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.

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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

owner.

3. Sed istæ quidem actiones, quarum mentionem habuimus, et si quæ sunt similes, ex legitimis et civilibus causis descendunt. Aliæ autem sunt, quas prætor ex sua jurisdictione comparatas habet tam in rem quam in personam, quas et ipsas necessarium est exemplis ostendere. Ecce plerumque ita permittit in rem agere, ut vel actor diceret, se quasi usucepisse, quod usu non ceperit, vel ex diverso possessorem diceret, adversarium suum, usu non cepisse, quod usuceperit.

he was

3. The actions just mentioned, and those of a similar nature, are derived from particular laws and from the jus civile; but there are others, both real and personal, which the prætor, by virtue of his jurisdiction, has introduced, and of which it is necessary to give some examples: thus the prætor often permits a real action to be brought, by which the plaintiff is allowed to allege that he has acquired, as it were by usucapio, something which he has not so acquired; or by 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 belongres aliena tradita fuerit, veluti ex ing to another is delivered by a legal

causa emptionis aut donationis aut dotis aut legatorum, necdum ejus rei dominus effectus est, si ejus rei casu possessionem amiserit, nullam habet directam in rem actionem ad eam rem persequendam : quippe ita proditæ sunt jure civili actiones, ut quis dominium suum vindicet. Sed quia sane durum erat, eo casu deficere actionem, inventa est a prætore actio, in qua dicit is, qui possessionem amisit, eam rem se usucepisse et ita vindicat suam esse. Quæ actio Publiciana appellatur, quoniam primum a Publicio prætore in edicto proposita est.

method, as by purchase, gift, dos, or legacy, to a person who has not yet become proprietor of the thing delivered, if he chances to lose the possession, he has no direct real action for its recovery; inasmuch as the civil law only permits such actions to be brought by the proprietor. But, as it was very hard that there should be no action given in such a case, the prætor has introduced one, in which the person who has lost the possession, alleges he has aquired the thing in question by usucapio, although he has not really so acquired it, and he thus claims it as his own. This action 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) 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.)

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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, cum rei publicæ causa abesset vel in hostium potestate esset, rem ejus, qui in civitate esset, usuceperit, permittitur domino, si possessor rei publicæ causa abesse desierit, tunc intra annum, rescissa usucapione, eam petere, id est ita petere, ut dicat, possessorem usu non cepisse et ob id suam esse rem. Quod genus actionis et aliis, simili æquitate motus, prætor accommodat, sicut ex latiore digestorum seu pandectarum volumine intellegere licet.

5. Conversely, if any one, while abroad in the service of his country, or a prisoner in the hands of the enemy, has acquired by usucapion a thing which belongs to another person resident at home, then the proprietor is permitted, within a year after the return of the possessor, to sue for the thing by rescinding the usucapion; that is, he may allege that the possessor has not acquired by usucapio, and that the thing therefore is his. Similar feelings of equity have led the 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.

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 experiundi 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 creditorum rem suam alicui tradiderit, bonis ejus a creditoribus ex sententia præsidis possessis, permittitur ipsis creditoribus, rescissa traditione, eam rem petere, id est dicere, eam rem traditam non esse et ob id in bonis debitoris mansisse.

6. Again, if a debtor delivers to a third person anything that is his property, in order to defraud his creditors, who have been put in possession of his goods by order of the præses, the creditors are permitted to rescind the delivery, and bring an action for the 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 Elia 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 Serviana, quæ etiam hypothecaria vocatur, ex ipsius prætoris jurisdictione substantiam capit. Serviana autem experitur quis de rebus coloni, quæ pignoris jure pro mercedibus fundi ei tenentur; quasi Serviana autem qua creditores pignora hypothecasve persequuntur. Inter pignus autem et hypothecam quantum ad actionem

7. The actio Serviana, and the actio quasi-Serviana also called hypothecaria, equally take their rise from the prætor's jurisdiction. The actio Serviana is brought to get possession of the effects of a farmer which are held as a pledge to secure the rent of the land. The actio quasi-Serviana is that by which creditors sue for things pledged or mortgaged to them; and, as regards FF

hypothecariam nihil interest: nam de qua re inter creditorem et debitorem convenerit, ut sit pro debito obligata, utraque hac appellatione continetur. Sed in aliis differentia est nam pignoris appellatione eam proprie contineri dicimus, quæ simul etiam traditur creditori, maxime si mobilis sit at eam, quæ sine traditione nuda conventione tenetur, proprie hypothecæ appellatione contineri dicimus.

D. xx. 2. 4 ; D. xx. 1.

this action, there is no difference between a pledge and a hypotheca; for the two terms are indifferently applied to anything which the debtor and creditor agree shall be bound as security for the debt; but in other points there is a distinction between them. The term pledge is properly applied to a thing which has actually been delivered to a creditor, especially if the thing is a moveable; the term hypotheca means anything bound by simple agreement without delivery.

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 hypotheca 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 ex sua jurisdictione propositas habet prætor, veluti de pecunia constituta: cui similis videbatur receptitia; sed ex nostra constitutione, cum et, si quid plenius habebat, hoc in pecuniam constitutam transfusum est, ea quasi supervacua jussa est cum sua auctoritate a nostris legibus recedere. Item prætor proposuit de peculio servorum filiorumque familias et ex qua quæritur, an actor juraverit, et alias complures.

8. There are also personal actions which the prætor has introduced in the exercise of his jurisdiction, as, for instance, the action de pecunia constituta, which that called receptitia much resembled. But by our constitution the actio receptitia has been rendered superfluous by all its advantages being transferred to the actio pecuniæ constitutæ, and has, therefore, lost its authority, and disappeared from our legislation. The prator has likewise introduced 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.