1Ad Dig. 13,1,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 453, Note 8.Ulpianus, On Sabinus, Book XVIII. Where property is stolen, suit for its recovery can be brought by the owner alone.

2Pomponius, On Sabinus, Book XVI. Both insane persons and infants are liable to an action based on theft where they have become necessary heirs, although suit cannot be brought against them personally.

3Paulus, On Sabinus, Book IX. Where a slave is sued in an action based on theft, it is certain that damages can be claimed to the amount of the interest of the plaintiff; as, for instance, where he was appointed heir, and his master may be in danger of losing the estate; and Julianus is of this opinion. Moreover, if the action is brought for a slave who is dead, the plaintiff will obtain the value of the estate.

4Ad Dig. 13,1,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 359, Note 14.Ulpianus, On Sabinus, Book XLI. Where a slave or a son under paternal control commits a theft, an action can be brought against the owner of the slave for whatever came into his hands; and with respect to the remainder, the owner can surrender the slave by way of reparation.

5Paulus, On Sabinus, Book IX. An action arising from theft can be brought against a son under paternal control, for no one is ever liable to an action of this kind but the party who committed the theft or his heir.

6Ad Dig. 13,1,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 453, Note 5.Ulpianus, On the Edict, Book XXXVIII. Hence, even where a theft is committed with the assistance and advice of another party, the latter will not be liable to this action, although he will be to an action for theft.

7The Same, On Sabinus, Book XLII. Where a party has made good the loss as a thief, it is perfectly certain that this is no bar to an action for recovery of the property; for by payment of the loss the right of action for theft is extinguished, but not the right of action for recovery of the stolen property. 1The action for theft is brought for the lawful penalty, but the action for recovery for the property itself; and the result is that neither the right of action for theft is lost by the one for recovery nor the action for recovery by that of theft. Therefore, a party who is the victim of a theft has a right of action for theft, a right of action for damages, and a right of action for recovery, and he is also entitled to an action for production. 2The action for the recovery of stolen property, because it involves proceedings to obtain the property itself, renders the heir of the thief also liable, and not only while the slave who was stolen is living, but also after his death. Where, however, the slave who was stolen lost his life while in possession of the heir of the thief—or even when he was not in his possession—after the death of the thief; it must be said that the action will continue to lie against the heir. What we have stated with reference to the heir is equally applicable to all other successors.

8The Same, On the Edict, Book XXVII. In the case of stolen property suit for recovery can be brought for the articles themselves; but can this be done only so long as they still exist, or where they have ceased to be in existence? If, indeed, the thief has surrendered them, then there is no doubt that suit for their recovery cannot be brought; but if he did not surrender them, a right of action for the recovery of their value still remains, for the articles themselves cannot be delivered. 1Ad Dig. 13,1,8,1ROHGE, Bd. 3 (1872), S. 96: Die allein für den Fall des furtum gegebene Vorschrift läßt keine analoge Ausdehnung auf nicht erfüllte Lieferungsverträge zu.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 280, Note 15.Where an action is brought for the recovery of stolen property, the question arises at what time the appraisement of its value should be made? It is, however, established that the time must be considered when the property was of the greatest value it ever possessed, and especially since a thief will not be released by giving up property which is deteriorated; for a thief is considered to be always in default. 2Finally, it must be said that the profits are also included in this action.

9The Same, On the Edict, Book XXX. In a suit for the recovery of stolen property, the party is liable not only for the amount which came into his hands, but also for all of it, if he is the sole heir; but where he is heir to a share, he is liable to the same proportion of such a share in the stolen property as he is entitled to in the estate.

10The Same, On the Edict, Book XXXVIII. A thief can be sued for the recovery of stolen property whether he is a manifest thief or a non-manifest one. A manifest thief, however, will only be liable to an action for recovery where the possession of the property stolen has not been obtained by the owner; for no one is liable to a suit for recovery after the owner has taken possession of the property. Therefore, Julianus, in order that he may proceed with the discussion of the action for recovery in the case of a manifest thief, supposes that the thief, after being caught, has either killed, broken to pieces, or spilled what he had wrongfully appropriated. 1A person also who is liable for robbery with violence, (so Julianus states in the Twenty-second Book of the Digest), can be sued in an action for the recovery of the property. 2Ad Dig. 13,1,10,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 171, Note 2.There is ground for an action for recovery only so long as the ownership of the property has not been lost to the proprietor by his own act; and therefore, if he transfers it to another, he cannot bring suit for its recovery. 3Wherefore Celsus states in the Twelfth Book of the Digest, that if the owner bequeaths the stolen property to the thief absolutely, the heir cannot bring an action against him to recover it; and where the bequest was not made to the thief himself but to another, the same rule is applicable, and an action for recovery will not lie, as the ownership is lost by the act of the testator; that is to say of the owner.

