituere iussus fuerit, ipso, quod in periculum maioris poenae deductus est fur, intellegendum est quaestionem furti sublatam esse. §47.2.57.2Si res peculiaris subrepta in potestatem serui redierit, soluitur furti uitium et incipit hoc casu in peculio esse et a domino possideri. §47.2.57.3Cum autem seruus rem suam peculiarem furandi consilio amouet, quamdiu eam retinet, condicio eius non mutatur (nihil enim domino abest): sed si alii tradiderit, furtum faciet. §47.2.57.4Qui tutelam gerit, transigere cum fure potest et, si in potestatem suam redegerit rem furtiuam, desinit furtiua esse, quia tutor domini loco habetur.
But even if he was ordered to restore nothing more than the stolen thing, by the very fact that the thief was brought into danger of a greater penalty, it must be understood that the action of theft is extinguished. If a stolen thing belonging to a peculium has returned into the power of the slave, the defect of theft is cleared, and in this case it begins to be in the peculium and to be possessed by the owner. But when a slave removes a thing belonging to his peculium with the intention of stealing it, as long as he retains it, its status is not changed (for nothing is lost to the owner): but if he has delivered it to another, he will commit a theft. He who exercises guardianship can compromise with the thief, and if he has recovered the stolen thing into his own power, it ceases to be stolen, because a tutor is held to be in the place of the owner.
sed et circa curatorem furiosi eadem dicenda sunt, qui adeo personam domini sustinet, ut etiam tradendo rem furiosi alienare existimetur.
But also, the same must be said concerning the curator of an insane person, who so far sustains the person of the owner that even by delivering the thing of the insane person he is deemed to alienate it.
condicere autem rem furtiuam tutor et curator furiosi eorum nomine possunt. §47.2.57.5Si duo serui tui uestem et argentum subripuerint et alterius nomine tecum de ueste actum fuerit, alterius de argento agatur: nulla exceptio dari debebit ob eam rem, quod iam de ueste actum fuerit.
Moreover, a tutor and the curator of an insane person can bring a condictio for the stolen thing in their name. If two of your slaves have stolen a garment and silver, and an action has been brought against you on account of the garment in the name of one, and on account of the silver in the name of the other: no exception ought to be granted on the ground that an action has already been brought concerning the garment.