IN considering the various actions in detail we cannot do better than set out with the short and of an action. simple definition of Ulpian: Actionum genera duo Definition sunt, in rem quæ dicitur vindicatio, et in personam quæ condictio appellatur1. All actions are referable to one of these two heads. But before we proceed to examine each particular action in itself it will be convenient to have a clear conception of the different actions as they arose either from law or equity. In the first place actions were either Civil or civil and Prætorian, the former based upon the strict jus prætorian. Civile, the latter emanating from the Album of the Prætor: the former were called directa and vul- Directa and vul gares2; the latter, fictitiæ and utiles, which were garis. in each case one and the same. We have also the Fictitia actions stricti juris, bonæ fidei, and arbitrariæ. Stricti These may be said to be confined entirely to mat-juris. 1 D. XLIV. 7. 25. and utilis. Bona fidei. ria. IV. BOOK ters of contract. The first were such as those wherein the plaintiff's claim rested upon the express words of the contract, and to which the judge was strictly confined in his decision: the contract of mutuum would be an example. In the second, the judgment might extend to that which was not promised by express words merely, but to all that might be fairly implied in the agreement; and the judge was allowed to adjust the respective claims of the parties to the suit, provided they came within the question before him, such as the set-off of mutual debts'. The third were tried before the arbiter, who appears to have been invested with more extensive powers than the judex, amounting to a general settlement of all matters in dispute between the parties2. Actions and posses soriæ. Having premised thus much, we will proceed to examine briefly the different actions under the head of actio realis or vindicatio. It must be observed that these actions were petitoriæ classed under two heads, petitoriæ and possessoriæ: the first where the action was brought to obtain possession of that which the plaintiff declared to be his ex jure quiritium; the second, for quiet possession, where he had possession, but which was disturbed by the unlawful acts of another. Rei vindicatio. I. Rei Vindicatio. This was the oldest action with reference to property. The form of it under the Legis actiones is described by Gaius, as well as under the formulary system. The right of vindication was inherent in the dominium quiritarium, which is defined as Jus in re corporali, ex quo facultas de ea disponendi eamque vindicandi nascitur, nisi vel lex, vel conventio, vel testatoris voluntas obsistats. The action must be brought for the specific thing, for if the value only were claimed, it became a condictio, and not a vindicatio. 1 Gai. IV. 63. 3 Gai. IV. 16. ▲ Id. 41. 2 Fest. sub voc. V. Dominium being divisible into plenum and CHAP. minus plenum', it must be observed that the vindicatio directa was only applicable to the former. Vindicatio Wheresoever, therefore, the dominium was minus directa plenum the remedy must be by a vindicatio utilis. The actor must sufficiently describe his property, that it may be identified in the hands of the reus; nor will the judge inquire the grounds of the possession, it being the business of the reus to plead any just claim he may have2. The actor is entitled to the thing claimed, with all its mesne profits, but he must indemnify the bona fide possessor for any expenses laid out upon it. Dr Colquhoun sums up this action as follows: The actio rei vindicationis competit domino directe ex dominio pleno, utiliter ex dominio minus pleno contra quemcunque possessorem, vel verum vel falsum in id, quod actor dominus declaretur, eique restituatur cum omni causa, accessionibus, fructibusque pro qualitate possessionis". and utilis. 2. Actio Publiciana. This was an actio in Actio Pubrem introduced by the Prætor for the relief of liciana. those who had come lawfully into possession, as by purchase, gift, or legacy, and had lost possession before the time had expired for completing usucapion. In such case there was no dominium quiritarium, and therefore no actio directa ad rem persequendam: the period of usucapion was therefore supposed to have expired. The Prætor's edict ran thus: Si quis id quod traditur ex justa causa non a domino, et nondum usumcaptum, petet: judicium dabo. And Ulpian remarks that the words ex justa causa apply to every lawful possession. We must of course assume there has been no mancipatio, nor in jure cessio. This action will lie for usufructs and services. For what In the case of purchase, where delivery is neces- the action lies. IV. BOOK sary to complete the contract, the action will not lie where there has been no delivery either to the buyer1 or some one on his behalf. It follows that the action will not lie for things incapable of usucapion. It extends to heirs and bonorum possessores. Lastly, it is a quasi vindicatio founded on the equity of giving the thing claimed to him who has the best title to it. The question, why the actor cannot sue the possessor personally, is answered by Gaius; because the thing being already his, he sues for possession of it, and not for the thing itself; and therefore the form dare oportere cannot apply. Actio Recis- 3. Actio Recissoria. This was an action introduced by the Prætor for the benefit of those who, while being absent on public service, or prisoners of war, some one had obtained possession of their property, and so claimed it on the ground of usucapion. The edict adopting the principle of the jus postliminii compelled restitution to the real owner. soria. Actio Confessoria. Actio negatoria. 4. The actio confessoria directa was an action in rem, because it related to the plaintiff's claim to a service, which, though in itself incorporeal, was attached to corporeal property. Thus, where one was disturbed in the enjoyment of a usufruct, or in the case of any rural or urban service, as of his right itineris, actus, viæ, &c., or oneris ferendi, altius tollendi, &c., the actio confessoria lies against the party who denies the existence of the right, and opposes any obstacle to the enjoyment of it. The actio negatoria directa provided a remedy for those proprietors from whom a right of service was claimed, and who sued for the quiet enjoyment of their property, and the exemption from all intrusion, on the ground of a servitus which V. they denied to have any existence'. These actions CHAP. were extended utiliter to other rights which could not be included in the category of services2. 5. Hereditatis petitio was an actio in rem, Hereditatis where the plaintiff claimed the possession of an Petitio. estate, either as heir-at-law or as testamentary heir; and the action was brought to obtain the universum jus defuncti, where the plaintiff claimed as heir ex asse3. As the jus hereditarium might be based as well Civil and on the edict as the law, the action might be either prætorian. Civil or Prætorian. The Civil action could only be brought by the heres himself; or by the pater, or dominus, where the son or slave had been instituted heir ex testamento. The right also extended to the heir of the heir1. The action lay against him who possessed pro herede, i.e. he who was in possession of the estate without regard to whether he possessed bona fide or mala fide. The hereditas must be restored with all accessions; but in this respect the position of the bona fide possessor was better than that of the mala fide possessor. They must account alike for all profits arising after the litis contestatio, but the Liabilities mala fide possessor must account for all profits of the b. f. extant and consumed; the bona fide possessor, for those only which are extant, because bona fidei respecpossessor fructus percipiendo suos facit. The mala fide possessor is liable for neglect, the bona fide possessor is not so; and he may deduct all necessary expenses and beneficial outlay expended on the estate; but the mala fide possessor can claim compensation for necessary expenses only. If the plaintiff claimed not the universitas bonorum, but some particular part of the estate only, this did not involve the ousting the possessor; and 1 I. IV. 5. 2. 3 D. V. 3. 2 Colq. 2035. 4 D. v. 3. 3; and D. L. 17. 194. 5 D. v. 3. 36. 5; 37. 58. and m. f. possessors tirely. |