The Same, On the Edict, Book XVI. There is no doubt that the Senate can make law.

Ulpianus, On the Edict, Book XVI. All acts performed by the Imperial Steward are approved by the Emperor, just as if they had been performed by himself. 1If the Imperial Steward disposes of any property which belongs to the Emperor as his own, I do not think that the ownership of the same is transferred; for he only makes a legal transfer while he is conducting the business of the Emperor and delivers it with his consent; for if he performs any act for the purpose of effecting a sale, a gift, or an agreement, it is void; as he has no authority to alienate the Emperor’s property, but only to diligently administer it. 2It is a special function of the Imperial Steward that, by his order, a slave of the Emperor may enter upon an estate, and if the Emperor is appointed heir, the Procurator, by interfering with a rich estate, makes the Emperor the heir.

Ulpianus, On the Edict, Book XVI. Next in order comes the action open to parties to whom an estate is delivered. Anyone who receives an estate which has been delivered in compliance with a decree of the Senate in pursuance of which rights of action pass, can make use of the action for the recovery of an estate founded upon a trust:

Ulpianus, On the Edict, Book XVI. Nor does it make any difference whether a person was requested to deliver the property to me or to him to whom I am the heir; and if I am the possessor of the estate of some other successor of the party to whom it was left in trust, I can proceed by means of this action. 1It must be remembered that this action will not lie against anyone who surrenders the estate. 2These actions which are granted to me can be brought in favor of my heir, as well as against him.

Ulpianus, On the Edict, Book XVI. After actions which are open for the recovery of an entire amount, there is added the action for the recovery of certain specific property. 1This action in rem for the recovery of specific property is applicable to all movables, both animals and to such things as are destitute of life, as well as to those where land is involved. 2By means of this action, however, no claim can be asserted for persons who are free but over whom we have some control, as for instance, children who are subject to paternal authority; hence proceedings instituted on their account are either investigations by a magistrate, or interdicts, or suits brought before the Prætor; and as Pomponius says in the Thirty-seventh Book: “Unless the party states the nature of his claim”; as where he claims his son as belonging to him, or being under his control, in accordance with the law of Rome. In this instance it seems to me, as well as to Pomponius, that his method of procedure is proper, for he says that a party can, under the law governing Roman citizenship bring an action for recovery where he states the basis of his claim. 3Ad Dig. 6,1,1,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 137, Note 6.By means of this action not only can specific property be recovered, but, Pomponius, in the Twenty-fifth Book of Passages, says that an action may be brought for a flock, and also for a herd of cattle, and for a stud of horses, as well, and it may be said for all other animals which are kept together in droves. It is sufficient if the flock itself belongs to us, even though individual heads of the same may not be ours, for it is the flock which is claimed, and not the individuals constituting the same.

Ulpianus, On the Edict, Book XVI. Ad Dig. 6,1,3 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 137, Note 6.Marcellus states in the Fourth Book of the Digest, that a man had a flock of three hundred head of which he lost one hundred, and purchased an equal number of others from a person who owned them, or was the bona fide possessor, although they belonged to some one else; these animals also he says will be included in the suit for recovery; and even where there are no others remaining, except such as have been purchased, he can still include them in his suit to recover the flock. 1The objects which compose the equipment of a vessel must be sued for separately, and suit for the boat belonging to the ship also must be brought in the same manner. 2Pomponius says that where articles of the same description are so confused and mingled that they cannot be detached and separated, an action must be brought to recover, not all of them, but a portion of the same; as for instance, where my silver and yours is melted into a single mass it will be our common property; and either of us can bring an action for the recovery of an amount proportionate to the weight which we own in said mass, even though it may be uncertain to what weight each one of us is entitled.

