THE DIGEST OR PANDECTS. BOOK VI.
CONCERNING ACTIONS FOR THE RECOVERY OF SPECIFIC PROPERTY.
1. Ulpianus, On the Edict, Book XVI.
After actions which are open for the recovery of an entire amount, there
is added the action for the recovery of certain specific property.
(1) This action in rem for the recovery of specific property is
applicable to all movables, both animals and to such things as are destitute of
life, as well as to those where land is involved.
(2) By means of this action, however, no claim can be asserted for
persons who are free but over whom we have some control, as for instance,
children who are subject to paternal authority; hence proceedings instituted on
their account are either investigations by a magistrate, or interdicts, or
suits brought before the prætor; and as Pomponius says in the
Thirty-seventh Book: "Unless the party states the nature of his claim"; as
where he claims his son as belonging to him, or being under his control, in
accordance with the law of Rome. In this instance it seems to me, as well as to
Pomponius, that his method of procedure is proper, for he says that a party
can, under the law governing Roman citizenship bring an action for recovery
where he states the basis of his claim.
(3) By means of this action not only can specific property be recovered,
but, Pomponius, in the Twenty-fifth Book of Passages, says
that an action may be brought for a flock, and also for a herd of
cattle, and for a stud of horses, as well, and it may be said for all other
animals which are kept together in droves. It is sufficient if the flock itself
belongs to us, even though individual heads of the same may not be ours, for it
is the flock which is claimed, and not the individuals constituting the
2. Paulus, On the Edict, Book XXI.
Where equal numbers of a flock belong to two parties, neither of them
has a right to bring an action for the entire flock, nor even for half of it.
Where, however, one has a larger number than the other, so that if those that
do not belong to him are removed, he can still claim the flock, those which are
not his will not be included among those to be surrendered.
3. Ulpianus, On the Edict, Book XVI.
Marcellus states in the Fourth Book of the Digest, that a man had a
flock of three hundred head of which he lost one hundred, and purchased an
equal number of others from a person who owned them, or was the bona-fide
possessor, although they belonged to some one else; these animals also he
says will be included in the suit for recovery; and even where there are no
others remaining, except such as have been purchased, he can still include them
in his suit to recover the flock.
(1) The objects which compose the equipment of a vessel must be sued for
separately, and suit for the boat belonging to the ship also must be brought in
the same manner.
(2) Pomponius says that where articles of the same description are so
confused and mingled that they cannot be detached and separated, an action must
be brought to recover, not all of them, but a portion of the same; as for
instance, where my silver and yours is melted into a single mass it will be our
common property; and either of us can bring an action for the recovery of an
amount proportionate to the weight which we own in said mass, even though it
may be uncertain to what weight each one of us is entitled.
4. Paulus, On the Edict, Book XXI.
In this instance an action can also be brought for the division of
common property, but a party will be liable to an action for theft as well as
to one for the production of property in court, if he fraudulently manages to
have the silver commingled; as in an action for the production of property the
amount of the value must be taken into consideration, and, in one for the
division of property in common or in one for recovery, the party whose silver
was greater in value will obtain the most.
5. Ulpianus, On the Edict, Book XVI.
Pomponius also says that where grain belonging to two persons was mixed
without their consent, each one of them will be entitled to an action in rem
for such an amount of the heap as appears to belong
to him; but, where the grain was mingled with their consent, it will
then be held to be in common, and an action for the division of property owned
in common will lie.
(1) He also says that if a mixture should be made of my honey and your
wine, some authorities think that this also becomes common property; but I
maintain the better opinion to be, (and he himself mentioned it) that the
mixture belongs to the party who made it; as it does not retain its original
character. Where, however, lead is mixed with silver, for the reason that it
can be separated it will not become common property, nor can an action for the
division of common property be brought; but an action in rem will lie
because the metals can be separated. But he says that, where they cannot be
separated, as for instance, where bronze and gold are mixed, suit for recovery
must be brought in proportion to the amount involved; and what was stated with
reference to the mixture of honey and wine will not apply, because though both
materials are mingled, they still remain.1
1 The Roman doctrine with reference to accessions was
accepted almost in its entirety by the old English jurists, who relied upon the
well-established principle: "Accessorium sequitur principale." Bracton
says: "Est et alia, que sit tantu humana natura operante, quæ sit p
adiunctione uni spiciei ad altera, eiusdem generis vel diversi, p applubatura
vel ferrilminatione, secundu qd' infra legitur, et ibi dicitur, que pars alteri
debet accrescere, Si aute p applubatura, minor cedit maiori vel
præciosiori: sed si neutra præciosior quilibz suu
"Literæ anim licet sint auræ perinde mebranis, chartisue
cedunt, sicut ea solo cedere solet quæ edificantur vel inseruntur. Sed in
picturis erit cotrariu." (Bracton, De Leg. et Consuet, Angliæ,
II, 3, 5.)
The rule is stated as follows in Fleta: "Adquiruntur etiam res nobis
per specificationem; ut si quis de aliena materia speciem aliquam sibi fecerit,
factor dominus erit speeiei. Est & alms modus adquirendi per confusionem;
confunduntur enim liquida, ut mel, oleum, vinum; confunduntur etiam solida,
sicut aurum, argentum, plumbum & ferrum. Et quod ex Us redigitur inter eos
commune erit sive separari possit sive non." (Fleta III, II, 14, 15.)
Under the Roman practice, the principal point always to be taken into
consideration was whether he who had added the property in question to his own
had, or had not acted in good faith. If it was established that he had been
guilty of fraud or dishonesty, he was liable to an action of theft; otherwise
— if the complainant had not given his consent — he was required to
make good the amount by which it was proved that he had profited. In the kind
of accession designated specificatio, which occurred where a new
substance or species was formed by the addition or mingling of something
belonging to another with that of the possessor, the latter became the sole
proprietor of the article, if its constituent parts could not be separated and
readily restored to their original condition.
It is stated by Blackstone that a difference exists between the Civil
and the Common Law with reference to compensation, where one party fraudulently
and without the other's knowledge mixes the articles in such a way that the
separate ownership can no longer be determined. In a case of this kind, the
Civil Law, while permitting the injured party to possess the article as
proprietor, still concedes to the depredator a certain amount to indemnify him,
at least in part, for what he has forfeited by his misconduct. The Common Law,
however, is not so indulgent, but vests the entire ownership in him who was
deprived of his property without his acquiescence or knowledge. (Blackstone,
Commentaries on the Laws of England II, XXVI, 7.)
The statutes of the various States of the Union, for the most part,
follow the rules laid down by the Civil and the Common Law. In all instances of
accession the principles of natural equity are required to be diligently
observed, and especially the maxim, "Nemo ex alterius detrimento fieri debet
locupletari". — ED.
(2) He also states that where your stallion impregnated my mare, the
colt will not be yours but mine.
(3) With reference to a tree which was transplanted into the field of
another and threw out roots, Varus and Nerva granted an equitable action in
rem; for if it had not yet taken root, it would not cease to be mine.
(4) Where proceedings in rem are instituted, and the parties
agree with reference to the property sued for, but a mistake is made in the
name of the latter, it is held that the action is properly brought.
