The Digest of Justinian

[THE SAME, in the twenty-first book on the Edict.]

​But if, when I wished to claim the property from Titius, someone else declared that he possessed it and therefore offered himself for the lawsuit, and I prove this very fact during the trial by producing evidence, he must by all means be condemned.

​Moreover, a person must certainly possess both at the time of the joinder of issue and when judgment is given. But if he possessed at the time of the joinder of issue, but when judgment is given he has lost possession without willful intent, the possessor must be absolved. Likewise, if he did not possess at the time of the joinder of issue, but possesses when judgment is given, Proculus’s opinion must be approved, to the effect that he should by all means be condemned; therefore, he will also be condemned under the head of fruits from the time he began to possess.

​If a slave claimed by the action has been made worse by the willful act of the possessor, and has subsequently died from another cause without his fault, no valuation will be made of what had made him worse, because it is of no interest to the plaintiff; but this is so far as the action in rem is concerned; the action under the Lex Aquilia, however, remains.

​But also he who, before the joinder of issue, has by fraud ceased to possess the thing, is held liable in the action in rem; and this can be inferred from the senate decree by which it was provided, as we have said, that past fraud should come into the petition for inheritance; for since past fraud is brought into the petition for inheritance, which itself is also an action in rem, it is not absurd by logical consequence that past fraud should also be brought into a specific action in rem.

​If a father or master possesses through a son or a slave, and the latter is absent without the fault of the father or master at the time of judgment, either time must be granted or security must be given for the restoration of possession.

​If, in respect of the thing claimed, the possessor has incurred expenses before the joinder of issue, account must be taken of them by means of the plea of fraud, if the plaintiff persists in claiming his property without having repaid the expenses. The same is also true if he defended a slave in a noxal action and, having been condemned, paid the money, or built an apartment block by mistake on a plot of land belonging to the plaintiff; unless, however, the plaintiff is prepared to allow him to remove the building. And they said this should also be done in the case of a plot of land donated to a wife, by the judge who takes cognizance of the dowry. But if, while you possessed my slave-boy, you had educated him, Proculus thinks that the same rule should not be observed, because neither ought I to be deprived of my slave, nor can the same remedy be applied which we mentioned in the case of the plot of land;