Paulus, On the Edict, Book XII. Where a bond or an undertaking is given, which is defective, it is held that it is no bond at all.

Paulus, On the Edict, Book XII. As, for example, magistrates.

Paulus, On the Edict, Book XII. Labeo very properly says that a party who has been appointed heir, and granted his freedom, is not included in the terms of the Edict before he really becomes the heir; for before that, he cannot hold property, and the Prætor speaks of men who are free. 1I am of the opinion, however, that the son of a family conies within the terms of this Edict where his castrense peculium is involved.

Paulus, On the Edict, Book XII. Relief is not granted to persons who are negligent, but only to those who are hindered by force of circumstances. All this is to be referred to the judgment of the Prætor; that is to say, he must only grant restitution where a person could not join issue by reason of want of time, and not where he was guilty of negligence.

Paulus, On the Edict, Book XII. It must be remembered that we grant the aid of restitution when the parties have attained their majority, only where they attempt to recover their property; and not where they desire relief to be given them, for the purpose of gain, or to inflict a penalty or loss on some other person.

Paulus, On the Edict, Book XII. It must, therefore, be remembered that this Edict is only operative where when the friends of the party were asked whether they would defend him, or where there was no one who could be asked to do so; for an absent person is not considered to be defended if the plaintiff of his own accord calls upon him, and no one offers himself to conduct the defence, and thus must be established by evidence. 1Therefore, as the Prætor is not willing that the parties should suffer loss; so, on the other hand he does not permit them to obtain any advantage. 2Labeo states that this Edict also has reference to insane persons, infants, and municipalities.

Paulus, On the Edict, Book XII. The Edict also has reference to those who, when sued, attempt to embarrass the plaintiff, and endeavor by delay and artifice to prevent the trial of the case.

Paulus, On the Edict, Book XII. And where a person loses something, or fails to obtain a profit, restitution should be granted, even though none of his property was lost.

Paulus, On the Edict, Book XII. Where a soldier who has acquired a right to property by usucaption dies, and his heir completes the time required for it, it is just that what has been acquired subsequently to his death should be rescinded; and the same rule should be observed in the case of heirs who succeed to the right of usucaption, as the possession of the deceased being, as it were, joined to the estate, should descend to the heir, and very frequently the right becomes complete before the estate has been entered upon. 1Ad Dig. 4,6,30,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 120, Note 3.Where a person who has been absent in the service of the State has obtained property by usucaption, and afterwards alienates it, restitution should be granted; and even though there was no fraud connected with his absence and his acquisition of ownership, he should be prevented from profiting by them. Also, in all other cases, restitution should be granted just as if judgment had been rendered against him.

Paulus, On the Edict, Book XII. A person is liable under this Edict, even where he produces the property, if he does not, after notification by the judge, place the case in its original condition. 1The Prætor says: “Or an alienation made for the purpose of changing the conditions of the trial”; that is to say, the conditions of a future trial and not these of the present one. 2To “alienate” is also understood to sell the property of another. 3But where a person alienates anything either by appointing an heir, or by making a bequest, the Edict will not apply. 4Where anyone alienates property, and takes it back again, he will not be liable under this Edict. 5Where a purchaser compels his vendor to take back the property sold, he is not considered to have alienated it for the purpose of changing the conditions of the trial.

Ad Dig. 6,1,8Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 142, Note 4.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.

Paulus, On the Edict, Book XII. “If the ward should be ignorant that his guardian is not genuine”, Labeo holds that this applies where the ward has been informed of the fact, and in good faith refused to believe it.

Paulus, On the Edict, Book XII. Relief is afforded to a minor under twenty-five years of age who had knowledge.

Paulus, On the Edict, Book XII. In any transaction, the knowledge of a ward should not be taken into account, but only that of his guardian should be considered. Therefore, even if security has been furnished the ward, it is held to be better for the property of the latter to be restored to him, than for him to depend upon the uncertain result of the security. This Julianus gave as his opinion in any case where a ward has been defrauded.

Paulus, On the Edict, Book XII. Hence Sabinus says that where the plaintiff did not recover the entire amount from one of them, he should not be refused recourse against the others for the deficiency.

Paulus, On the Edict, Book XII. Labeo and Neratius held that all the property which slaves have acquired as their peculium can be obtained by usucaption, because it is obtained in this way by their owners, even without the knowledge of the latter. Julianus says the same thing. 1Pedius says that a person who cannot acquire anything by usucaption in his own name cannot acquire it by his slave.

Paulus, On the Edict, Book XII. No one can leave to his heir any rights which he himself does not possess.