(5) Where there are several slaves of the same name, for instance,
several called Eros, and it is not apparent to which one the action refers,
Pomponius says that no decision can be rendered.
6. Paulus, On the Edict, Book VI.
Where anyone brings an action in rem, he is obliged to designate
the thing, and also to state that he brings suit for all, or for a portion of
the same; for the word "thing" does not mean something in kind, but a specific
article. Octavenus says with reference to this, that a party must state the
weight of raw material, and where the property is stamped, the number, and
where goods have been manufactured, the nature of the same.
(1) The dimensions must also be given when the article can be measured.
If we bring suit claiming that certain clothing is ours, or that it should be
delivered to us, are we obliged to state the number of the articles and the
color also? The better opinion is that both those things should be done; for it
would be a hardship to compel us to say whether our clothes are worn or
(2) A difficulty arises occasionally with reference to household
utensils, namely, whether it is only necessary to mention a dish, or whether we
must add whether it is square or round, plain or ornamented, for it is
difficult to insert these additions in the complaint; nor should the
requirements be so rigid, although in an action to recover a slave his name
should be mentioned, and also whether he is a boy or a grown man, and, by all
means, this should be done if there is more than one. But, if I am ignorant of
his name, I must make use of some description of him; as for example, that he
is a portion of a certain estate, or the son of a certain woman. In like
manner, where a man brings an action for land, he must state its name and where
it is situated.
7. The Same, On the Edict, Book XL
Where a man who offers to conduct the defence of an action for the
recovery of land, loses his case, he has, nevertheless, a well grounded right
of action to recover it from the possessor, so Pedius says.
8. The Same, On the Edict, Book XII.
Pomponius adopts the following opinion in the Thirty-sixth Book. If you
and I own a tract of land together, and you and Lucius Titius have possession
of it, I should not bring an action against you for both of the quarters, but
against Titius, who is not the owner, for the entire
half. It would be otherwise if both of you had possession of different
parts of the said tract; for then, undoubtedly, I would be compelled to bring
suit against you and Titius for your respective shares of the entire tract;
for, as parts of the land were severally held, a certain portion of them must
necessarily be mine; and therefore you yourself must bring an action against
Titius for a quarter of the same. This distinction does not apply to movable
property nor to a suit for the recovery of an estate; for in these instances
possession of property for a divided part cannot exist.
9. Ulpianus, On the Edict, Book XVI.
In this action, the duty of the judge would be to learn whether the
defendant is in possession or not; but it is not important under what title he
holds possession; for where I have proved the property to be mine, the
possessor will be required to surrender it unless he pleads some exception.
Certain authorities, however, and Pegasus among them, hold that the only kind
of possession involved in this action, is that which applies where an interdict
Uti possidetis or Utrubi is applied for; as he says that where
property is deposited with anyone, or loaned to him; or where he hired it; or
is in possession of the same to insure the payment of legacies or of a dowry;
or in behalf of an unborn child; or where security was not given for the
prevention of threatened injury; since none of these instances admit of
possession, an action for recovery cannot be brought. I think, however, that
suit can be brought against anyone who holds property and has the power to
10. Paulus, On the Edict, Book XXI.
When suit is brought for movable property, where is it to be delivered,
that is, if it is not actually in the hands of the possessor? It is not a bad
regulation where a possessor in good faith is the party sued, for the property
to be delivered either where it is situated, or where the action to recover it
is brought; but this must be done at the expense of the plaintiff, which has
been incurred through travel by land and sea, in addition to the cost of
11. Ulpianus, On the Edict, Book XVI.
Unless the plaintiff prefers that the property should be delivered at
his own expense and risk, where judgment is rendered; for then provision will
be made, with security, for delivery.
12. Paulus, On the Edict, Book XXI.
Where, indeed, the defendant is a possessor in bad faith who obtained
the property in some other place, the same rule applies; but if he removed it
from the place where issue was joined and took it elsewhere, he should, at his
own expense, deliver it at the place whence he removed it.
13. Ulpianus, On the Edict, Book XVI.
Not only must the property be delivered, but the judge must take into
account any deterioration which it may have sustained. Suppose,
for instance, that a slave is delivered who has been weakened, or
scourged, or wounded; the judge must then consider to what extent he may have
been diminished in value, although the possessor can be sued in an action under
the Lex Aquilia. Wherefore the question arises whether the judge ought
not to estimate the amount of damage caused, unless the right of action under
the Lex Aquilia is relinquished? Labeo thinks that the plaintiff is
obliged to give security that he will not bring suit under the Lex Aquilia;
and this opinion is the correct one.
14. Paulus, On the Edict, Book XXL
If, however, the plaintiff should prefer to make use of the action under
the Lex Aquilia, the possessor must be released from liability.
Therefore the choice is given the plaintiff of obtaining not triple, but double
15. Ulpianus, On the Edict, Book XVI.
Again, if the defendant delivers the slave after he has been scourged,
Labeo says that the plaintiff is also entitled to an action for injury.
(1) Where anyone sells property through necessity, perhaps it will be
the duty of the judge to relieve him so that he will only be compelled to
deliver the purchase-money; for if he has gathered the crops and sold them to
avoid their being spoiled; in this instance he will not be compelled to deliver
anything more than the price.
(2) Moreover, if there was a field for which suit was brought, and it
was assigned to soldiers, in consideration of a small sum paid to the
possessor, must the latter deliver this also? It is my opinion that he must do
(3) Where suit is brought for a slave, or for some animal which died
without its death being caused by the malice or negligence of the possessor,
several authorities hold that the price should not be paid. The better opinion,
however, is that where the plaintiff would have sold the property if he had
obtained it, then the value ought to be paid if the party was in default, for
if he had delivered it, the other might have sold it and have profited by the
16. Paulus, On the Edict, Book XXI.
Undoubtedly, however, even where a slave dies, some decision must be
rendered with reference to profits and the offspring of a female slave, and a
stipulation entered into to provide for eviction; for the possessor, after
issue has been joined, is certainly not liable for misfortune.
(1) It is not understood to be a case of negligence where the possessor
dispatched a ship, which is the subject of litigation, across the sea at a
suitable time, even though she may have been lost; unless he committed her to
the care of incompetent persons.
17. Ulpianus, On the Edict, Book XVI.
Julianus says in the Sixth Book of the Digest, that if I purchase a
slave from Titius, who belonged to Mævius, and afterwards, when
Mævius brings an action against me to recover him, I sell him, and
the purchaser kills him, it is but just that I should pay the price received
for him to Mævius.
(1) Julianus also states in the same Book, that if the possessor is in
default in delivering a slave, and the latter dies, an account of the profits
which accrued up to the time when the case was decided must be taken into
consideration. Julianus also says that not only the profits must be
surrendered, but everything connected with the property itself; and therefore
the offspring of a female slave, as well as the profits derived from the
latter. So far does this principle extend, that Julian states in the Seventh
Book, that if the possessor should acquire the right of action through the
slave under the Lex Aquilia, he should be compelled to assign it.
