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or, in other words, to protect the enjoyment of that fragment of the dominium which constituted the servitude, as well as of all other fragments, while the possession of the thing itself was protected by the interdicts uti possidetis. (Tit. 16.) Subsequently the possession of servitudes was protected by interdicts, but still the actio negativa remained as a concurrent remedy with the possessory interdict to protect the enjoyment of that fragment of the dominium which constituted the servitude, just as the actio confessoria remained as a concurrent remedy with the prohibitory interdict to prevent a servitude being infringed.
Sane uno casu. It is a subject of much dispute what is the one case in which the possessor could be plaintiff. Perhaps the words are but a summary of what has gone before. There is, indeed, but one case of a person in possession being plaintiff, that, namely, of the possessor of an incorporeal thing.' Perhaps they refer to a person repelling by an exceptio justi dominii the actio Publiciana noticed in par. 4, as such a person had to prove he was owner.
3. Sed istæ quidem actiones, 3. The actions just mentioned, and quarum mentionem habuimus, et si those of a similar nature, are derived quæ sunt similes, ex legitimis et from particular laws and from the jus civilibus causis descendunt. Aliæ civile; but there are others, both real autem sunt, quas prætor ex sua and personal, which the prætor, by jurisdictione comparatas habet tam virtue of his jurisdiction, has introin rem quam in personam, quas duced, and of which it is necessary to et ipsas necessarium est exemplis give some examples : thus the prætor ostendere. Ecce plerumque ita often permits a real action to be permittit in rem agere, ut vel actor brought, by which the plaintiff is aldiceret, se quasi usucepisse, quod lowed to allege that he has acquired, usu non ceperit, vel ex diverso pos- as it were by usucapio, something sessorem diceret, adversarium suum, which he has not so acquired ; or by usu non cepisse, quod usuceperit. which, on the contrary, he alleges that
his adversary, the possessor, has not acquired something by usucapio, which,
in reality, he has so acquired.
D. xliv. 7. 25. 2. The second division of actions, given in this Title, is that of civil and prætorian. The two methods principally adopted by the prætor to give an action in cases not provided for by the civil law, were, as already stated (p. 425), either to construct a formula on a fictitious hypothesis, or make the action one in factum concepta. The three following paragraphs give examples of fictitious actions in rem.
Justinian notices five prætorian actions in rem, viz. the actio Publiciana, the actio quasi Publiciana, the actio Pauliana, the actio Serviana, and the actio quasi Serviana, and gives as instances of the numerous prætorian actions in personam, the actions de pecunia constituta, de peculio, &c. (See par. 8 and foll.)
4. Namque si cui ex justa causa 4. For instance, if anything belong. res aliena tradita fuerit, veluti ex ing to another is delivered by a legal
causa emptionis aut donationis aut method, as by purchase, gift, dos, or ledotis aut legatorum, necdum ejus gacy, to a person who has not yet become rei dominus effectus est, si ejus rei proprietor of the thing delivered, if he casu possessionem amiserit, nullam chances to lose the possession, he has habet directam in rem actionem ad no direct real action for its recovery ; eam rem persequendam : quippe ita inasmuch as the civil law only permits proditæ sunt jure civili actiones, ut such actions to be brought by the proquis dominium suum vindicet. Sed prietor. But, as it was very hard that quia sane durum erat, eo casu de- there should be no action given in such ficere actionem, inventa est a præ- a case, the prætor has introduced one, tore actio, in qua dicit is, qui pos- in which the person who has lost the sessionem amisit, eam rein se usu- possession, alleges he has aquired the cepisse et ita vindicat suam esse. thing in question by usucapio, although Quæ actio Publiciana appellatur, he has not really so acquired it, and he quoniam primum a Publicio prætore thus claims it as his own. This action in edicto proposita est.
is called the actio Publiciana, because it was first placed in the edict by the
prætor Publicius. Gai. iv. 36.
When any one except the real owner of a thing (dominus) i delivered over a thing on a ground and in a mode which would have sufficed to pass the property, if he had had it to pass, or if an owner of a thing transferred a thing by a mode insufficient to pass the dominium, as if a res mancipi was delivered without mancipation, the person, in either of these cases, to whom the thing was delivered, being a bona fide possessor, could perfect his title to it by usucapion ; but if he lost the thing out of his possession after it was delivered to him, but before the time necessary to complete the usucapion had expired, the civil law gave him no remedy, for he was not the dominus, and none but a dominus could claim a thing by 'vindicatio. The actio Publiciana, an actio fictitia in jus concepta, was therefore given for his relief by the prætor Publicius, perhaps the Publicius mentioned as prætor by Cicero. (Pro Cluent. 45.) In this action the plaintiff was allowed to state what was in fact not true, that the usucapion was complete, and thus to claim as if his ownership was absolute. If the thing had fallen into the hands of a person who himself claimed to be really the dominus, and to have a bona fide ground of repelling the actio Publiciana, it could be repelled by an exception termed the exceptio justi dominii. (D. vi. 2. 16.)
