tatem recipere videtur, cum aut oculos nostros evaserit, aut licet in conspectu sit nostro, difficilis tamen eius rei persecutio sit.

68. In iis autem animalibus quae ex consuetudine abire et redire solent, veluti columbis et apibus, item cervis qui in silvas ire et redire solent, talem habemus regulam traditam, ut si revertendi animum habere desierint, etiam nostra esse desinant et fiant occupantium. revertendi autem animum videntur desinere habere, cum revertendi consuetudinem deseruerint. 69. Ea quoque quae ex hostibus capiuntur naturali ratione nostra fiunt.

70. Sed et id quod per adluvionem nobis adicitur eodem iure nostrum fit. per adluvionem autem id videtur adici quod ita paulatim flumen agro nostro adicit, ut aestimare non possimus quantum quoquo momento temporis adiciatur. hoc est quod volgo dicitur, per adluvionem id adici videri quod ita paulatim adicitur, ut oculos nostros fallat. (71.) Quod si flumen partem aliquam ex tuo praedio detraxerit et ad meum praedium attulerit, haec pars tua manet.

cause it ceases to be ours. And it is considered to recover its natural liberty when it has either gone out of our sight, or although it be still in our sight, yet its pursuit is difficult.

68. With regard to those animals which are accustomed to go and return habitually, as doves and bees, and deer, which are in the habit of going into the woods and coming back again, we have this rule handed down, that if they cease to have the intent of returning, they also cease to be ours and become the property of the first taker: and they are considered to cease to have the intent of returning when they have abandoned the habit of returning.

69. Those things also which are taken from the enemy become ours on natural principle.

70. That also which is added to us by alluvion becomes ours on the same principle. Now that is considered to be added by alluvion which the river adds so gradually to our land, that we cannot calculate how much is added at each instant: and hence the common saying, that that is regarded as added by alluvion which is added so gradually that it cheats our eyes. 71. But if the river rend away a portion of your field and conjoin it to mine, that portion remains yours.

72. At si in medio flumine insula nata sit, haec eorum omnium communis est qui ab utraque parte fluminis prope ripam praedia possident. si vero non sit in medio flumine, ad eos pertinet qui ab ea parte quae proxuma est iuxta ripam praedia habent.

73. Praeterea id quod in solo nostro ab aliquo aedificatum est, quamvis ille suo nomine aedificaverit, iure naturali nostrum fit, quia superficies solo cedit.

74. Multoque magis id accidit et in planta quam quis in solo nostro posuerit, si modo radicibus terram complexa fuerit.

75. Idem contingit et in frumento quod in solo nostro ab aliquo satum fuerit. (76.) Sed si ab eo petamus fundum vel aedificium, et inpensas in aedificium vel in seminaria vel in

72. If an island be formed in the middle of a river, it is the common property of all who have lands adjacent to the bank on either side of the river. But if it be not in the middle of the river, it belongs to those who have lands along the bank on that side which is the nearest.

73. Moreover that which is built on our ground by any one, even though he have built it in his own name (i.e. for himself) is ours by natural law, because the superstructure goes with the soil1.

74. Much more is this the case with a plant which a man has placed in our land, provided only it have laid hold of the earth with its roots.

75. The same is the case also with corn which has been sown on our land by any one. and will not pay the expenses

But if the builder had acted in bona fides and had at the time the possession of the land, he could resist the action of the owner who refused to indemnify him, by an exceptio doli mali. He could, however, in no case bring an actio ad exhibendum to get back the actual building materials. But if the house were pulled down. then he was allowed to vindicate them, even if the period of usucapion for the house were com

76. But if we claim the land, incurred upon the building or

pleted, because "he who possesses an entirety, possesses the entirety only and not each individual part by itself." (Sav. On Poss. p. 193): so that the good title to the land would not have cured the bad title to the materials. If he had not possession, and if the house were not demolished, there is great doubt whether he had any remedy at all. D. 41. I. 7. 12; D. 5. 3. 38.

sementem factas ei solvere nolimus, poterit nos per exceptionem doli repellere; utique si bonae fidei possessor fuerit.

77. Eadem ratione probatum est, quod in chartulis sive membranis meis aliquis scripserit, licet aureis litteris, meum esse, quia litterae chartulis sive membranis cedunt. itaque si ego eos libros easque membranas petam, nec impensam scripturae solvam, per exceptionem doli mali summoveri potero. (78.) Sed si in tabula mea aliquis pinxerit velut imaginem, contra probatur: magis enim dicitur tabulam picturae cedere. cuius diversitatis vix idonea ratio redditur. certe secundum hanc regulam si a me possidente petas imaginem tuam esse, nec solvas pretium tabulae, poteris per exceptionem doli mali summoveri. at si tu possideas, consequens est, ut utilis mihi actio adversum te dari debeat: quo casu nisi solvam impensam

seed, or plant, he can resist us by an exceptio doli': at any rate if he be a possessor in good faith.