11Paulus, On the Edict, Book XXXIX. Nor can the legatee himself bring a personal action, for this is only available by the person whose property has been stolen or by his heir; but the legatee has a right to recover property which was bequeathed to him by means of another action.

12Ulpianus, On the Edict, Book XXXVIII. Consequently Marcellus very properly states in the Seventh Book, that if the property stolen still remains yours you can bring a personal action to recover it; but if you lose the ownership in some other way than by your own act, you can likewise bring suit to recover it. 1Therefore he very aptly says that where the property is held in common, it makes a difference whether you instituted proceedings against your co-owner by an action for partition, or he brought suit against you, and if you instituted proceedings for this purpose you will lose the right to bring a personal action for recovery, but if he did so, he will still retain that right. 2Neratius, in the Books of Parchments, states that it is held by Aristo that he to whom property had been pledged can, if it should be stolen, bring an action for an uncertain amount of damages.

13Ad Dig. 13,1,13Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 187, Note 3.Paulus, On the Edict, Book XXXIX. Where cups have been made out of stolen silver, Fulcinius says that a personal action can be brought, and therefore in the proceedings for their recovery an estimate should be made of the value of any engraving which was done at the expense of the thief; just as where a slave-child is stolen and grows up, an estimate is made of his value when grown, even though he was reared under the care and at the expense of the thief.

14Julianus, Digest, Book XXII. Ad Dig. 13,1,14 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 361, Note 3.Where a stolen slave has been bequeathed under some condition, then, as long as the condition is pending, the heir will have a right of action for his recovery, but if the condition should be fulfilled after issue has been joined, the case must be dismissed; just as if the same slave had been directed by the testator to be free under a certain condition, and the condition was complied with after issue had been joined; for the plaintiff is no longer interested in securing the slave, and the property has ceased to be his without any fraudulent act on the part of the thief. Where judgment is rendered while the condition was pending, the judge must make an estimate of the sum the slave would have been worth if a purchaser had been found. 1In this action, however, the plaintiff is not obliged to furnish security to the party who is sued. 2Where an ox is stolen and killed, a personal action for recovery can be brought by the owner for the ox, the hide, and the flesh; that is, where the hide and the flesh have been handled in stealing, and suit to recover the horns may also be brought. Where, however, the owner obtains the value of the ox by a personal action for recovery, and afterwards brings a similar suit for any of the things above mentioned, he can undoubtedly be barred by an exception. On the other hand, if he should bring suit for the hide and recover its value, and then sue to recover the ox, and the thief tenders the value of the ox after deducting the value of the hide, the plaintiff will be barred by an exception on the ground of fraudulent intent. 3Ad Dig. 13,1,14,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 187, Note 3.The same rule applies where grapes are stolen, for the must and the grape-stones can be recovered by a personal action.

15Celsus, Digest, Book XII. Where a slave steals from another party, he will be liable for theft in his own name if he becomes free; but a personal action for recovery cannot be brought against him unless he handled the property after he was free.

16Pomponius, On Quintus Mucius, Book XXXVIII. Where anyone commits a theft by using something which was lent to him or deposited with him, he can be compelled to account for doing so by a personal action for recovery on the ground of theft also, and this differs from the action to recover property loaned, because, even if the property had been destroyed without his malice or negligence, he will, nevertheless, be liable to a personal action for recovery; while in the action to recover property loaned he will not readily be held liable, except where he was guilty of negligence, and in an action on deposit he would not be liable at all unless malicious intent was established.

17Papinianus, Questions, Book X. It makes little difference, so far as the loss of the right of action to recover is concerned, whether, after a slave had been stolen, an offer is made to return him, or whether the case is placed under a different class or a different species of obligation; for it does not matter to me whether the slave is present or not, as the default which arose from the theft is disposed of by a kind of assignment of the claim.

18Scævola, Questions, Book IV. Where a party knowingly receives money which is not due, since this is the same as a theft, it should be considered whether, when an agent makes payment with his own money, he does not commit a theft upon himself? Pomponius says in the Eighth Book of the Epistles, that the agent has a right of action for recovery based on theft; and that I, also, have such a right, if I ratify the payment of money which is not due; but where one action is brought, the right to bring the other is extinguished.

19Paulus, On Neratius, Book III. Julianus says, with reference to a daughter who removed property belonging to her husband, that a personal action for recovery should be granted against her father to the extent of her peculium.

20Tryphoninus, Disputations, Book XV. Suppose a thief is prepared to defend a personal action brought against him for the recovery of stolen property; as long as the property exists I have a right to bring the action, but where it is afterwards destroyed, the ancient authorities held that the right still remained, because it was their opinion that where a man had, in the beginning, handled the property without the consent of the owner, he is always in default with reference to returning it, because he ought not to have removed it.