If it had fallen into the hands of a person who did not claim to be the owner, but who had so acquired it as to be in a situation to perfect his title by usucapion, i.e. who was also a bona fide possessor, and the plaintiff brought an actio Publiciana for it before the time of the usucapion had expired, the title of the actual holder of the thing was considered the better ; for in pari causa melior est conditio possidentis. The formula of the action ran thus : Judex esto. Si quem hominem Aulus Agerius emit, quique ei traditus esset, anno possedisset, tum si eum hominem, de quo agitur, ejus ex jure Quiritium esse oporteret.' (GAI. iv. 36.)
The actio Publiciana might also be useful to a person who was really the owner ; for while the distinction between res mancipi and nec mancipi was retained, the owner of a thing requiring to be passed by mancipation might have himself received it by mancipation, but be unable to show that the person who transferred it to him was really the dominus, and had in his turn received it by mancipation. If he lost the thing before he had perfected the title by usucapion, he could not bring a vindicatio, but was obliged to have recourse to the actio Publiciana; and before the legislation of Justinian this action was especially useful to persons who had received a transfer of things which, like the provincial lands, could not be made the subject of a perfect dominium, and the title to which could not be perfected by usucapion (see Bk. ii. Tit. 6); for they were allowed to bring this fictitious action if they were deprived of the possession, at any rate after the time entitling them to use the præscriptio longi temporis had elapsed. (C. vii. 39. 8.)
5. Rursus ex diverso si quis, 5. Conversely, if any one, while cum rei publicæ causa abesset vel abroad in the service of his country, in hostium potestate esset, rem ejus, or a prisoner in the hands of the enemy, qui in civitate esset, usuceperit, per- has acquired by usucapion a thing mittitur domino, si possessor rei which belongs to another person resipublicæ causa abesse desierit, tunc dent at home, then the proprietor is intra annum, rescissa usucapione, permitted, within a year after the reeam petere, id est ita petere, turn of the possessor, to sue for the ut dicat, possessorem usu non cepisse thing by rescinding the usucapion ; et ob id suam esse rem. Quod that is, he may allege that the possesgenus actionis et aliis, simili æqui- sor has not acquired by usucapio, tate motus, prætor accommodat, and that the thing therefore is his. sicut ex latiore digestorum seu pan- Similar feelings of equity have led the dectarum volumine intellegere licet. prætor to grant this species of action
to some other persons also, as may be learned from the larger treatise of the
Digest or Pandects. D. iv. 6. 21 ; D. iv. 1. 1, 2; D. iv. 6. 1. 1. This paragraph gives the converse case. Before, the usucapion was not complete, and the action supplied what was wanting to it. Here the usucapion is complete, and the action takes away its effect. 1 Such an action might be wanted in either of two cases. Either the proprietor of the thing might be absent, or deprived, on some legitimate ground, of the power of attending to his affairs; and during this time the usucapion might have been completed against him ; or the possessor, the person in whose favour the time of usucapion was running, might have been absent, and the proprietor, not being able to sue him, might have been unable to stop the usucapion. In either of these cases this kind of actio Publiciana, called rescissoria, because the usucapion was rescinded, came to the aid of the proprietor. It is to be remarked that Justinian notices only the latter of the two cases, and yet he had provided a much more simple remedy in behalf of proprietors, who were
allowed to interrupt the usucapion of an absent possessor by a protestation made before a magistrate. (C. vii. 40. 2.)
The actio Publiciana rescissoria, an actio fictitia in jus concepta, had to be brought within a year, commencing from the time when it first became possible to bring the action. Intra annum, quo primum de ea re excperiundi potestas erit. (D. iv. 6. 1. 1.) The year was a utilis annus, and its length, therefore, varied in different cases, for which Justinian substituted the uniform term of four years.
Quibusdam et aliis. Such as the restitutio in integrum, by which the prætor protected a person under the age of twenty-five years. (See Bk. i. Tit. 23. pr.)
6. Item si quis in fraudem credi- 6. Again, if a debtor delivers to a torum rem suam alicui tradiderit, third person anything that is his probonis ejus a creditoribus ex sententia perty, in order to defraud his credipræsidis possessis, permittitur ipsis tors, who have been put in possession creditoribus, rescissa traditione, eam of his goods by order of the præses, the rem petere, id est dicere, eam rem creditors are permitted to rescind the traditam non esse et ob id in bonis delivery, and bring an action for the debitoris mansisse.
thing delivered ; that is, they may allege that the thing was not delivered, and that it therefore has continued to
be a part of the debtor's goods.