But if the possessor should fraudulently have relinquished possession,
and someone has wrongfully killed the slave, he can be compelled either to pay
the value of the slave, or to assign his own right of action, whichever the
plaintiff may prefer. He must also surrender any profits which he may have
obtained from another possessor, as he cannot realize anything through a slave
the title of whom is in litigation. He is not, however, obliged to surrender
any profits which have accrued during the time when the slave was in possession
of the party who recovered him in a suit. What Julianus states concerning an
action under the Lex Aquilia is applicable where the possessor has
acquired a right to the slave by usucaption, after issue has been joined,
because he then begins to have a perfect title.
18. Gaius, On the Provincial Edict, Book VII.
Where the possessor has obtained a right to a slave through usucaption,
after issue has been joined, he must give him up and furnish security to
indemnify the plaintiff against fraud, so far as he is concerned; for there is
danger that he may have either pledged him or manumitted him.
19. Ulpianus, On the Edict, Book XVI.
Labeo says that security must also be given by the defendant that
everything has been properly transacted with reference to the property in
question; for example, where he has furnished security for the prevention of
20. Gaius, On the Provincial Edict, Book VII.
Again, the possessor must also deliver anything he may have obtained
through the slave after issue has been joined, but not what he acquired by
means of his own property, in which inheritances and legacies obtained by him
through the slave are included; for it is not sufficient for his body alone to
be delivered, but it is necessary that everything connected with the property
should also be given up; that is to say, that the plaintiff should have
everything he would have come into possession of if the slave had been
delivered to him at the time when issue was joined. Therefore, the offspring of
a female slave must be surrendered, even though they may have been born after
sessor acquired ownership of the mother by usucaption; that is to say,
after issue was joined, in which instance delivery and the provision of
security against fraud must take place with reference to the offspring as well
as the mother.
21. Paulus, On the Edict, Book XXI.
Where a slave runs away from a bona-fide possessor, we may ask
whether the slave was such a one as ought to have been guarded? For if he
seemed to have been of good reputation so that he should not have been kept in
custody, the possessor must be released from liability; but if, in the
meantime, he has obtained ownership of him by usucaption, he must assign his
rights of action to the plaintiff, and surrender the profits obtained while he
was in possession of the slave. If, however, he had not yet obtained ownership
of him by usucaption, he must be released without giving security, so that he
need not bind himself to the plaintiff to pursue the slave; as the plaintiff
himself can do so; but, in the meantime, while the slave is in flight, can he
become his owner through usucaption? Pomponius says in the Thirty-ninth Book of
the Edict, that this is not unjust.
If, however, the slave should have been guarded, the possessor will be
liable for the slave; so that, even if he had not acquired ownership of him by
usucaption, the plaintiff must assign to him his rights of action. Julianus,
however, thinks in instances of this kind, that where the possessor of the
slave is released from liability on account of his flight, although he is not
compelled to furnish security to pursue him, he must give a bond that if he
should secure him, he will give him up. Pomponius approves this opinion in the
Thirty-fourth Book of Various Passages, and it is the better one.
22. Ulpianus, On the Edict, Book XVI.
Where the slave escapes through the fraud of the possessor, judgment
shall be rendered against him as if he was in possession.
23. Paulus, On the Edict, Book XXI.
A person is entitled to an action in rem where he has become the
owner of property either by the Law of Nations, or by the Civil Law.
(1) Sacred and religious places cannot be sued for by actions in rem,
as if they were the property of individuals.
(2) Where anyone attaches to his own property something which belongs to
another, so that it becomes a part of it; as for instance, where anyone adds to
a statue of his own an arm or a foot which belongs to another, or a handle or a
bottom to a cup, or a figure in relief to a candlestick, or a foot to a table,
the greater number of authorities very properly state that he becomes the owner
of the whole, and that he truthfully can say that the statue or the cup is
(3) Moreover, anything which is written on my paper or painted on my
board, immediately becomes mine; although certain authorities have thought
differently on account of the value of the painting; but where one thing can
not exist without the other, it must necessarily be given with it.
(4) Wherefore, in all these cases in which my property draws the
property of another to itself by superiority, it becomes mine; and if I bring
suit to recover it, I can be compelled by an exception on the ground of fraud,
to pay the increased value of the article.
(5) Again, whatever is joined or added to anything else forms part of it
through accession, and the owner cannot bring suit to recover it so long as the
two articles remain attached; but he can institute proceedings for them to be
produced in court, in order that they may be separated, and the suit for
recovery be brought, except of course, in the case stated by Cassius, where
articles are welded together; for he says that if an arm is welded to the
statue to which it belongs, it is absorbed by the unity of the greater part,
and that anything which has once become the property of another cannot revert
to its former owner, even if it should be broken off.
The same rule does not apply to anything that is soldered with lead;
because welding causes a mingling of the same material, but soldering does not
do this. Therefore, in all these instances, an action in factum is
necessary; that is where one for production, or in rem does not lie. But
with reference to articles which consist of distinct objects, it is evident
that the separate parts retain their peculiar character; as for instance,
separate slaves and separate sheep; and therefore I can bring suit for the
recovery of a flock of sheep, as such, even though your ram may be among them,
and you yourself can bring suit to recover your ram.
The rule is not the same where an article consists of coherent parts,
for if you attach the arm of some other person's statue to a statue of mine, it
cannot be said that the arm is yours, because the entire statue is embraced in
(6) Where the building materials of one person have been used in the
house of another, an action will not lie to recover them on account of the Law
of the Twelve Tables; nor can suit be brought for the production, except
against the party who knowingly used the materials of another in the
construction of his own house; but recourse must be had to the ancient action
entitled de tigno juncto, which is for double damages, and is derived
from the Law of the Twelve Tables.
(7) Moreover, where anyone builds a house on his own ground with stone
belonging to another, he can indeed bring suit to recover the house; but the
former owner can also bring an action to recover the stone, if it is taken out,
even though the house may have been demolished after the time necessary for
usucaption has elapsed, subsequent to the date when the house comes into the
possession of a bona-fide purchaser; for the individual stones are not
acquired by usucaption, even if the building becomes the property of another
through lapse of time.
24. Gaius, On the Provincial Edict, Book VII.
A party who intends to bring an action for the recovery of property
should consider whether he can obtain possession of it by means of some
interdict; because it is far more convenient for he himself to be
in possession, and to compel his adversary to assume the burden of
plaintiff, than to bring suit himself while the latter is in possession.
25. Ulpianus, On the Edict, Book LXX.
Where a person undertakes the defence of a case without any good reason,
as he is not in possession and has not acted fraudulently to avoid being in
possession, Marcellus says he cannot have the case dismissed, if the plaintiff
is not informed of the facts, and this opinion is the correct one; this,
however, is on the presumption that issue has been joined. But where a party,
before issue is joined, avers that he is not in possession when in fact he is
not, and does not deceive the plaintiff and departs, he cannot be held to have
undertaken to defend the case.
26. Paulus, On Plautius, Book II.
For if the plaintiff is aware of the facts, then he is not deceived by
another, but by himself; and therefore the defendant will be discharged.
27. The Same, On the Edict, Book XXI.
But if, when I wish to sue Titius, anyone should state that he is in
possession, and thereupon volunteers in defence of the case, and I prove this
by testimony during the trial, judgment must unquestionably be rendered against
the other party.