Ulpianus, On the Edict, Book XVI. Pomponius also says that where grain belonging to two persons was mixed without their consent, each one of them will be entitled to an action in rem for such an amount of the heap as appears to belong to him; but, where the grain was mingled with their consent, it will then be held to be in common, and an action for the division of property owned in common will lie. 1He also says that if a mixture should be made of my honey and your wine, some authorities think that this also becomes common property; but I maintain the better opinion to be, (and he himself mentioned it) that the mixture belongs to the party who made it; as it does not retain its original character. Where, however, lead is mixed with silver, for the reason that it can be separated it will not become common property, nor can an action for the division of common property be brought; but an action in rem will lie because the metals can be separated. But he says that, where they cannot be separated, as for instance, where bronze and gold are mixed, suit for recovery must be brought in proportion to the amount involved; and what was stated with reference to the mixture of honey and wine will not apply, because though both materials are mingled, they still remain. 2He also states that where your stallion impregnated my mare, the colt will not be yours but mine. 3With reference to a tree which was transplanted into the field of another and threw out roots, Varus and Nerva granted an equitable action in rem; for if it had not yet taken root, it would not cease to be mine. 4Where proceedings in rem are instituted, and the parties agree with reference to the property sued for, but a mistake is made in the name of the latter, it is held that the action is properly brought. 5Where there are several slaves of the same name, for instance, several called Eros, and it is not apparent to which one the action refers, Pomponius says that no decision can be rendered.

Ulpianus, On the Edict, Book XVI. In this action, the duty of the judge would be to learn whether the defendant is in possession or not; but it is not important under what title he holds possession; for where I have proved the property to be mine, the possessor will be required to surrender it unless he pleads some exception. Certain authorities, however, and Pegasus among them, hold that the only kind of possession involved in this action, is that which applies where an interdict Uti possidetis or Utrubi is applied for; as he says that where property is deposited with anyone, or loaned to him; or where he hired it; or is in possession of the same to insure the payment of legacies or of a dowry; or in behalf of an unborn child; or where security was not given for the prevention of threatened injury; since none of these instances admit of possession, an action for recovery cannot be brought. I think, however, that suit can be brought against anyone who holds property and has the power to surrender it.

Ulpianus, On the Edict, Book XVI. Unless the plaintiff prefers that the property should be delivered at his own expense and risk, where judgment is rendered; for then provision will be made, with security, for delivery.

Ulpianus, On the Edict, Book XVI. Not only must the property be delivered, but the judge must take into account any deterioration which it may have sustained. Suppose, for instance, that a slave is delivered who has been weakened, or scourged, or wounded; the judge must then consider to what extent he may have been diminished in value, although the possessor can be sued in an action under the Lex Aquilia. Wherefore the question arises whether the judge ought not to estimate the amount of damage caused, unless the right of action under the Lex Aquilia is relinquished? Labeo thinks that the plaintiff is obliged to give security that he will not bring suit under the Lex Aquilia; and this opinion is the correct one.

Ulpianus, On the Edict, Book XVI. Again, if the defendant delivers the slave after he has been scourged, Labeo says that the plaintiff is also entitled to an action for injury. 1Where anyone sells property through necessity, perhaps it will be the duty of the judge to relieve him so that he will only be compelled to deliver the purchase-money; for if he has gathered the crops and sold them to avoid their being spoiled; in this instance he will not be compelled to deliver anything more than the price. 2Moreover, if there was a field for which suit was brought, and it was assigned to soldiers, in consideration of a small sum paid to the possessor, must the latter deliver this also? It is my opinion that he must do so. 3Where suit is brought for a slave, or for some animal which died without its death being caused by the malice or negligence of the possessor, several authorities hold that the price should not be paid. The better opinion, however, is that where the plaintiff would have sold the property if he had obtained it, then the value ought to be paid if the party was in default, for if he had delivered it, the other might have sold it and have profited by the price.

Ulpianus, On the Edict, Book XVI. Ad Dig. 6,1,17 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 327, Note 12.Julianus says in the Sixth Book of the Digest, that if I purchase a slave from Titius, who belonged to Mævius, and afterwards, when Mævius brings an action against me to recover him, I sell him, and the purchaser kills him, it is but just that I should pay the price received for him to Mævius. 1Julianus also states in the same Book, that if the possessor is in default in delivering a slave, and the latter dies, an account of the profits which accrued up to the time when the case was decided must be taken into consideration. Julianus also says that not only the profits must be surrendered, but everything connected with the property itself; and therefore the offspring of a female slave, as well as the profits derived from the latter. So far does this principle extend, that Julian states in the Seventh Book, that if the possessor should acquire the right of action through the slave under the Lex Aquilia, he should be compelled to assign it. But if the possessor should fraudulently have relinquished possession, and someone has wrongfully killed the slave, he can be compelled either to pay the value of the slave, or to assign his own right of action, whichever the plaintiff may prefer. He must also surrender any profits which he may have obtained from another possessor, as he cannot realize anything through a slave the title of whom is in litigation. He is not, however, obliged to surrender any profits which have accrued during the time when the slave was in possession of the party who recovered him in a suit. What Julianus states concerning an action under the Lex Aquilia is applicable where the possessor has acquired a right to the slave by usucaption, after issue has been joined, because he then begins to have a perfect title.