77. On the same principle the rule has been established that whatever any one has written on my paper or parchment, though it be in golden letters, is mine, because the letters are an accession to the paper or parchment. Therefore, if I claim those books and those parchments, and yet will not pay the expense of the writing, I can be resisted by an exceptio doli mali. 78. But if any one has painted on my tablet a likeness, to take an example, an opposite decision is given: for the more correct doctrine is that the tablet is an accession to the picture. For which difference scarcely any satisfactory reason can be given. No doubt, according to this rule, if you claim as your own the picture of which I am in possession, and yet will not pay the price of the tablet, you can be resisted by the exceptio doli mali. But if you be in possession, it follows that an actio utilis ought to be allowed me against you: in which

1 IV. 115 et seqq. For "fructum, ,"the reading of the MS. Huschke suggests "fundum." This appears a better reading, for we know that a bona fide possessor had a right to the fruits (see Savigny, On Poss. p. 201), and from the conclusion of the paragraph it is evident that Gaius is considering the case of a bonâ fide possessor, from whom the possession is reclaimed by the dominus. As such

an one was treated equitably in one case, he probably would be in another.

2 The cases wherein the Praetor gave actions were commonly analogous to cases where the jus civile gave actions. The action granted by the Praetor fell under the principle of some enactment of the jus civile, although it did not fall within its provision. Hence the name utilis, derived not from uti the verb, but

Title by specification.

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picturae, poteris me per exceptionem doli mali repellere, utique si bona fide possessor fueris. illud palam est, quod sive tu subripuisses tabulam sive alius, conpetit mihi furti actio.

79. In aliis quoque speciebus naturalis ratio requiritur: proinde si ex uvis aut olivis aut spicis meis vinum aut oleum aut frumentum feceris, quaeritur utrum meum sit id vinum aut oleum aut frumentum, an tuum. item si ex auro aut argento meo vas aliquod feceris, aut ex meis tabulis navem aut armarium aut subsellium fabricaveris; item si ex lana mea vestimentum feceris, vel si ex vino et melle meo mulsum feceris, sive ex medicamentis meis emplastrum aut collyrium feceris: quaeritur, utrum tuum sit id quod ex meo effeceris, an meum. quidam materiam et substantiam spectandam esse putant, id est, ut

case if I do not pay the price of the picture, you can resist me by an exceptio doli mali, at any rate if you be a possessor in good faith. It is clear that if you or any one else have stolen the tablet, an action of theft lies for me.

79. In other instances also natural principles are resorted to. For instance, if you have made wine, or oil, or corn, out of my grapes, olives, or ears, the question arises whether that wine, oil, or corn is mine or yours'. Likewise, if you have made any vessel out of my gold or silver, or made a ship, or chest, or seat out of my planks: likewise, if you have made a garment out of my wool, or made mead out of my wine and honey, or a plaster or eye-salve out of my drugs: the question arises whether that which you have so made out of mine is yours or mine. Some think the material and substance are what ought to be regarded, i. e. that the thing made should be considered

uti the adverb, and meaning "analogous. The special circumstances of the present case are: (1) that it is a general rule that a vindicatio can only be brought by the dominus, the owner of the thing, when he is kept out of possession: (2) that ipso iure there is no separate property in an accession, so that one who claims the accession not through the principal thing is not a dominus, and hence has no action: therefore the dominus being in possession of the picture, the owner of the tablet

has by the civil law no action for his tablet. Here then is an opportunity for the Praetor to meet the spirit, and contravene the letter of the law, by granting to the latter an actio utilis. See Austin, II. 303. (II. 621, third edition.)

1 The principles here stated are fully set out and in very similar language in D. 41. 1. 7. 7, which passage forms part of a long citation from another treatise of Gaius, viz. the Liber Rerum quotidianarum sive Au

reorum.

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Alienation by women and pupils.

cuius materia sit, illius et res quae facta sit videatur esse; idque maxime placuit Sabino et Cassio. alii vero eius rem esse putant qui fecerit ; idque maxime diversae scholae auctoribus visum est: sed eum quoque cuius materia et substantia fuerit, furti adversus eum qui subripuerit habere actionem; nec minus adversus eundem condictionem ei competere, quia extinctae res, licet vindicari non possint, condici tamen furibus et quibusdam aliis possessoribus possunt.

DE PUPILLIS AN ALIQUID A SE ALIENARE POSSUNT.

80. Nunc admonendi sumus neque feminam neque pupillum sine tutoris auctoritate rem mancipi alienare posse; nec mancipi vero feminam quidem posse, pupillum non posse. (81.) Ideoque si quando mulier mutuam pecuniam alicui sine tutoris auctoritate dederit, quia facit eam accipientis, cum scilicet ea pecunia res nec mancipi sit, contrahit obligationem. (82.) At

to belong to him to whom the materials belong: and this opinion found favour with Cassius and Sabinus'. But others think that the thing belongs to him who made it, (and this view rather is upheld by the authorities of the other school,) but that he to whom the material and substance belonged has an action of theft against him who took them away: and that he has in addition a condiction against the same person, because things which have been destroyed, although they cannot be recovered by vindication, yet may be obtained by condiction from thieves and certain other possessors.

80. We must now be informed that neither a woman nor a pupil can without the authority of the tutor alienate a res mancipi: a res nec mancipi a woman can alienate, and a pupil cannot3. 81. Therefore in all cases where a woman lends money to any one without the authorization of her tutor, she contracts an obligation, for she makes the money the property of the recipient, inasmuch as money is a res nec mancipi.

1 To which school Gaius himself delivery passes the property: hence belonged.

in this instance the mutuum is bind

ing, money being a res nec mancipi, and therefore capable of transfer by mere delivery. II. 80. See III. 90.