Venuleius, Interdicts, Book I. The titles to the possession and usufruct of property must not be confused, just as possession and ownership should not be intermingled. For possession is prevented if another has the use and enjoyment, nor can the usufruct of one person be computed if another is in possession of the property. 1It is clear that when anyone is forbidden to build, he is also forbidden to retain possession. 2One method of placing a person in possession of property is to prohibit any violence being manifested toward him when he enters upon it. For the judge orders the adverse party immediately to surrender and relinquish possession, which is much more decisive than to order him merely to restore it.

Venuleius, Interdicts, Book I. The ancients expressly added that violence should not be employed to prevent anyone from bringing materials suitable for repairing a road. This provision is superfluous, as anyone who does not permit materials to be brought without which a road cannot be repaired is considered to use violence to prevent the repairs from being made. 1If, however, anyone who can bring the materials necessary for the repairs by a shorter route prefers to bring them by a longer one, in order to subject him who owes the servitude to annoyance, force can be used against him with impunity, because it is he himself who interferes with the repair of the road.

Venuleius, Interdicts, Book I. The interdict is also granted where aqueducts ought to be repaired, and no inquiry is made whether a right to conduct the water exists or not. For the repair of roads is not as necessary as that of aqueducts, for if the latter are not repaired, the entire use of the water will be stopped, and persons will be exposed to death by thirst. It is evident that water cannot be obtained without repairing aqueducts; but if a road is not repaired, passage to and fro will only be rendered difficult, and this is less during the summer time.

Venuleius, Interdicts, Book I. Although the repair of existing sewers, and not the construction of new ones, is included in this interdict, Labeo says that an interdict should, nevertheless, be granted to prevent anyone from employing violence against another who builds a sewer, because the same question of public welfare is involved; as the Prætor has, by an interdict, forbidden force to be used to hinder anyone from constructing a sewer in a public place. This opinion is also adopted by Ofilius and Trebatius. Labeo also says that anyone ought, without interference, to be permitted by the interdict to clean and repair a sewer already constructed; but that the officer in charge of the public highways should grant permission to build a new one.

Venuleius, Interdicts, Book II. So that it may not be within the power of another to render my condition worse, without my being guilty of any offence.

Ad Dig. 43,24,4ROHGE, Bd. 12 (1874), Nr. 58, S. 172: Voraussetzung der Aufmerksamkeit des Geschäftsmannes bei Behandlung seiner Angelegenheiten. Seeversicherung. Kenntniß erheblicher Umstände.Venuleius, Interdicts, Book II. Servius says that he is held to have acted clandestinely, even if he thinks that no controversy will arise with reference to what he does; for it is not necessary to pay attention to every one’s inconsiderate opinion and judgment, otherwise, fools would be in a better condition than wise men.

Venuleius, Interdicts, Book II. For the origin of things of this kind is derived from the soil. Moreover, tiles are not of themselves possessed, but only with the entire edifice, nor does it make any difference whether they are attached to it, or only placed upon it.

Venuleius, Interdicts, Book II. This is because the pile of straw is not attached to the soil, but is supported by it, but buildings are attached to the soil.

Venuleius, Interdicts, Book II. Although a tenant and an usufructuary are entitled to the benefit of this interdict with reference to the crops, still, the owner will also be entitled to it if he has any additional interest.

Venuleius, Interdicts, Book II. If you have drawn over, and planted a sprout of one of my vines on your land, and it takes root, I will be entitled to the interdict Quod vi aut clam for the term of a year. If, however, the year should elapse, I shall no longer have a right of action; for even the roots which remain on my land become yours, because they are accessory. 1If anyone cultivates land with violence, or clandestinely, I think that he will be liable under this interdict, just as if he had dug a ditch; for the application of this interdict is not based upon the kind of work, but upon every description of labor which is performed upon the soil. 2If you attach a tablet to my door, and before serving notice upon you I remove it, and we then institute proceedings against one another under the interdict Quod vi aut clam, and you do not desist to enable me to be released, you should have judgment rendered against you for not restoring the property to its former condition, to the extent of my interest; or I can plead an exception based upon the fact that you have acted with violence, or clandestinely, or under a precarious title. 3If you throw manure upon my premises, after I have forbidden you to do so, Trebatius says that you will be liable under the interdict Quod vi aut clam, even though you cause me no damage, and do not change the appearance of my land. Labeo is of the opposite opinion, for he holds that anyone will not be liable under this interdict who merely makes a road through my land, or releases a bird of prey there, or hunts upon it, without constructing any new work. 4If anyone extends his roof or gutter above a tomb, even if it does not touch the monument itself, proceedings can, nevertheless, lawfully be instituted against him by means of the interdict Quod vi aut clam, because a sepulchre is not only a place intended for interment, but is entitled to all the air above it, and, on this account, the action for violation of a tomb can be brought. 5If he who served notice that he was about to undertake a new work should begin it immediately, he will not be understood to have done so clandestinely; but he will be considered to have acted clandestinely if he undertakes it after the designated time has expired.