(1) A party should be in possession not only when issue is joined, but
also when the decision is rendered. If he was in possession at the time that
issue was joined, but lost it without fraud on his part when the case was
decided, he should be released from liability. Again, if he was not in
possession at the time issue was joined, but had possession when the case was
decided, the opinion of Proculus must be accepted, namely: that, by all means,
a decision must be rendered against him, and hence all profits from the time he
acquired possession will be included in the judgment.
(2) Where a slave for whom suit is brought has become depreciated in
value through the malice of the possessor, and afterwards dies, not through the
fault of the former, but from some other cause; no estimate shall be made of
the amount of his diminution of value, because it makes no difference to the
plaintiff. This, however, has reference only to the action in rem; for
the right of action under the Lex Aquilia continues.
(3) A party who, before issue was joined, has fraudulently relinquished
the possession of property, is liable to an action in rem; and this may
be inferred from a decree of the Senate by which it is provided, as we have
already stated, that fraud previously committed is included in the suit for the
recovery of an estate; for if fraud which has been committed is embraced in
such an action, which itself is one in rem, hence it is absurd for fraud
already committed to be included in an action in rem for the recovery of
some specific article.
(4) Where a father or the owner of a slave is in possession through his
son or through the slave, and either of the latter should be absent
at the time when judgment is rendered, without the fault of the said
father or owner; time should either be granted, or security be furnished for
the delivery of possession.
(5) When the possessor incurs any expense with reference to the property
for which an action is brought, before issue is joined, an account should be
taken of said expense by means of an exception on the ground of fraudulent
intent; if the plaintiff perseveres in the action to recover his property,
without refunding the expenses. The same rule will apply where the possessor
defends a slave in a noxal action, and having lost the case, pays the damages;
or, by mistake, builds a house on unoccupied land which belongs to the
plaintiff, unless the latter will permit him to remove the building.
Certain authorities have stated that this also should be done by the
Court that hears a case for the recovery of a dowry which involves land given
to the wife. But if you give instruction to your slave while he is in your
possession, Proculus thinks that this rule should not be observed; because I
ought not to be deprived of my slave, and the same remedy cannot be applied
which we have referred to above in the case of the land.
28. Gaius, On the Provincial Edict, Book VII.
Suppose, for example, that you have taught him to be an artist, or a
copyist; it is held that no estimate can be obtained by application to the
29. Pomponius, On Quintus Mucius, Book XXI.
Unless you are holding the slave for sale, and would get a better price
for him on account of his profession;
30. Gaius, On the Provincial Edict, Book VII.
Or the plaintiff has been previously notified to pay the expense, and
he, seeking to avoid this, an exception on the ground of fraud has been
interposed by the defendant.
31. Paulus, On the Edict, Book XXI.
But where a demand is made for profits in the case of a slave for whose
recovery an action is brought, the puberty of the slave must not only be
considered, but also what services he could render, even if he had not arrived
at that age. It would, however, be dishonorable for the plaintiff to demand an
accounting for the profits which might have been obtained through the skill of
the slave, because he obtained this at the expense of the possessor.
32. Modestinus, Differences, Book VIII.
If, however, he taught the slave some trade, then, after the latter has
reached the age of twenty-five years, the expenses incurred in doing so may be
33. Paulus, On the Edict, Book XXL
Not only the profits which have been collected, but also those which
could honestly have been collected, must be estimated; and therefore,
if the property which is the subject of litigation should be lost either
through the fraud or negligence of the possessor, Pomponius thinks that the
opinion of Trebatius is the better one, namely, that an account must be taken
of the profits to the extent they would have existed if the property had not
been destroyed, that is to say, until the time the decision was rendered; and
this view is also accepted by Julianus.
Under this rule, if the owner of the mere property brings an action and
the usufruct is lost through delay, an account of the profits must be
calculated from the time when the usufruct was separated from the mere
34. Julianus, Digest, Book VII.
The same rule applies where land is added to other land by alluvion.
35. Paulus, On the Edict, Book XXI.
And, on the other hand, if the plaintiff should bequeath the usufruct of
certain property, after issue has been joined, some authorities very properly
are of the opinion that no account of the profits should be taken after the
time when the usufruct was separated from the property.
(1) Where I bring an action for land which does not belong to me, and
the judge states in his decision that it is mine, he should also render
judgment against the possessor for the profits; for he must be ordered to
deliver the profits by the same mistake, as the plaintiff should not relinquish
the profits for the benefit of the possessor, who has lost the case; otherwise,
as Mauricianus says, the judge cannot decide that delivery must be made of the
property; and why should the possessor hold what he could not have held if he
had relinquished possession at once?
(2) A plaintiff who has accepted the estimate of property is not
compelled to secure the possessor against eviction; for the possessor must
blame himself if he did not surrender the property.
(3) Where property cannot be divided without being ruined, it is
established that one can bring an action for a share of the same.
36. Gaius, On the Provincial Edict, Book VII.
When a person institutes proceedings in an action for recovery, in order
that he may not do so in vain, he ought to inquire whether the defendant
against whom he brings the action, is the possessor or has fraudulently
(1) A party who is sued in rem, may also have judgment rendered
against him on the ground of negligence; and the possessor of a slave against
whom an action has been brought for his recovery, is guilty of negligence if he
permits him to appear in the arena, and he is killed; and also where the slave
was a fugitive, and he did not secure him, and he escaped; or where suit is
brought for a vessel, and he dispatched it in bad weather, and it was lost by
37. Ulpianus, On the Edict, Book XVII.
Julianus says in the Eighth Book of the Digest, that if I build on the
land of another of which I am the bona-fide purchaser, but do so at a
time when I knew that the land belonged to another, we should see whether I am
not entitled to an exception; unless someone may say that I am entitled to an
exception on the ground that I anticipated a loss. I think, however, that such
a party has no right to an exception; for, as soon as he was certain that the
land belonged to another he should not have erected the building; but
permission should be granted him to remove the building which he erected, if he
does so without loss to the owner of the land.
38. Celsus, Digest, Book HI.
Upon the land of another, which you purchased without investigation, you
built or planted, and you were then evicted. In this instance, a good judge
will decide in different ways in accordance with the legal condition of the
parties, and the circumstances of the case. Suppose the owner to have done the
same thing, then, in order to recover his land, he must reimburse you for your
expenses, but only to the amount by which it is rendered more valuable; and if
what was added to it amounts to more than the purchase-money, he will be
required to pay only what was expended. Suppose that the party is poor, and if
he is compelled to pay this he must sacrifice his household goods and the tombs
of his ancestors; it will then be sufficient for you to be permitted to remove
as much as you can of what you have built, provided that the land will not be
rendered worse than it would have been if no building had been erected upon it
in the first place. We, however, decided that if the owner is ready to pay you
a sum equal to what the possessor would have had if these things were removed,
he shall have power to do so. But you are not to be permitted to act
maliciously, as, for instance, to scrape off plaster which you have put on, or
to deface paintings, which would have no effect except to cause annoyance.
