14. Hence, a creditor may bring this actio if a thing pledged to him is stolen, although his debtor is solvent, because it may be more advantageous to him to rely upon his pledge than to bring an actio against his debtor personally; so much so, that although it is the debtor himself that has stolen the thing pledged, yet the creditor can bring an actio of theft.
15. So, too, if a fuller receives clothes to clcan, or a tailor receives them to mend for a certain fixed sum, and has them stolen from him, it is he and not the owner who is able to bring an actio of theft, for the owner is not considered as interested in their safety, having an actio locati, by which he may recover the thing stolen against the fuller or tailor. But if a thing is stolen from a bona fide purchaser, he is entitled, like a creditor, to an actio of theft, although he is not the proprietor.
But an actio of theft is not maintainable by the fuller or tailor unless he is solvent, that is, unless he is able to pay the owner the value of the thing lost; for if the fuller or tailor is insolvent, then the owner, as he cannot recover anything from them, is allowed to bring an actio of theft, as he has in this case an interest in the safety of the thing. And it is the same although the fuller or tailor is partially solvent.
16. What we have said of the fuller and tailor is applied by the ancients to the borrower. For, as the fuller by accepting a sum for his labor makes himself answerable for the safe-keeping of the thing, so does a borrower by accepting the use of the thing he borrows.
Actio commodati against
But our wisdom has introduced in our decisions an improvement on this point, and the owner may now bring an actio commodati against the borrower, or of theft against the thief; but when once his choice is made, he cannot change his mind and have recourse to the other actio. If he elects to sue the thief, the borrower is quite freed; if he elects to sue the borrower, he cannot bring an actio of theft against the thief, but the borrower may, that is, provided that the owner elects to sue the borrower knowing that the thing has been stolen.
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