Pt. I. Ch. I. BOOK III. ship (rem in bonis habere, esse) of Roman citizens, resulting from the increased influence of the ius gentium, obtained recognition by means of the Praetor's jurisdiction. This was supposed when any one had acquired a res mancipi from a Roman citizen by mere tradition, or some other non-civil act of acquisition; or even when the acquisition of the thing (without distinction between res mancipi and nec mancipi) was only originated in the Praetorian Law, as with the Praetorian heir (bonorum possessor)." a See § 154, and comp. Gai. iii. 80. Gai. ii. §§ 40-41: Sequitur ut admoneamus, apud peregrinos quidem unum esse dominium : nam aut dominus quisque est, aut dominus non intelligitur. Quo iure etiam populus Romanus olim utebatur: aut enim ex iure Quiritium unusquisque dominus erat, aut non intelligebatur dominus. Sed postea divisionem accepit dominium, ut alius possit esse ex iure Quiritium dominus, alius in bonis habere.-Nam si tibi rem mancipi neque mancipavero neque in iure cessero, sed tantum tradidero, in bonis quidem tuis ea res efficitur, ex iure Quiritium vero mea permanebit, donec tu eam possidendo usucapias: semel enim impleta usucapione, proinde pleno iure incipit, i.e. in bonis et ex iure Quiritium tua res esse, ac si ea mancipata vel in iure cessa esset.' 1 We have next to observe that amongst foreigners there is but a single ownership, for every one is either regarded as owner or non-owner. This law was also formerly in use by the Roman people; for by the law of the Quirites a man was either owner or was not regarded as owner. But afterwards ownership became subject to division, so that one man could be owner upon Quiritarian title, another was Bonitary owner. For if I have neither mancipated to you a res mancipi nor have conveyed it to you by surrender in court, but have merely delivered it, the thing is made part of your goods, but it will remain mine ca iure Quiritium until you acquire it by usucapion-possession; because once the usucapion is completed, it straightway begins to fall under plenary ownership, i.e., to be your property both in BOOK III. Pt. I. Ch. 1. Ulp. xi. 19. Property,' Thus a duplex dominium' of two persons could meet even in the same thing: Quiritarian ownership of the one, and Bouitarian of the other. In this case, the former availed in nearly all juristic relations as one merely nominal (nudum ius Quiritium), the latter as the real ownership," which, as generally, so also against a But comp. the Quiritarian owner, was protected by the Praetor See further with fictitious actions (e.g., act. Publiciana) and pleas Digby, Real (exceptio and replicatio doli, rei venditae et traditae). Gai. i. § 54: Ceterum cum apud cives Romanos duplex sit dominium (nam vel in bonis pr.; and § 905, vel ex iure Quiritium vel ex utroque iure cuiusque actio. servus esse intelligitur), ita demum servum in potestate domini esse dicemus, si in bonis eius sit, etiamsi simul ex iure Quiritium eiusdem non sit: nam qui nudum ius Quiritium in servo habet, is potestatem habere non intelligitur.' Ulp. xix. 20: Si servus alterius in bonis, alterius ex iure Quiritium sit, ex omnibus causis adquirit ei, cuius in bonis est.-Gai. iii. 166: Placet, ex nulla causa ei adquiri posse: adeo ut etsi nominatim ei dari stipulatus fuerit servus mancipiove nomine eius acceperit, quidam existiment, nihil ei adquiri." bonis and ex iure Quiritium, as if it had been mancipated to you or surrendered in court. 1 But since amongst Roman citizens there is a twofold ownership, for a man's slave is regarded as belonging to him either upon Bonitarian or Quiritarian title, or by both—we shall speak of a slave as being under the potestas of his master, if his in bonis, although not at the same time belonging to him upon Quiritarian title; for he that has the bare Quiritarian right is not regarded as having potestas in respect of a slave. d p. 272; Markby, s. 336. b D. 21, 3, I Publiciana Sc. qui nudum in servo habet. ius Quiritium 2 If a slave be in bonis of one man, another's ex iure Quiritium, it is in every case for his Quiritarian owner that he makes acquisitions. It is held that in no case can there be acquisition for him; to such an extent that, although the slave have d (ie. who has a stipulated expressly for the grant to him, or have taken in his bare Quiriname a conveyance by mancipation, some think that he acquires the slave.) nothing. tarian title to BOOK III. l't. I. Ch. I. Ulp. i. 16: Qui tantum in bonis, non etiam ex iure Quiritium servum habet, nanumittendo Latinum facit.' Mod. Rem in bonis nostris habere intelligimur, quotiens possidentes exceptionem, aut amittentes ad recuperandam eam actionem habemus.D. 41, 1, 52.2 In the course of time, ownership' ex iure Quiritium' ever increasingly lost practical importance, until at last Justinian abolished the whole distinction of Quiritarian ownership, on the one hand, and Bonitarian and Peregrinarian on the other, even in name; so that there henceforth remains only one ownership, equally available to all persons, without distinction between a a § 74, ad fin. civil and a natural act of acquisition." Cf. Savigny, on Possn. by P'erry; Mark by, ch. ix. ; Holmes, Lect. vi. Parties to an Action,' § 76. NATURE AND KINDS OF POSSESSION. Pos POSSESSIO is the total and exclusive de facto control Holl, pp. 141-9; over a thing, which by law is protected as such against actual disturbance on the part of every third person (even the owner), unless it has been acquired from the Cf. § 83, ad latter in an illegal manner; and though possession init.