Suppose that the owner is a party who expects to sell the property as soon as
he recovers it; then, unless he delivers the amount which we have already
stated he must deliver in the first example, the damages for which judgment has
been rendered against you must be paid after this is deducted.
39. Ulpianus, On the Edict, Book XVII.
Contractors who build with their own materials immediately transfer the
ownership of the same to those who own the land on which they erect the
(1) Julianus very properly says in the Twelfth Book of the Digest, that
a woman who gives land in pledge as security for the debt of another, can
recover the same by an action in rem, even though the land has been sold
by the creditor:
40. Gaius, On the Provincial Edict, Book VII.
Because the creditor is held to have sold a pledge which was void.
41. Ulpianus, On the Edict, Book XVII.
Where anyone buys property under the condition that if some other party
offers more, he will relinquish the purchase, as soon as the condition is
fulfilled he can no longer avail himself of an action in rem; but where
land has been transferred to a party under such a condition, he can make use of
an action in rem to recover it before an increased price is offered, but
he cannot do so afterwards.
(1) Where a slave or the son of a family sells and delivers a tract of
land to me, I am entitled to an action in rem to recover the same, if he
had the free administration of his peculium. The same rule applies where
a slave delivers the property of his master with the consent of the latter;
just as where an agent makes a sale of, or delivers, property with the consent
of his principal, I will be entitled to an action in rem.
42. Paulus, On the Edict, Book XXVI.
Where a suit in rem is brought, the heir of the possessor —
if he himself is not in possession — will be released; still, if any
personal liability of the deceased has been incurred, this must, by all means,
be included in the judgment.
43. The Same, On the Edict, Book XXVII.
Whatever is attached to religious objects is itself religious; and
therefore stones which have formed part of a religious structure cannot be
recovered, even after they have been removed; the plaintiff, however, will be
entitled to extraordinary relief by an action in factum, and he who
removed the stones will be compelled to restore them. But where, stones
belonging to another have been employed for building a monument without the
consent of the owner, and before the monument has been used they are detached
and removed to be employed elsewhere, they can be recovered by the owner. And
even if they have been removed to be replaced in the same structure, it is
established that the owner of the same can, in like manner, recover them.
44. Gaius, On the Provincial Edict, Book XXIX.
Fruit hanging on a tree is considered to be part of the soil. •
45. Ulpianus, On the Edict, Book LXVIII.
Where a slave is restored to the plaintiff after an action has been
brought for his recovery, and this was done by a bona-fide possessor, I
think that he should give security against malice alone, but other possessors
should give security against negligence as well; and a bona-fide
possessor must be included among them, after issue has been joined.
46. Paulus, On Sabinus, Book X.
Where property for which suit is brought by an action in rem is
estimated at the amount that the plaintiff makes oath to in court, the
ownership of the same at once passes to the possessor; for I am con-
sidered to have compromised and arranged the matter with him, on the
basis which he himself established.
47. The Same, On Plautius, Book XVII.
This is the case where the property is at hand, if it is elsewhere, it
passes, when the possessor obtains it by the consent of the plaintiff; and
therefore it is not contrary to the rule that the estimate of the judge should
only be made where the plaintiff gives security, "that nothing will be done by
him to prevent possession of the property being delivered".
48. Papinianus, Opinions, Book II.
Where expenses have been incurred by a bona-fide possessor with
reference to a tract of land which it is apparent belongs to another; he cannot
bring an action to recover said expenses from anyone who presented him with the
land, or from the owner of the same; but, through the aid of an exception on
the ground of fraud, he can be reimbursed for said expenses, by order of Court,
on equitable considerations; that is to say, where the expenses exceed the
amount of the profits collected before issue was joined, for where a set-off is
permitted, the owner will be required to return the amount to which the
expenses exceed the profits, if the land has been benefited.
49. Celsus, Digest, Book XVIII.
I am of the opinion that the land on which a house stands is a portion
of the same; and not merely a support, as the sea is to ships.
(1) Whatever remains of my property, which I have the right to recover
at law is mine.
50. Callistratus, Monitory Edict, Book II.
Where a field belongs to anyone by the right of purchase, proceedings
cannot properly be instituted by an action of this kind before the field has
been delivered, and possession of the same lost.
(1) An heir may properly bring suit for what is due to the estate, even
though he may not yet have obtained possession of it.
51. Pomponius, On Sabinus, Book XVI.
Where an action in rem is brought and a decision is rendered
against the heir of the possessor, the negligence and fraud of the heir in the
matter must be taken into consideration in rendering judgment.
52. Julianus, Digest, Book LV.
Where the possessor of a tract of land fraudulently relinquished
possession of the same before issue was joined, his heirs cannot be compelled
to undertake the defence of the action in rem; but an action in
factum should be granted against them by which they may be forced to
surrender the amount to which they have profited by means of the property.
53. Pomponius, On Sabinus, Book XXXI.
Where the possessor of land has cultivated or planted it, and the land
is subsequently recovered by a suit, he cannot remove what he planted.
54. Ulpianus, Opinions, Book VI.
There is a great difference between the duties of an advocate and the
defence of one's own case; and where a party subsequently ascertains that
certain property belongs to him, he will not lose his ownership of the same,
because, while ignorant of the fact, he aided another who was bringing suit to
55. Julianus, Digest, Book LV.
Where the possessor of land dies before issue is joined, leaving two
heirs, and an action to recover the entire estate is brought against one of
them, who was in possession, there is no doubt that judgment must be rendered
against him for all of it.
56. The Same, Digest, Book LXXVIII.
A suit for the recovery of a peculium will not be allowed,
as it is in the case of a flock; but a party to whom a peculium was
bequeathed must bring an action for the separate articles composing the
57. Alfenus, Digest, Book VI.
A party against whom a suit was brought for the recovery of land, was
again sued by another for the same land; and the question arose if he should
deliver the land to either of the plaintiffs by order of court, and afterwards
judgment should be rendered in favor of the other plaintiff, how would he avoid
sustaining a double loss? I answered that whichever judge decided the case
first must order the land to be delivered to the plaintiff under the condition
that he would execute a bond or give security to the possessor that if the
other party recovered the land, he would deliver the same.
58. Paulus, Epitomes of The Digest of Alfenus, Book HI.
Where a man was sued for the recovery of a slave and also for a theft
committed by the said slave; the question arose what it would be necessary for
him to do if judgment was rendered against him in both cases, if the slave was
recovered from him in the first place? The ' answer was that the judge should
not compel him to deliver the slave, unless security was previously furnished
that where any damages were paid by him he should be fully reimbursed for them,
because he had joined issue in a case involving the same slave. Where, however,
judgment was first rendered in the case involving the theft, and he surrendered
the slave by way of indemnity, and then another judgment was rendered in favor
of the plaintiff in the action for the recovery of the slave; the judge should
not make an estimate of damages because the slave was not surrendered, since no
negligence or malice could be attributed to the party in failing to deliver the
59. Julianus, On Minicius, Book VI.
A man living in a house belonging to another placed windows and doors
therein, and these the owner of the building removed after a year had elapsed.