Ulpianus, On the Edict, Book XVI. Labeo says that security must also be given by the defendant that everything has been properly transacted with reference to the property in question; for example, where he has furnished security for the prevention of threatened injury.

Ulpianus, On the Edict, Book XVI. Where the slave escapes through the fraud of the possessor, judgment shall be rendered against him as if he was in possession.

Ulpianus, On the Edict, Book XVI. If you purchased the land of Sempronius from Titius, and after the price has been paid it is delivered to you, and then Titius becomes the heir of Sempronius, and sells and delivers the same land to another party, it is just that you should be preferred; for even if the vendor himself should bring suit against you to recover the property, you can bar him by an exception; but if he himself was in possession, and you should bring an action against him, you could make use of a replication against an exception on the ground of ownership.

Ulpianus, On the Edict, Book XVI. The Prætor promises an action in rem where proper cause is shown.

Ulpianus, On the Edict, Book XVI. The Prætor says: “Where anyone desires to institute proceedings to recover property delivered to him for good reason, and the title to which has not yet passed by usucaption, I will grant him an action.” 1The Prætor says, and very properly, “Where the title has not yet passed by usucaption”; for, if this has once taken place, he has a right to a civil action and does not require an honorary one. 2But why did he merely mention delivery and usucaption, when there are numerous provisions of the law by means of which anyone may obtain ownership, as, for instance, in case of a bequest?

Ulpianus, On the Edict, Book XVI. And there are many other provisions of the law to the same effect. 1Ad Dig. 6,2,3,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 179, Note 7.The Prætor says: “He may bring suit for a good reason”; and not only is the Publician Action available by a purchaser in good faith, but also by others; as for instance, by one to whom property has been transferred by way of dowry, and which has not yet been acquired by usucaption; for a very good cause of action exists whether the property given by way of dowry was appraised or not. Likewise, where property is transferred on account of a judgment:

Ad Dig. 6,2,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 199, Note 6.Ulpianus, On the Edict, Book XVI. Or for the surrender of a slave in lieu of damages, whether there was good ground for this, or not.

Ulpianus, On the Edict, Book XVI. But if the property has been adjudged to me, I can bring the Publician Action. 1Where the value of the property is estimated in court it resembles a slave; and Julianus says in the Twenty-second Book of the Digest that, if the defendant tenders the amount of the appraisement, the Publician Action will lie. 2Ad Dig. 6,2,7,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 199, Note 5.Marcellus, in the Twenty-seventh Book of the Digest, says that where anyone purchases property from a person who is insane, being ignorant that this was the case, he can acquire it by usucaption; and therefore he will have a right to the Publician Action. 3Where anyone obtains property as a gift, he is entitled to the Publician Action; which also will lie against a donor; for the plaintiff is a lawful possessor where he accepts a donation. 4Ad Dig. 6,2,7,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 199, Note 6.Where a party purchases property from a minor, being ignorant that he is such, he has a right to the Publician Action. 5Also where an exchange has been made, the same action will lie. 6The Publician Action is not based on the question of possession, but upon that of ownership. 7If you tender me an oath in a suit which I have brought for the recovery of property, and I swear that the said property is mine, I am entitled to the Publician Action, but only against you; for the only person who can be prejudiced by the oath is the party who tendered it. If, however, the oath is tendered to the possessor, and he swears that the property does not belong to the plaintiff, he can make use of an exception only against the latter; for it does not operate to the extent of granting him a right of action. 8In the Publician Action, all those rules must be observed which we have mentioned in the action for the recovery of property. 9This action lies in favor of an heir as well as of prætorian successors. 10If I do not make a purchase, but my slave does, I am entitled to the Publician Action. The same rule applies where my agent, guardian, curator, or anyone else transacting my business makes a purchase. 11The Prætor says: “Who purchases in good faith”; therefore, it is not every purchase which can profit by the action, but only one made in good faith; hence it is enough if I am a purchaser in good faith even if I should not buy from the owner, although he may have made the sale to me with fraudulent intent; for the fraud of a vendor will not prejudice me. 12In this action it will be of no disadvantage to me if I am the successor of the purchaser, and acted fraudulently, where the party himself whom I succeeded made the purchase in good faith; and it will not profit me if I was not guilty of fraud, where the purchaser whom I succeeded was guilty of fraud. 13If, however, my slave made the purchase, his fraud, and not mine, must be considered; and vice versa. 14The Publician Action has reference to the time of the purchase, and therefore it is held by Pomponius that nothing which was fraudulently done, either before or after the purchase was made, can become the subject of investigation in this action. 15This action has reference to the good faith of the purchaser alone. 16Therefore, in order for the Publician Action to be available, the following conditions must exist: the person who made the purchase must have acted in good faith, and the property purchased must have been delivered to him with that understanding. But even if he made the purchase in good faith, he cannot make use of the Publician Action before delivery. 17Julianus stated in the Seventh Book of the Digest, that the delivery of the property purchased must be made in good faith; and therefore if the party knowingly fakes possession of something that belongs to another, he cannot avail himself of the Publician Action, because he will not be able to acquire the property by usucaption. Nor must anyone think that it is our opinion that it is sufficient for the purchaser to be ignorant that the property belonged to another at the commencement of delivery, in order to enable him to make use of the Publician Action, but it is necessary that he should be a bona fide purchaser at that time also.

