aliud nomen aliumque statum obligationis transferatur: nec me mouet, praesens homo fuerit nec ne, cum mora, quae eueniebat ex furto, ueluti quadam delegatione finiatur.

18. SCAEVOLA libro quarto quaestionum. Quoniam furtum fit, cum quis indebitos nummos sciens acceperit, uidendum, si procurator suos nummos soluat, an ipsi furtum fiat. et Pomponius epistularum libro octauo ipsum condicere ait ex causa furtiua: sed et me condicere, si ratum habeam quod indebitum datum sit, sed altera condictione altera tollitur.

19. PAULUS libro tertio ad Neratium. Iulianus ex persona filiae, quae res amouit, dandam in patrem condictionem in culium respondit.

pe

20. TRYPHONINUS libro quinto decimo disputationum. Licet fur paratus fuerit excipere condictionem et per me steterit, dum in rebus humanis res fuerat, condicere eam, postea autem perempta est, tamen durare condictionem ueteres uolue

novation into another liability and another cause of obligation. Nor do I care whether the slave was present or not', since the delay (in fulfilling a duty) which was consequent on the theft is ended by a sort of delegation.

18. Scaevola. Since a theft takes place when any one knowingly receives money which is not due, we must consider in the case where an agent pays his own money, whether the theft is committed upon him. And Pomponius in the eighth book of his Epistles says that the agent himself has the condiction on the ground of theft: but that I also have one, if I have ratified the payment which was made without being due. But the one condiction is destroyed by the other.

19. Paulus. In the case of a daughter who has removed anything, Julian says that a condiction must be granted against the father to the extent of the peculium.

20. Tryphoninus. Even though a thief was prepared to defend a condiction, and it was through my fault that the condiction was not brought whilst the thing was in existence, and afterwards it was destroyed, yet the ancients maintained that the condiction could still be brought, because it is considered

1 Sc. in the case of novation: presence was necessary in the case

of oblation. D. 46. 3. 72.

runt, quia uidetur, qui primo inuito domino rem contrectauerit, semper in restituenda ea, quam nec debuit auferre, moram facere.

that any one, who originally misappropriated a thing against the will of its owner, for ever makes default in restoration of what he ought not at all to have removed.

1. PAULUS libro secundo ad Plautium. Si obligatio lege noua introducta sit nec cautum eadem lege, quo genere actionis experiamur, ex lege agendum est.

1. Paulus. If an obligation has been established by some new enactment, and it has not been provided in the same enactment by what form of action we are to sue, the suit must be " on the law'."

1 See Introduction, p. xiv, under head (I).

DE CONDICTIONE TRITICARIA.

D. 13. 3.

1. ULPIANUS libro uicensimo septimo ad edictum. Qui certam pecuniam numeratam petit, illa actione utitur 'si certum petetur': qui autem alias res, per triticariam condictionem petet. et generaliter dicendum est eas res per hanc actionem peti, si quae sint praeter pecuniam numeratam, siue in pondere siue in mensura constent, siue mobiles sint siue soli. quare fundum quoque per hanc actionem petimus et si uectigalis sit

1. Ulpian. He who claims a certain amount of coin employs the action designated " si certum petatur" but he who claims other things will sue by the condictio triticaria. And it must be stated generally, that by this form of action all things are claimed which are not coin, whether they depend on weight or measure, and whether they are moveable or appertain to the soil. Hence we also claim land by this form of action, even if it be ager vectigalis', and a right, if any one has stipu

1 Ager vectigalis is treated of in D. 6. 3, and as that title is exceedingly short, a translation of it is here given: "the lands of cities are in some cases termed vectigales, in others not. They are called vectigales when leased in perpetuity, that is, on terms that so long as the rent is paid for them, they shall not be taken away either from the actual hirers or their successors.

The non vectigales are those which are let out for cultivation, as we usually let out our lands to private individuals.

When persons have hired land for cultivation in perpetuity, although they do not become owners, yet it is held that they have an action in rem against any intruder, and even against the burgesses themselves, provided, that is, that they pay their rent. So also is it if they have hired for a term, and the term of hiring has not expired."

As the tenants are not domini, their right is possession only, and in fact, as Savigny points out, possession," as first recognised, meant a

siue ius stipulatus quis sit, ueluti usum fructum uel seruitutem utrorumque praediorum. (1.) Rem autem suam per hanc actionem nemo petet, nisi ex causis ex quibus potest, ueluti ex causa furtiua uel ui mobili abrepta.

2. IDEM libro octauo decimo ad Sabinum. Sed et ei, qui ui aliquem de fundo deiecit, posse fundum condici Sabinus scribit, et ita et Celsus, sed ita, si dominus sit qui deiectus condicat: ceterum si non sit, possessionem eum condicere Celsus ait.

3. IDEM libro uicensimo septimo ad edictum. In hac actione si quaeratur, res quae petita est cuius temporis aestimationem recipiat, uerius est, quod Seruius ait, condemnationis tempus spectandum: si uero desierit esse in rebus humanis, mortis tempus, sed év tλáte secundum Celsum erit spectandum : non enim debet nouissimum uitae tempus aestimari, ne ad exiguum pretium aestimatio redigatur in seruo forte morti

lated for one, as for instance, an usufruct or a servitude over estates rural or urban. I. But no one can claim his own property by this form of action, except in cases where he is permitted so to do, for example, on the ground of theft or when a moveable has been taken away by force.

2. Ulpian. Against him also who has ejected any one by force from land, Sabinus states, there can be a condiction for the land; and so too Celsus, but only in case the ejected person who sues is owner; if, however, he be not owner, Celsus says, he can bring a condiction for the possession.

3. Ulpian. In this action, if it be asked at what time the article claimed is to be valued, what Servius says is the more correct rule, viz. that the time of the award is to be regarded: but if it has ceased to exist, the time of its destruction, and yet, according to Celsus, this must be considered liberally; for the last moment of existence ought not to be regarded, lest the valuation should be reduced to a trifling sum, as, for in

right analogous to ownership in the ager publicus, where the true ownership was vested in the Roman people. It was allowed to continue with the ager vectigalis, as the later form of the ager publicus. See Sa

vigny, on Poss. Bk. 1. § 13: Niebuhr, Römische Geschichte, vol. 11. pp. 161 -170, 2nd edition. Hence the condictio applicable to recovery of ager vectigalis would be condictio triticaria incerti.