D. xlii. 8. 1. pr. 1, 2. Theophilus tells us that this action, an actio fictitia in jus concepta, was called the actio Pauliana. The lex Ælia Sentia (see Bk. i. Tit. 7) had made enfranchisements in fraud of creditors void; but the law did not extend to alienations; and the prætor, therefore, when the creditors had taken possession of the effects of the debtor, permitted them to reclaim anything which had been alienated after insolvency and with intent to defraud.
This actio Pauliana in rem (says Ortolan) is not spoken of elsewhere in the works of Roman law which have come down to us. It must not be confounded with the actio Pauliana in personam treated of in the Digest (xxii. 1. 38. pr. and 4), which was given, not only in case of alienation, but of every act whereby the debtor had diminished his assets, and the intentio of which was directed against the particular person who had profited by such an act, and not as that of the actio in rem, which forms the subject of this. paragraph, against any one who happened to be the person detaining the thing claimed.
7. Item Serviana et quasi Servia- 7. The actio Serviana, and the actio na, quæ etiam hypothecaria vocatur, quasi-Serviana also called hypothecaria, ex ipsius prætoris jurisdictione sub- equally take their rise from the præstantiam capit. Serviana autem ex- tor's jurisdiction. The actio Serviana peritur quis de rebus coloni, quæ is brought to get possession of the pignoris jure pro mercedibus fundi effects of a farmer which are held as a ei tenentur ; quasi Serviana autem pledge to secure the rent of the land. qua creditores pignora hypothecasve The actio quasi-Serviana is that by persequuntur, Inter pignus autem which creditors sue for things pledged et hypothecam quantum ad actionem or mortgaged to them; and, as regards
hypothecariam nihil interest : nam this action, there is no difference bede qua re inter creditorem et debi- tween a pledge and a hypotheca ; for torem convenerit, ut sit pro debito the two terms are indifferently applied obligata, utraque hac appellatione to anything which the debtor and crecontinetur. Sed in aliis differentia ditor agree shall be bound as security est : nam pignoris appellatione eam for the debt ; but in other points there proprie contineri dicimus, quæ simul is a distinction between them. The etiam traditur creditori, maxime term pledge is properly applied to a si mobilis sit : at eam, quæ sine thing which has actually been delivered traditione nuda conventione tenetur, to a creditor, especially if the thing is proprie hypothecæ appellatione con- a moveable ; the term hypotheca means tineri dicimus.
anything bound by simple agreement
without delivery. D. xx. 2. 4 ; D. xx. 1. 17. 5. 1 ; D. xiii. 7. 9. 2. We have already given a slight sketch of the jus pignoris, and the relative position of the creditor and debtor, at the end of the fifth Title of the Second Book. The interest of the creditor was not thought sufficient to support a vindicatio if he lost the thing pledged out of his possession, or wished to get the thing subjected to a hypotheca into his possession ; but a prætorian action enabled him to effect this. The actio Serviana mentioned in this paragraph was given to enforce the claim of the landlord to the farming instruments, which, without any special agreement, were considered, in law, to be held as a pledge for the rent of the farm, and the actio quasi-Serviana was an extension of this, giving a means to every creditor of enforcing his right to anything pledged or mortgaged. Both actions were in factum.
Maxime si mobilis sit. An immoveable might of course be given in pledge; but it would generally happen that things given in pledge were moveables.
A thing subjected to successive hypothecce belonged, as we have said in treating of the real right given by the jus pignoris (Bk. ii. Tit. 5), to the person in whose favour the first hypotheca was constituted. If, therefore, a creditor, whose hypotheca was subsequent, brought the actio quasi-Serviana against a creditor whose hypotheca was prior, he would be repelled by an exception. (C. viii. '18. 6.)
8. In personam quoque actiones 8. There are also personal actions ex sua jurisdictione propositas habet which the prætor has introduced in the prætor, veluti de pecunia constituta : exercise of his jurisdiction, as, for incui similis videbatur receptitia ; sed stance, the action de pecunia constituta, ex nostra constitutione, cum et, si which that called receptitia much requid plenius habebat, hoc in pe- sembled. But by our constitution the cuniam constitutam transfusum est, actio receptitia has been rendered superea quasi supervacua jussa est cum fluous by all its advantages being transsua auctoritate a nostris legibus re- ferred to the actio pecuniæ constituta, cedere. Item prætor proposuit de and has, therefore, lost its authority, peculio servorum filiorumque fami- and disappeared from our legislation. lias et ex qua quæritur, an actor The prætor has likewise introduced juraverit, et alias complures. an action concerning the peculium of
slaves and of filiifamilias, and an action in which the question is tried, whether the plaintiff has made oath,
and many others. C. iv. 18. 2. pr. and 1.