Ulpianus, On the Edict, Book XVI. The Publician Action is equally available whether the property is delivered to the purchaser or to his heir. 1Where a party purchases property which has been deposited with him, or loaned or pledged to him, it must be considered as having been delivered, if it remains in his possession after the purchase. 2The same rule will apply where the delivery preceded the purchase. 3Moreover, if I purchase an estate, and certain property belonging to it has been delivered to me for which I wish to bring suit, Neratius states that I will be entitled to the Publician Action. 4Ad Dig. 6,2,9,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 199, Note 13.Where anyone sells the same property separately to two bona fide purchasers, let us see which of them has the better right to the Publician Action; he to whom the property was first delivered, or he who merely bought it? Julianus, in the Seventh Book of the Digest, states: “That if the parties made the purchase from the same person who was not the owner, he will be preferred to whom delivery was made first; but if they buy said property from different persons who were not the owners, the one in possession is in a better legal position than the one who brings the action; and this opinion is correct.” 5This action is not available with reference to property which cannot be acquired by usucaption; as, for instance, in the case of articles that had been stolen, or fugitive slaves. 6Where a slave belonging to an estate purchases property before the estate has been entered upon, and after delivery loses possession of the same; the heir, very properly, has a right to the Publician Action, just as if he himself had been in possession. The members of a municipality also, where property has been delivered to their slave, will be in the same position;

Ulpianus, On the Edict, Book XVI. Where I have made a purchase, and the property has been delivered to another party at my request, the Emperor Severus stated in a Rescript that the Publician Action should be granted him. 1Ad Dig. 6,2,11,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 217, Note 9.The Publician Action is granted where suit is brought for the recovery of an usufruct which has been delivered, and also where servitudes of urban estates have been created by delivery, or by sufferance; for instance, where a party allowed an aqueduct to be built through his house. The same rule applies in the case of rustic servitudes, for it is established that in this case delivery and sufferance protect them. 2The offspring of a stolen female slave that was conceived while she was in possession of a bona fide purchaser, can be recovered by means of this action; even if the child was not in possession of the party who purchased it; but the heir of the thief is not entitled to this action, because he is the successor to the defective title of the deceased. 3Sometimes, however, even though the mother who was stolen had not been sold, but was presented to me (I being ignorant of the fact) and she afterwards conceived and brought forth while in my possession, I am entitled to a Publician Action to recover the child, as Julianus says; provided that, at the time I bring suit, I do not know that the mother was stolen. 4Julianus also states, in a general way, that no matter how I could acquire the mother by usucaption, if she had not been stolen, I can acquire the child in the same way, if I was ignorant that the mother had been stolen. Therefore, in all these instances, I will be entitled to the Publician Action. 5The same rule applies in the case of the child of the daughter of a female slave, even if it was not born, but after the death of its mother was extracted from her womb by the Cæsarean operation; as Pomponius stated in the Fortieth Book. 6He also says that where a house has been purchased and is destroyed, any additions made to it can be recovered by an action of this description. 7Where an accession is made to land by alluvial deposit, it becomes of the same nature as that to which it is added; and therefore since the land itself cannot be recovered by a Publician Action, the addition cannot be either; but if it can, the portion added by alluvion may be also recovered; and this was mentioned by Pomponius. 8He also adds that, where an action is to be brought for parts of a purchased statue which have been removed, a similar action is available. 9He also states, that if I purchase a vacant lot and build a house upon it, I can properly make use of the Publician Action. 10He also says, if I build a house, and the lot afterwards becomes vacant, I can likewise make use of the Publician Action.

