If he is ignorant or uncertain of this, and therefore sues the borrower, and then subsequently learns the true state of the case, and wishes to have recourse to an actio of theft, he will be permitted to sue the thief without any difficulty being thrown in his way, for it was in ignorance of the real fact that he sued the borrower; unless, indeed, his claim has been satisfied by the borrower, for then the thief is quite free from any actio of theft on the part of the owner, but the borrower takes the place of the owner in the power of bringing this actio.
On the other hand, it is very evident that if the owner originally brings an actio commodati, in ignorance that the thing has been stolen, and, afterwards learning this, prefers to proceed against the real thief, the borrower is thereby entirely freed, whatever may be the issue of the actio against the thief; as in the previous case, the thief would be freed as against the lender, whether the borrower was wholly or only partially able to satisfy the claim against him.
17. A depository is not answerable for the safe-keeping of the thing deposited, but is only answerable for wilful wrong; therefore, if the thing is stolen from him, as he is not bound by the contract of deposit to restore it, and has no interest in its safety, he cannot bring an actio of theft, but it is the owner alone who can bring this actio.
18. It should be observed that the question has been asked whether, if a person under the age of puberty, takes away the property of another, he commits a theft. The answer is that it is the intention that makes the theft; such a person is only bound by the obligation springing from the delictum if he is near the age of puberty, and consequently understands that he commits a crime.
19. The actio of theft, whether brought to recover double or quadruple, has no other object than the recovery of the penalty. For the owner has also a means of recovering the thing itself, either by a vindicatio or a condictio. The former may be brought against the possessor, whether the thief or anyone else; the latter may be brought against the thief or the heir of the thief, although not in possession of the thing stolen.
II. Goods Taken by Force.
A person who takes a thing belonging to another by force is liable to an actio of theft, for who can be said to take the property of another more against his will than he who takes it by force? And he is therefore rightly said to be an improbus fur.
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