Venuleius, Interdicts, Book III. But if I am entitled to retain possession of property by means of the interdict Uti possidetis, although the question relating to the ownership of the same may not have been decided, and I grant you possession of it under a precarious tenure, you will be liable under this interdict.

The Same, Interdicts, Book III. If anyone who is in possession merely as possessor should request the owner of the property to grant him permission to retain it under a precarious tenure, or if he who purchased property belonging to another should make this request to the owner of the same, it is evident that they will hold possession under a precarious tenure; and they should not be considered to have themselves changed their title to possession, as possession under a precarious tenure has been granted them by the owner of the land. For if you should ask another for property in your possession to be granted you under a precarious tenure, you will be considered to have ceased to possess it under the first title, and to begin to hold it under a precarious one. On the other hand, if a person who has the right to take the property away from the possessor should ask him to grant it to him by a precarious tenure, he will be liable under the interdict in question; as an advantage has been obtained by this request, that is to say, the possession which belongs to another. 1If a ward, without the authority of his guardian, should ask that property be granted him under a precarious tenure, Labeo says that he will hold precarious possession of it, and will be liable under this interdict; for where anyone has possession naturally, there is no ground for the exertion of the authority of a guardian. The words, “which you hold under a precarious tenure,” are perfectly applicable, because what he possesses he holds by the title under which he asked for the grant of the property. There is nothing new to be determined by the Prætor in this case; for if the ward holds the property, he will be required by the judge to surrender it, and if he does not hold it, he will not be liable.

Venuleius, Interdicts, Book IV. For there is not much difference between slaves and persons who have not the power to depart at their pleasure.

Venuleius, Interdicts, Book IV. If anyone restrains of his liberty a freeman who is not aware of his own condition, he will still be required to reproduce him, if he fraudulently retains him under his control. 1Trebatius, also, says that anyone who in good faith purchases a freeman as a slave, and retains him under his control, is not liable. 2A man who is free should, at no time, be fraudulently restrained of his liberty, and this is so far true that some authorities hold that not even the least delay should be allowed the person required to produce him, as he is liable to the penalty for an act which has been committed. 3This interdict does not lie in favor of a creditor, for the purpose of producing his debtor in court; for no one is obliged to produce a debtor who conceals himself, but under the Edict of the Prætor his property may be taken in execution.

Venuleius, Interdicts, Book IV. If a son is in the possession of another with his own consent, this interdict cannot be employed, because he is rather in his own possession than in that of him against whom proceedings may be instituted under the interdict, as he has free power to depart or remain; unless there is a dispute between two persons, each of whom alleges that he is his father, and one of whom demands that the child shall be produced by the other.

The Same, Interdicts, Book V. Possession which is defective is usually only advantageous as against strangers.

Venuleius, Interdicts, Book V. In the case of usucaption, the rule is observed that if the property is in possession only for a moment during the last day, the usucaption is, nevertheless, completed; for the entire day is not required for the completion of the prescribed time. 1The addition of time of possession not only includes that during which the property remained in the hands of the vendor but also the time that the purchaser held it, where the latter also disposed of it. If, however, one of the vendors was not a bona fide possessor, the possession of those who preceded him will be of no advantage, because the possession is not continuous, just as the possession of a vendor cannot be added to that of someone who is not in possession. 2It must also be added that, if you purchased the property yourself, or ordered someone else to do so, and he also directed it to be sold to a third party, continuity of possession is necessary. If, however, he who is directed to sell the property, should direct another to sell it, Labeo says that the addition of possession of him who gave the second mandate should not be allowed, unless the owner consents for this to be done. 3But if I purchase property from a son under paternal control, or from a slave, the addition of the time during which it was in possession of the father, or the master, should be granted me, if the property was sold either with the consent of the father or the master, or as part of the peculium of the slave who was entrusted with its administration. 4The time of possession by a ward is also added to that of a person who purchased the property from his guardian. The same rule should be observed in the case of anyone who buys property from the curator of a minor or an insane person. If the sale has been made in behalf of an unborn child, or because possession of the property has been obtained for the purpose of its preservation, or it is diminished on account of a dowry, this addition of the time of possession will also be permitted. 5These rules relating to additions of the time of possession are not understood to be as comprehensive as their language indicates; for, even if the property remains in the hands of the vendor after its sale and delivery, the purchaser will only be entitled to the benefit of the time which preceded the sale, even though the vendor did not have the property in his possession when it was sold. 6Where an heir sells to anyone property belonging to the estate, the latter will be entitled to the benefit of the time it remained in the hands of the heir, as well as to that during which it was in the possession of the deceased.

Venuleius, Interdicts, Book VI. When a pregnant woman is bequeathed, acquired by usucaption, or alienated in any other way, and brings forth a child, it will become the property of him who purchased her, and not of him to whom she belonged when she conceived.

