[MARCELLUS libro octauo digestorum. ] §47.6.5.prFamilia communis sciente altero furtum fecit: omnium nomine cum eo qui scit furti agi poterit, cum altero ad eum modum, qui edicto comprehensus est: quod ille praestiterit non totius familiae nomine, ab hoc socio partem consequeretur.
[MARCELLUS on the Digest, book 8] A common household has committed theft with the knowledge of one of the co-owners: in the name of all of them, an action for theft can be brought against the one who knows; against the other co-owner, it can be brought in the manner prescribed by the edict. As for what the former has paid, not in the name of the entire household, he would obtain a share from this partner.
et si seruus communis alterius iussu damnum dederit, etiam quod praestiterit alter, si modo cum eo quoque ex lege Aquilia uel ex duodecim tabulis agi potest, repetat a socio, sicuti cum communi rei nocitum est.
And if a common slave has caused damage by the order of one of them, even what the other has paid, provided that an action can also be brought against the former under the Aquilian law or the Twelve Tables, he may recover from his partner, just as when damage has been done to a common thing.
si ergo dumtaxat duos habuerim seruos communes, cum eo, quo non ignorante factum est, agetur utriusque serui nomine, sed non amplius consequetur a socio, quam si unius nomine praestitisset: quod si cum eo, quo ignorante factum est, agere uolet, duplum tantum consequetur.
Therefore, if indeed I have two common slaves, against the one with whose knowledge the act was done, an action will be brought in the name of both slaves, but one will not obtain more from the partner than if he had paid in the name of one slave; but if one wishes to bring an action against the one without whose knowledge the act was done, he will obtain only double.
et uideamus, an iam in socium alterius serui nomine non sit dandum iudicium, quemadmodum si omnium nomine socius decidisset: nisi forte hoc casu seuerius a praetore constituendum est nec seruorum conscio parcendum est.
And let us consider whether an action ought no longer to be granted against the partner in the name of the other slave, just as if the partner had settled in the name of all of them; unless perhaps in this case a stricter rule is to be established by the praetor, and no leniency is to be shown to the one who was aware of the slaves' deeds.