I ask whether the party who put them there can bring an action for the recovery
of those doors and windows? The answer was that he can, for whatever is
attached to the building of another forms a part of the same as long as it
continues so, but as soon as it is removed, it immediately reverts to its
60. Pomponius, On Sabinus, Book XXIX.
Where a possessor who is a child or an insane person destroys or spoils
anything, he cannot be punished.
61. Julianus, On Minicius, Book VI.
Minicius, where a man had used materials belonging to another to repair
his own ship, having been asked whether the ship would still remain the
property of the same man, answered that it would; but if he did this while
building the ship, it would not be the case. Julianus states in a note that the
property in the entire ship follows the position of the keel.
62. Papinianus, Questions, Book VI.
Where suit is brought for a ship against a possessor in bad faith, an
estimate of the profits must be made, just as in the case of shops and ground
which is ordinarily leased. This is not contrary to the rule that an heir is
not forced to pay interest upon money which has been deposited but which he
does not handle; for although it is true that freight, like interest, is not
derived from nature but is collectible by law; still, freight can be demanded
in this instance, because the possessor of the ship is not required to be
liable to the plaintiff for risk, but money is loaned at interest at the risk
of the lender.
(1) Generally speaking, however, where a question arises concerning the
estimation of profits, it is established that it must be considered, not
whether the possessor in bad faith has enjoyed them, but whether the plaintiff
would have been able to enjoy them, if he had been permitted to be in
possession of the property. Julianus also adopted this opinion.
63. The Same, Questions, Book XII.
Where anyone loses possession through negligence, but not on account of
fraud, since he must allow an estimate to be made, he will be entitled to be
heard by the court, if he asks that his adversary should be ordered to assign
his right of action; and as the prætor will grant him aid at any time
where some one else is in possession, he will not be taken advantage of in any
way. He should be granted relief, even if the party who received the sum
assessed is in possession; and the latter will not readily be heard if he
desires to refund the money after he has once received it under the decision of
the judge at the risk of the defendant.
64. The Same, Questions, Book XX.
When an action in rem is brought, it is certain that the profits
must be delivered even with reference to those things which are merely kept for
use and not for enjoyment.
65. The Same, Opinions, Book II.
If anyone who purchased land from someone who was not its owner
interposes an exception on the ground of fraud, he will not be required to
surrender the land to the owner, unless the money which was paid to a creditor
who held the land in pledge for debts, together with the interest for the
intermediate time is recovered by him, that is, provided the interest amounts
to more than the profits which he recovered before the suit was brought, for
they can only be set off against interest recently due on the principal; since
it is only just that expenses should be allowed as in the case of improvements
(1) Where a man gave his daughter, who was a female slave, not by way of
dowry but as a portion of her peculium; then, if he does not bequeath
her anything as peculium, the slave must be included among the assets of
the estate. Where, however, a father disinherited his daughter in consideration
of her dowry and peculium; and for that reason either left her nothing
by his will, or left her that much less; a defence based upon the intention of
her father will protect the daughter.
66. Paulus, Questions, Book II.
We have no less right to bring suit to recover something which is our
own, because it is expected that we will lose the ownership of the same, if the
condition upon which a legacy or a grant of freedom depends should be complied
67. Scævola, Opinions, Book I.
A man who bought a house from the guardian of a minor sent a carpenter
to repair it, and he found some money therein. The question arises to whom does
that money belong? I answered that if it was not money concealed, but some
which had been lost, or which the party to whom it belonged had by mistake
failed to remove, it should, nevertheless, continue to be his to whom it
68. Ulpianus, On the Edict, Book LI.
Where a person is ordered to surrender property and does not obey the
order of court, stating that he is unable to do so; if, indeed, he has the
property, possession shall be forcibly transferred from him on application to
the judge, and the only decision to be rendered in the matter is with reference
to the profits.
If, however, he is unable to deliver the property, and has acted
fraudulently to avoid doing so, he must be ordered to pay as much as his
adversary swears to, without any limitation; but where he is unable to deliver
the property, and did not act fraudulently to avoid doing so, he can be ordered
to pay no more than what it is worth; that
is to say, the amount of the interest of his adversary. This is the
general principle, and applies to all matters where property is to be delivered
by order of court, whether interdicts or actions in rem or in
personam are involved.
69. Paulus, On Sabinus, Book XIII.
Where a person has acted fraudulently in order to avoid being in
possession, he can be punished in this manner, namely: the plaintiff shall not
be required to give him security that he will assign to him the rights of
action which he has in the case:
70. Pomponius, On Sabinus, Book XXIX.
And it is settled that he cannot even be granted a Publician Action,
lest he may be able to obtain property by violence and against the will of the
owner, by the payment of a fair price.
71. Paulus, On Sabinus, Book XIII.
Where a possessor has fraudulently relinquished possession, but the
plaintiff is unwilling to make oath, and prefers that his adversary should be
ordered to pay the real value of the property, his desire should be
72. Ulpianus, On the Edict, Book XVI.
If you purchased the land of Sempronius from Titius, and after the price
has been paid it is delivered to you, and then Titius becomes the heir of
Sempronius, and sells and delivers the same land to another party, it is just
that you should be preferred; for even if the vendor himself should bring suit
against you to recover the property, you can bar him by an exception; but if he
himself was in possession, and you should bring an action against him, you
could make use of a replication against an exception on the ground of
73. The Same, On the Edict, Book XVII.
In an action brought to recover some specific property the possessor is
not compelled to state what share of it belongs to him, for this is the duty of
the plaintiff, and not of the possessor. The same rule is observed in the
(1) To a superficiary,
74. Paulus, On the Edict, Book XXI.
(That is to say, one who has a right to occupy the surface of ground
belonging to another, on the condition of paying a certain rent for it),
75. Ulpianus, On the Edict, Book XVI.
The prætor promises an action in rem where proper cause is
76. Gaius, On the Provincial Edict, Book VII.
The principles have been stated with reference to a suit for recovery of
the entire property must be understood to equally apply to the recovery of a
portion of the same; and it is the duty of the judge to
order those things which should be given up to be also delivered in
proportion, at the same time that the share itself is surrendered.
(1) An action for the recovery of a share which is not yet ascertained
will be granted, if there is good cause for it. It is good cause where, for
instance, the Lex Falcidia is applicable in the case of a will, on
account of the uncertain sum which is to be reserved from legacies, when
thorough investigation has not been made by the Court. Where a legatee to whom
a slave has been bequeathed is entirely ignorant of what share in said slave he
should bring suit for; an action of this kind will be granted. We understand
that the same rule applies to other matters.
77. Ulpianus, On the Edict, Book XVII.
A certain woman gave a tract of land by a letter to a man who was not
her husband, and then rented the same land from him. It might be maintained
that he had a right to an action in rem, since he had acquired
possession through her, just as through a tenant. It was stated that he had
indeed been on the land which was donated to him when the letter was sent; and
this was sufficient to constitute delivery of possession, even though the
renting of the ground had not taken place.
78. Labeo, Epitomes of Probabilities by Paulus, Book IV.
If you have not harvested the crops on a tract of land belonging to
another of which you are merely in possession, you are not obliged to deliver
anything produced by said land.