Venuleius Saturninus, Interdicts, Book VI. From this it may be gathered that not even a part of the price paid by the purchaser should be returned to him. It can, however, be said that the matter ought to be investigated by an arbiter, to the end that he may order the money to be refunded, if it still is among the effects of the debtor; because, in this way, no one will be defrauded.

Venuleius Saturninus, Interdicts, Book VI. Cassius introduced an action having reference to property which comes into the hands of an heir.

Venuleius, Interdicts, Book VI. When a fraudulent debtor gives a release to someone who owes him, with the knowledge of the surety of the latter, and the principal debtor was not ignorant of the fact, both parties will be liable, or at least the one who was familiar with the circumstances. Where, however, he who was released was not solvent, let us see whether the action should be granted against the principal debtor, even if he was ignorant of the facts, because he received the debt as a donation. On the other hand, if the release was given to the principal debtor and he was aware of the fraud, his surety will also be liable, if he also was aware of it; but if he did not know of it, why should not an action also be granted against him, as he does not sustain any more damage than he obtains benefit? Where there are two principal debtors, the case of both is the same. 1Where a son-in-law accepts a dowry from his father-in-law, knowing that he intends to defraud his creditors, he will be liable under this action. If he returns the property, he will cease to have the dowry, and Labeo says that nothing should be returned to an emancipated daughter, after a divorce has taken place, because this action is granted for the purpose of recoyering the property and not to inflict a penalty; and hence the defendant, by making restitution, is discharged from liability. If, however, before the creditors have brought suit against the father-in-law, the son-in-law should return the dowry to the daughter, he can be sued in an action on dowry; and Labeo holds that he will still be liable under this action, without having any recourse against the woman. But let us see whether he will have a right to claim anything without instituting judicial proceedings. If he was ignorant of the fraudulent intent of the father-in-law, but the daughter knew it, she will be liable; and if both of them knew it, they will both be liable. If neither of them knew it, some authorities hold that an action against the daughter ought, nevertheless, to be granted, because it is understood that something in the form of a donation has come into her hands; or, at all events, she should give security to return whatever she may obtain. An action, however, should not be granted against the husband, if he was ignorant of the intended fraud, as he would not have married a wife who had no dowry; any more than it should be granted against a creditor who receives what is due to him from a debtor intending to commit a fraudulent act. 2Likewise, if a stranger, for the purpose of defrauding his creditors, gives a dowry to a girl under paternal control, her husband will be liable if he was aware of his intent, and the woman also, as well as her father, if he was not ignorant of it; so that the husband must give security to return the dowry if it should come into his hands. 3If an agent, without the knowledge of his principal, orders a slave to receive property from a debtor who has the intention of defrauding his creditors, and he is aware of this, he himself, and not his principal, will be liable to this action. 4Ad Dig. 42,8,25,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 463, Note 17.Not only must the property which has been alienated be returned, but also any crops which have taken root in the earth at the time of the alienation, because they constitute part of the property of the fraudulent debtor, as well as those which were gathered after the suit was begun. Any crops gathered in the meantime will not, however, be included in the restitution. In like manner, the offspring of a female slave who has been fraudulently alienated, which was born in the meantime, will not be included in the restitution, because it did not form part of the property of the debtor. 5Ad Dig. 42,8,25,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 463, Note 17.Proculus says that, if a female slave conceives after the alienation took place, and has a child before suit is brought, there is no doubt that the child should not be returned. If, however, she was pregnant at the time she was sold, it may be said that the child must also be returned. 6Ad Dig. 42,8,25,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 463, Note 17.With reference to crops attached to the soil, Labeo says that by this expression it is not clear whether the Prætor meant the crops which were ripe, or also those which had not yet matured. Moreover, if he referred to those which were ripe, possession need not be restored on that account, for when a tract of land is alienated, the land and everything attached to it are held to constitute but one thing, that is to say, the crops are included in an alienation of any kind; nor should he be understood to have two different things, who, during the winter, has a tract of land which is worth a hundred aurei, and at the time of harvest or vintage, can sell the crops for ten aurei, that is to say, the land is worth a hundred aurei, and the crops are worth ten; but as he has but one thing, that is, the tract of land worth a hundred aurei, so also he has but one thing who can sell his house separate from the land. 7Ad Dig. 42,8,25,7ROHGE, Bd. 13 (1874), Nr. 122, S. 381: Besitz als Voraussetzung der actio Pauliana.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 463, Note 25.This action is also granted against a fraudulent debtor, although Mela does not think that it ought to be done, because none is granted against him for anything which took place before the sale of his property, and it would be unjust for an action to be granted against one who had been deprived of all his possessions. If, however, he should lose some of them and they cannot be recovered in any way, an action will, nevertheless, be granted against him. The Prætor is not considered to take into account the benefit of this proceeding in the case of one who had been deprived of his property by way of penalty.