Ulpianus, On the Edict, Book XVI. Papinianus states in the Sixth Book of Questions, that where a man forbids delivery or gives notice, and the property has been sold by his agent at his request, and the agent delivered it in spite of this; the Prætor will protect the purchaser, whether he is in possession, or whether he brings an action to recover the property. But where the agent is compelled to make payment to the purchaser on account of an action based on purchase, the former can recover in a counter action on mandate; for it might happen that the property could be recovered from the purchaser by the party who gave the order to sell it, because through ignorance he did not make use of the exception which he should have pleaded, for instance: “If the party with whom I dealt did not make the sale with your consent”.

Ulpianus, On the Edict, Book XVI. Julianus says that those to whom the administration of their property has been forbidden by the Prætor can transfer nothing to anyone, because they have no control over the property, as they are excluded from the exercise of their civil rights. 1Ad Dig. 27,10,10,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 442, Note 4.The curator of an insane person can legally deliver his own property as belonging to the said insane person, and transfer the ownership of the same; but if he should deliver the property of the insane person as belonging to himself, it must be said that he does not transfer the ownership, because he did not do so while transacting the affairs of the insane person.

Ulpianus, On the Edict, Book VI. An estate is considered to have been transferred where either the iproperty itself is delivered, or the heir is permitted to acquire possession of the property belonging to the estate, either wholly or in part, in such away that one of the parties is willing to transfer it and the other to receive it, but not if the heir should think that you have obtained possession for any other reason. The same rule must be held to apply where the possession is afterwards ratified. If, however, the heir should state that he transferred the property himself, or did so by a letter, or a messenger, he shall be heard. If he should deliver it to someone else, with your consent, the rights of action against you will also be transferred. Likewise, if another than the heir should transfer the estate by my order, or the heir should ratify the transfer, the rights of action will be considered to have passed. 1Moreover, a ward should himself make a transfer of an estate with the authority of his guardian, but the guardian cannot do so without the consent of his ward, unless the latter is an infant; because a guardian cannot assign the rights of action belonging to his ward. The Divine Severus, in the case of a ward named Arrius Honoratus, decreed that a ward could not transfer an estate merely by the authority of his guardian, where the said Arrius Honoratus made a transfer of this kind to his uncle and guardian Arrius Antoninus. 2When an estate is to be transferred to a ward, it is established that this cannot be done by the latter without the authority of his guardian.

Ulpianus, On the Edict, Book XVI. Moreover, an estate cannot be indiscriminately transferred to the guardian himself.

Ulpianus, On the Edict, Book XVI. Where property belonging to another has been purchased in good faith, the question arises in order that the usucaption may run, whether, for the preservation dt good faith, it should date from the beginning of the purchase, or from the time of delivery. The opinion of Sabinus and Cassius, which is that it dates from the time of delivery, has been adopted. 1Ad Dig. 41,3,10,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 213, Note 1.It is our practice that servitudes can never, of themselves, be acquired by usucaption, but that this can be done along with the buildings upon which they are imposed. 2Ad Dig. 41,3,10,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 144, Noten 2, 4; Bd. I, § 182, Note 6.Scævola, in the Eleventh Book of Questions, says that Marcellus thought that if a cow should conceive while in the possession of a thief, or of his heir, and bring forth while in the possession of his heir, the calf, separated from its mother, cannot be acquired by usucaption by the heir; just as he says this cannot be done with the child of a female slave. Scævola, however, states that, in his opinion, the child can be acquired by usucaption, because it does not form part of the stolen property. If, however, it should be a part of it, it can be acquired by usucaption, if it was born while in possession of a bona fide purchaser.

The Same, On the Edict, Book XVI. If the curator of the Emperor should sell anything, even though he may promise double or triple the amount in case of eviction, the Treasury shall only be liable for the original sum. 1When anything belonging to the Treasury is sold by one who has the right to dispose of such property, it will immediately belong to the purchaser, as soon as the price has been paid.

Ulpianus, On the Edict, Book XVI. Scævola, in the Eleventh Book of Questions, says that the child of a slave who has been stolen is not a part of the stolen property.