Paulus, on the other hand, asks whether the crops become the property of
the possessor because he gathered them on his own account? We must understand
the harvesting of crops to mean not only where they are entirely gathered, but
where this has begun and has proceeded to the extent that the crops have ceased
to be supported by the land; as, for instance, where olives or grapes have been
gathered, but no wine or oil has been made by anyone; for in this case, he who
has gathered the crops is considered, from that time, to have obtained
79. The Same, Epitomes of Probabilities by Paulus, Book VI.
If you bring suit against me to recover a slave, and he dies after issue
is joined, the profits must be estimated during the time that he lived. Paulus
says, "I think that this is true only where the slave had not yet become so ill
as to render his services worthless; for even if he had continued to live in
that state of ill health, it would not be proper for the profits to be
estimated during that time".
80. Furius Anthiannus, On the Edict, Book I.
We are not compelled to endure an action in rem, because anyone
is allowed to allege that he is not in possession, so that if his adversary can
prove that the other party is actually in possession of the property, he can
have the possession transferred to himself by an order of court; even though he
does not prove that the property is his.
TITLE II. CONCERNING THE PUBLICIAN ACTION IN REM.
1. Ulpianus, On the Edict, Book XVI.
The prætor says: "Where anyone desires to institute proceedings to
recover property delivered to him for good reason, and the title to which has
not yet passed by usucaption, I will grant him an action."
(1) The prætor says, and very properly, "Where the title has not
yet passed by usucaption"; for, if this has once taken place, he has a right to
a civil action and does not require an honorary one.
(2) But why did he merely mention delivery and usucaption, when there
are numerous provisions of the law by means of which anyone may obtain
ownership, as, for instance, in case of a bequest?
2. Paulus, On the Edict, Book XIX.
Or donations made mortis causal For the Publician Action can be
brought where possession has been lost, because it is obtained in the same way
as a legacy.
3. Ulpianus, On the Edict, Book XVI.
And there are many other provisions of the law to the same effect.
(1) The prætor says: "He may bring suit for a good reason"; and
not only is the Publician Action available by a purchaser in good faith, but
also by others; as for instance, by one to whom property has been transferred
by way of dowry, and which has not yet been acquired by usucaption; for
a very good cause of action exists whether the property given by way of dowry
was appraised or not. Likewise, where property is transferred on account of a
4. Paulus, On the Edict, Book XIX. Or for the purpose of paying a
5. Ulpianus, On the Edict, Book XVI.
Or for the surrender of a slave in lieu of damages, whether there was
good ground for this, or not.
6. Paulus, On the Edict, Book XIX.
Moreover, in a noxal action, where no defence was made, I can remove the
slave by order of the prætor and if, after removing him, I lose
possession of him, I can avail myself of the Publician Action.
7. Ulpianus, On the Edict, Book XVI.
But if the property has been adjudged to me, I can bring the Publician
(1) Where the value of the property is estimated in court it resembles a
slave; and Julianus says in the Twenty-second Book of the Digest that, if the
defendant tenders the amount of the appraisement, the Publician Action will
(2) Marcellus, in the Twenty-seventh Book of the Digest, says that where
anyone purchases property from a person who is insane, being ignorant that this
was the case, he can acquire it by usucaption; and therefore he will have a
right to the Publician Action.
(3) Where anyone obtains property as a gift, he is entitled to the
Publician Action; which also will lie against a donor; for the plaintiff is a
lawful possessor where he accepts a donation.
(4) Where a party purchases property from a minor, being ignorant that
he is such, he has a right to the Publician Action.
(5) Also where an exchange has been made, the same action will lie.
(6) The Publician Action is not based on the question of possession, but
upon that of ownership.
(7) If you tender me an oath in a suit which I have brought for the
recovery of property, and I swear that the said property is mine, I am entitled
to the Publician Action, but only against you; for the only person who can be
prejudiced by the oath is the party who tendered it. If, however, the oath is
tendered to the possessor, and he swears that the property does not belong to
the plaintiff, he can make use of an exception only against the latter; for it
does not operate to the extent of granting him a right of action.
(8) In the Publician Action, all those rules must be observed which we
have mentioned in the action for the recovery of property.
(9) This action lies in favor of an heir as well as of prætorian
(10) If I do not make a purchase, but my slave does, I am entitled to
the Publician Action. The same rule applies where my agent, guardian, curator,
or anyone else transacting my business makes a purchase.
(11) The prætor says: "Who purchases in good faith"; therefore, it
is not every purchase which can profit by the action, but only one made in good
faith; hence it is enough if I am a purchaser in good faith even if I should
not buy from the owner, although he may have made the sale to me with
fraudulent intent; for the fraud of a vendor will not prejudice me.
(12) In this action it will be of no disadvantage to me if I am the
successor of the purchaser, and acted fraudulently, where the party himself
whom I succeeded made the purchase in good faith; and it will not profit me if
I was not guilty of fraud, where the purchaser whom I succeeded was guilty of
(13) If, however, my slave made the purchase, his fraud, and not mine,
must be considered; and vice versa.
(14) The Publician Action has reference to the time of the purchase, and
therefore it is held by Pomponius that nothing which was fraudulently done,
either before or after the purchase was made, can become the subject of
investigation in this action.
(15) This action has reference to the good faith of the purchaser
(16) Therefore, in order for the Publician Action to be available, the
following conditions must exist: the person who made the purchase must have
acted in good faith, and the property purchased must have been delivered to him
with that understanding. But even if he made the purchase in good faith, he
cannot make use of the Publician Action before delivery.
(17) Julianus stated in the Seventh Book of the Digest, that the
delivery of the property purchased must be made in good faith; and therefore if
the party knowingly fakes possession of something that belongs to another, he
cannot avail himself of the Publician Action, because he will not be able to
acquire the property by usucaption. Nor must anyone think that it is our
opinion that it is sufficient for the purchaser to be ignorant that the
property belonged to another at the commencement of delivery, in order to
enable him to make use of the Publician Action, but it is necessary that he
should be a bona-fide purchaser at that time also.
8. Gaius, On the Provincial Edict, Book VII.
Nothing, however, is stated with reference to the payment of the
purchase-money; wherefore it must be conjectured that it is not the opinion of
the prætor that it should be asked whether the price has been paid or
9. Ulpianus, On the Edict, Book XVI.
The Publician Action is equally available whether the property is
delivered to the purchaser or to his heir.
(1) Where a party purchases property which has been deposited with him,
or loaned or pledged to him, it must be considered as having been delivered, if
it remains in his possession after the purchase.
(2) The same rule will apply where the delivery preceded the
(3) Moreover, if I purchase an estate, and certain property belonging to
it has been delivered to me for which I wish to bring suit, Neratius states
that I will be entitled to the Publician Action.
(4) Where anyone sells the same property separately to two bona-fide
purchasers, let us see which of them has the better right to the Publician
Action; he to whom the property was first delivered, or he who merely bought
it? Julianus, in the Seventh Book of the Digest, states: "That if the parties
made the purchase from the same person who was not the owner, he will be
preferred to whom delivery was made first; but if they buy said property from
different persons who were not the owners, the one in possession is in a better
legal position than the one who brings the action; and this opinion is
(5) This action is not available with reference to property which cannot
be acquired by usucaption; as, for instance, in the case of articles that had
been stolen, or fugitive slaves.
