[ULPIANUS libro trigensimo octauo ad edictum. ] §47.6.1.prUtilissimum id edictum praetor proposuit, quo dominis prospiceret aduersus maleficia seruorum, uidelicet ne, cum plures furtum admittunt, euertant domini patrimonium, si omnes dedere aut pro singulis aestimationem litis offerre cogatur.
[ULPIANUS on the Edict, book 38] The praetor proposed a most useful edict, by which he protected the interests of masters against the delicts of their slaves, namely, so that when several slaves commit a theft, the master's patrimony is not ruined if he is compelled either to surrender them all or to offer the estimated value of the suit for each individual.
datur igitur arbitrium hoc edicto, ut, si quidem uelit dicere noxios seruos, possit omnes dedere, qui participauerunt furtum: enimuero si maluerit aestimationem offerre, tantum offerat, quantum, si unus liber furtum fecisset, et retineat familiam suam.
Therefore, this edict grants an option, so that if indeed he wishes to declare the slaves liable, he can surrender all who participated in the theft; but if he prefers to offer the estimated value, he may offer only as much as if a single free man had committed the theft, and retain his household of slaves.
§47.6.1.1Haec autem facultas domino tribuitur totiens, quotiens ignorante eo furtum factum est: ceterum si sciente, facultas ei non erit data: nam et suo nomine et singulorum nomine conueniri potest noxali iudicio, nec una aestimatione, quam homo liber sufferret, defungi poterit: is autem accipitur scire, qui scit et potuit prohibere: scientiam enim spectare debemus, quae habet et uoluntatem: ceterum si scit, prohibuit tamen, dicendum est usurum edicti beneficio.
Moreover, this power is granted to the master as often as the theft is committed without his knowledge; but if it is committed with his knowledge, the power will not be granted to him. For he can be sued in a noxal action both in his own name and in the name of each individual slave, and he cannot discharge his liability by a single estimation, such as a free man would undergo. Now, a person is understood to have knowledge who knows and was able to prevent it; for we must look to knowledge that also involves volition. But if he knows, and yet prevented it, it must be said that he will enjoy the benefit of the edict.
§47.6.1.2Si plures serui damnum culpa dederint, aequissimum est eandem facultatem domino dari.
If several slaves have caused damage through fault, it is most equitable that the same power be granted to the master.
§47.6.1.3Cum plures serui eiusdem rei furtum faciunt et unius nomine cum domino lis contestata sit, tamdiu aliorum nomine actio sustineri debebit, quamdiu priore iudicio potest actor consequi, quantum consequeretur, si liber id furtum fecisset,
When several slaves commit theft of the same thing, and joinder of issue has been effected with the master in the name of one of them, the action in the name of the others must be suspended for as long as the plaintiff can obtain in the prior action as much as he would have obtained if a free man had committed that theft.