[IDEM libro trigensimo octauo ad Quintum Mucium. ] §47.2.77.prQui re sibi commodata uel apud se deposita usus est aliter atque accepit, si existimauit se non inuito domino id facere, furti non tenetur.
[THE SAME, in the thirty-eighth book on Quintus Mucius.] He who has used a thing lent to him or deposited with him in a manner other than that in which he received it, if he believed that he did so not against the will of the owner, is not liable for theft.
sed nec depositi ullo modo tenebitur: commodati an teneatur, in culpa aestimatio erit, id est an non debuerit existimare id dominum permissurum.
But neither will he be liable in any way under the action on deposit; whether he is liable under the action on loan will depend on the assessment of his fault, that is, whether he ought not to have believed that the owner would permit it.
§47.2.77.1Si quis alteri furtum fecerit et id quod subripuit alius ab eo subripuit, cum posteriore fure dominus eius rei furti agere potest, fur prior non potest, ideo quod domini interfuit, non prioris furis, ut id quod subreptum est saluum esset.
If anyone has committed a theft against another, and another has stolen from him that which he purloined, the owner of that thing can bring an action of theft against the later thief, but the prior thief cannot, for the reason that it was of concern to the owner, not to the prior thief, that what was stolen should be safe.
haec Quintus Mucius refert et uera sunt: nam licet intersit furis rem saluam esse, quia condictione tenetur, tamen cum eo is cuius interest furti habet actionem, si honesta ex causa interest.
Quintus Mucius reports these things and they are true; for although it is of concern to the thief that the thing be safe, because he is liable to a condictio, nevertheless he whose concern it is has an action of theft against him, provided he has an interest based on an honorable cause.
nec utimur Seruii sententia, qui putabat, si rei subreptae dominus nemo exstaret nec exstaturus esset, furem habere furti actionem: non magis enim tunc eius esse intellegitur, qui lucrum facturus sit.
Nor do we follow the opinion of Servius, who thought that if no owner of the stolen thing existed or were likely to exist, the thief would have the action of theft; for it is no more understood to belong to him who is to make a profit.
dominus igitur habebit cum utroque furti actionem, ita ut, si cum altero furti actionem inchoat, aduersus alterum nihilo minus duret: sed et condictionem, quia ex diuersis factis tenentur.
Therefore, the owner will have an action of theft against both, so that if he begins an action of theft against one, it nevertheless persists against the other; but also a condictio, because they are liable based on distinct acts.