(6) Where a slave belonging to an estate purchases property before the
estate has been entered upon, and after delivery loses possession of the same;
the heir, very properly, has a right to the Publician Action, just as if he
himself had been in possession.
The members of a municipality also, where property has been delivered to
their slave, will be in the same position;
10. Paulus, On the Edict, Book XIX.
Whether the slave purchased said property with reference to his own
peculium, or not.
11. Ulpianus, On the Edict, Book XVI.
Where I have made a purchase, and the property has been delivered to
another party at my request, the Emperor Severus stated in a Rescript that the
Publician Action should be granted him.
(1) The Publician Action is granted where suit is brought for the
recovery of an usufruct which has been delivered, and also where servitudes of
urban estates have been created by delivery, or by sufferance; for instance,
where a party allowed an aqueduct to be built through his house. The same rule
applies in the case of rustic servitudes, for it is established that in this
case delivery and sufferance protect them.
(2) The offspring of a stolen female slave that was conceived while she
was in possession of a bona-fide purchaser, can be recovered by means of
this action; even if the child was not in possession of the party who purchased
it; but the heir of the thief is not entitled to this action, because he is the
successor to the defective title of the deceased.
(3) Sometimes, however, even though the mother who was stolen had not
been sold, but was presented to me (I being ignorant of the fact) and she
afterwards conceived and brought forth while in my possession, I am entitled to
a Publician Action to recover the child, as Julianus says; provided that, at
the time I bring suit, I do not know that the mother was stolen.
(4) Julianus also states, in a general way, that no matter how I could
acquire the mother by usucaption, if she had not been stolen, I can acquire the
child in the same way, if I was ignorant that the mother had been stolen.
Therefore, in all these instances, I will be entitled to the Publician
(5) The same rule applies in the case of the child of the daughter of a
female slave, even if it was not born, but after the death of its mother was
extracted from her womb by the Cæsarean operation; as Pomponius stated in
the Fortieth Book.
(6) He also says that where a house has been purchased and is destroyed,
any additions made to it can be recovered by an action of this description.
(7) Where an accession is made to land by alluvial deposit, it becomes
of the same nature as that to which it is added; and therefore since the land
itself cannot be recovered by a Publician Action, the addition cannot be
either; but if it can, the portion added by alluvion may be also recovered; and
this was mentioned by Pomponius.
(8) He also adds that, where an action is to be brought for parts of a
purchased statue which have been removed, a similar action is available.
(9) He also states, that if I purchase a vacant lot and build a house
upon it, I can properly make use of the Publician Action.
(10) He also says, if I build a house, and the lot afterwards becomes
vacant, I can likewise make use of the Publician Action.
12. Paulus, On the Edict, Book XIX.
Where a man presented a slave to his betrothed, and, before the title
passed by usucaption, received him back by way of dowry; it was stated by the
Divine Pius in a Rescript that if the parties were divorced, the slave should
be returned, for a gift between two betrothed persons is valid; and therefore
she, as the possessor, will be granted an exception; and if possession should
have been lost, the Publician Action would be granted, whether a stranger or
the donor was in possession of the property.
(1) Where an estate is delivered to anyone under the Trebellian Decree
of the Senate, even if the party should not obtain possession of the same, he
can make use of the Publician Action.
(2) In the case of perpetual leases and other real property which can
not be acquires by usucaption, the Publician Action is available where a
bona-fide delivery of the land has been made.
(3) The same rule applies where I purchased in good faith, from a person
who is not the owner, a house which carried with it the surface of the
(4) If the property is of such a nature that some law or constitution
forbids its alienation, in this instance the Publician Action will not lie,
because, under such circumstances, the prætor affords no protection to
anyone to prevent his breaking the law.
(5) We can make use of the Publician Action even in the case of an
infant slave less than a year old.
(6) Where anyone wishes to recover a portion of some property he can
avail himself of the Publician Action.
(7) He also can properly employ this action who has had possession only
for a moment.
13. Gaius, On the Provincial Edict, Book VII.
Wherever property is legally acquired by us in any way and is lost, this
action will be granted to us for the purpose of recovering said property.
(1) Sometimes, however, the Publician Action can not be brought by
persons who have lawfully obtained possession; for possession derived from
pledge and precarious gifts is lawful; but a right of action is not usually
allowed in cases of this kind, of course, for the reason that neither the
creditor nor the party who has a precarious title obtains possession with the
understanding that he shall believe himself to be the owner.
(2) When anyone makes a purchase from a minor, he must prove that he did
so with the consent of his guardian, and not in violation of law. But where he
made the purchase through the deceit of a pretended guardian, he is held to
have acted in good faith.
14. Ulpianus, On the Edict, Book XVI.
Papinianus states in the Sixth Book of Questions, that where a man
forbids delivery or gives notice, and the property has been sold by his agent
at his request, and the agent delivered it in spite of this; the prætor
will protect the purchaser, whether he is in possession, or whether he brings
an action to recover the property. But where the agent is compelled to make
payment to the purchaser on account of an action based on purchase, the former
can recover in a counter action on mandate; for it might happen that the
property could be recovered from the purchaser by the party who gave the order
to sell it, because through ignorance he did not make use of the exception
which he should have pleaded, for instance: "If the party with whom I dealt did
not make the sale with your consent".
15. Pomponius, On Sabinus, Book III.
If my slave, while in flight, purchases property from some one who is
not the owner, the Publician Action will lie in my favor, even though I may not
have obtained possession, through him, of the property delivered.
16. Papinianus, Questions, Book X.
Paulus states in a note that an exception on the ground of legal
ownership may be pleaded in bar of the Publician Action.
17. Neratius, Parchments, Book HI.
The Publician Action was not invented for the purpose of depriving the
real owner of his property (and this is proved in the first place on equitable
principles; and in the second place by the use of the exception: "If the
property in dispute does not belong to the possessor"); but, for the reason
that where a man purchases anything in good faith and has obtained possession
of it, he, rather than his adversary, should be entitled to hold it.
CONCERNING ACTIONS FOR THE RECOVERY OF LAND WHICH HAS BEEN PERPETUALLY
LEASED, NAMELY, EMPHYTEUTIC
1. Paulus, On the Edict, Book XXI.
Some lands belonging to towns are called "vectigales", and others
are not. Those are styled vectigales which are leased perpetually, that
is to say, under an agreement that so long as the rent is paid for them it
shall not be lawful to take them away from those who leased them, or from their
successors. Lands are not of this description which are leased for cultivation
under the terms by which we are accustomed to rent them privately for that
(1) Where parties lease land from municipalities in perpetuity, although
they do not become the owners of the same it is established
that they are, nevertheless, entitled to an action in rem against
a possessor, and even against the members of the municipality themselves:
2. Ulpianus, On Sabinus, Book XVII. Provided, however, they
always pay the rent.
3. Paulus, On the Edict, Book XXI.
The same rule applies where they have made a lease for a specified time,
and the term agreed upon has not yet expired.