-For Trover and Tres. in itself is not a legal relation, yet it is protected by pass, see Diccy, law for its own sake, as giving effect to the possessor's personality and his will as recognised by law. session, accordingly, exhibits itself as the de facto side Persl. Propy.' of Ownership, as the actual, material exercise thereof, which nevertheless has legal importance also as separated from it, and precisely in this separation affords juristic interest. From the right OF POSSESSION we have indeed to distinguish the right TO POSSESS, which is based upon ownership in the thing, or a privilege granted by the owner, or again, in certain circum pp. 331-366; Williams, ch. ii. (Appa rent possn., p. 67). For Larceny, sce Stephen, Dig. of Crim. Law, pp. 210-214. d Holmes, pp. 206-8. в § 75. 1 Cf. Dicey, P. 345 note. 1 He that only holds a slave in bonis, and not also ex iure Quiritium, by manumission makes him a Latin. A thing is regarded as belonging to our property while, if it is in our possession, a plea is available to us, or an action to recover the thing if we lose it. BOOK III. Pt. I. Ch. J. stances, upon a legal acquisition of the thing." In Paul, Iusta an iniusta adversus ceteros pos- Ulp.: Nihil commune habet proprietas cum possessione.-1. 12, § 1, D. h. t. (= de A. v. A. P. 41, 2).—Id.: Separata esse debet possessio a proprietate fieri enim potest, ut alter possessor sit, dominus non sit, alter dominus quidem sit, possessor vero non sit; fieri potest, ut et possessor idem et dominus sit.-D. 43, 17, I, 2.2 Possession consists of two elements, one de facto (res facti), the actual relation of control over the thing, i.c., the potentiality of discretionary and exclusive corporal operation upon the thing (corpus); and the other mental (res iuris), ie., the will actually to have command of the thing exclusively-though not continuously like the owner. This latter is spoken of as the 'animus possidendi'; it is not to be confounded with the opinio dominii,' and is to be distinguished likewise from the will of ownership, that is, the intention to exercise proprietary right." The author had added: and from the will to appro 1 In this interdict it does not depend upon whether the pos- priate, which session against others is lawful or unlawful; every poɛsessor, possibly may be absent, as, for by the fact that he possesses, has more right than he who instance, in the possesses not. In a position of equality we must consider the case of the preference attaches to the possessor. finder whose intention it is unknown loser,' 2 Ownership has nothing in common with possession.-Pos- to return the session must be kept distinct from ownership; for the case can thing to the arise of one being possessor and not owner, another indeed but he now reowner, but not possessor; it may be that the same person is gards this as very doubtful. both possessor and owner. BOOK III. Pt. I. Ch. I. Pap. Possessio non tantum corporis, sed et iuris est.. 49, § 1. D. h. t.' Nemo ambigit, possessionis duplicem esse rationem, aliam quae iure consistit, aliam quae corpore. -C. 7, 32, 10.3 From the idea of Possession results, accordingly, that a 'possessio plurium in solidum' is impossible. Paul. Plures eandem rem in solidum possidere non possunt; contra naturam quippe est, ut cum ego aliquid teneam, tu quoque id tenere videaris. Sabinus tamen scribit, eum qui precario dederit et ipsum possidere, et eum qui precario acceperit; idem Trebatius probabat existimans posse alium iuste, alium iniuste possidere. . .; quem Labeo reprehendit, quoniam in summa possessionis non multum interest, iuste quis an iniuste possideat. Quod est verius: non magis enim eadem possessio apud duos esse potest, quam ut tu stare videaris in eodem loco in quo ego sto, vel in quo ego sedeo tu sedere videaris.-1. 3, § 5, D. h. t.3 On the other hand, the will of the holder can be directed to the possession of the thing not for himself, but for some other definite person-alieno nomine' 1 Possession not only is something material, but is a matter of right. 2 It is beyond all doubt that possession embraces a twofold relation, one that lies in ius, another in corpus. Several persons cannot possess the same thing in its entirety, because it is contrary to nature that, if I detain a thing, you can also be regarded as detaining it. Sab. nevertheless writes that he who has delivered anything as a precarium himself possesses no less than he who received it as a precarium. Trebatius supported the same opinion, because he considers that the one possesses lawfully, the other unlawfully . . ; Lab. criticizes him, on the ground that where possession comes in general into account, it does not much matter whether one possess lawfully or unlawfully. And that is the better opinion; for the same possession can no more be with two persons than that you should be regarded as standing where I do, or as sitting in the same place as I. |