[ULPIANUS libro duodecimo ad edictum. ] §4.6.21.pr'Item', ait praetor, 'si quis usu suum fecisset, aut quod non utendo sit amissum consecutus, actioneue qua solutus ob id, quod dies eius exicrit, cum absens non defenderetur. ' quam clausulam praetor inseruit, ut quemadmodum succurrit supra scriptis personis, ne capiantur, ita et aduersus ipsas succurrit, ne capiant.
[ULPIANUS in the twelfth book on the Edict.] "Likewise," says the praetor, "if anyone has made something his own by long-term use, or has acquired what was lost by non-use, or is released from an action by which he was bound on account of its term having expired, when he, being absent, was not defended." The praetor inserted this clause so that, just as he helps the above-mentioned persons lest they be deprived, so also he helps against them lest they deprive.
§4.6.21.1Et erit notandum, quod plus praetor expressit, cum aduersus eos restituit, quam cum ipsis subuenit: nam hic non certas personas enumerauit aduersus quas subuenit, ut supra, sed adiecit clausulam, qua omnes qui absentes non defenduntur complexus est.
And it should be noted that the praetor expressed more when he restored against them than when he helped them: for here he did not enumerate certain persons against whom he helps, as above, but added a clause by which he embraced all who, being absent, are not defended.
§4.6.21.2Haec autem restitutio locum habet, siue per se siue per subiectas sibi personas usu adquisierunt, qui absentes non defendebantur, et ita, si nemo eorum erat defensor.
Now this restitution takes place whether they acquired by long-term use through themselves or through persons subject to them, when they, being absent, were not defended, and this is so if none of them had a defender.
nam si fuit procurator, cum habueris quem conuenias, non debet inquietari.
For if there was a procurator, since you had someone to sue, he ought not to be disturbed.
ceterum si non existebat defensor, aequissimum erat subueniri, eo potius, quod eorum qui non defenduntur, si quidem latitent, praetor ex edicto pollicetur in bona eorum mittere, ut si res exegerit etiam distrahantur, si uero non latitent, licet non defendantur, in bona tantum mitti.
But if no defender existed, it was most equitable that help should be given, especially since the praetor promises in his Edict to put into possession of the property of those who are not defended, if indeed they are in hiding, so that if the matter requires it, they may even be sold, but if they are not in hiding, although they are not defended, only to put into possession.
§4.6.21.3Defendi autem non is uidetur, cuius se defensor ingerit, sed qui requisitus ab actore non est defensioni defuturus, plenaque defensio accipietur, si et iudicium non detrectetur et iudicatum solui satisdetur.
Moreover, a person is not deemed to be defended whose defender forces himself forward, but one who, when requested by the plaintiff, is not going to fail in his defense; and a full defense will be accepted if iudicium is not declined and security is given for the payment of the judgment.