[ULPIANUS libro duodecimo ad edictum. ] §4.6.23.prAit praetor: 'inue uinculis esset, secumue agendi potestatem non faceret. '' haec persona merito adiecta est: fieri enim poterat, ut quis in uinculis praesens esset, uel in publica uel in priuata uincula ductus: nam et eum qui in uinculis est, si modo non sit in seruitute, posse usu adquirere constat.
[ULPIANUS in the twelfth book on the Edict.] The praetor says: 'or was in chains, or did not afford the opportunity of bringing an action against him.' This person was properly added; for it could happen that someone was present while in chains, having been led into either public or private chains. For it is established that even one who is in chains, provided he is not in a state of slavery, can acquire by usucapion.
sed et is qui in uinculis est si defendatur, cessat restitutio.
But also, if he who is in chains is defended, restitutio ceases.
§4.6.23.1Is autem, qui apud hostes est, nihil per usum sibi adquirere potest, nec coeptam possessionem poterit implere, dum est apud hostes: hoc amplius nec postliminio reuersus reciperabit per usum dominii adquisitionem.
On the other hand, he who is with the enemy can acquire nothing for himself by usucapion, nor will he be able to complete a possession already begun while he is with the enemy; moreover, not even after returning by postliminium will he recover the acquisition of ownership by usucapion.
§4.6.23.2Item ei, qui per captiuitatem fundi possessionem uel usus fructus quasi possessionem amisit, succurrendum esse Papinianus ait, et fructus quoque medio tempore ab alio ex usu fructu perceptos debere captiuo restitui aequum putat.
Likewise, Papinian says that relief should be granted to one who, through captivity, lost possession of land or the quasi-possession of a usufruct; and he deems it equitable that fruits also gathered by another from the usufruct in the meantime ought to be restored to the captive.
§4.6.23.3Hi plane, qui fuerunt in potestate captiui, usu rem adquirere possunt ex re peculiari: et aequum erit ex hac clausula praesentibus, id est qui non sunt in captiuitate, subueniri, si cum non defenderentur usucaptum quid sit.
Clearly, those who were in the power of the captive can acquire property by usucapion from their peculium; and it will be equitable, based on this clause, to relieve those who are present, that is, who are not in captivity, if anything has been acquired by usucapion while they were not defended.
sed et si dies actionis, quae aduersus captiuum competebat, exierit, succurretur aduersus eum.
But also, if the time for an action which was competent against the captive has expired, relief will be granted against him.
§4.6.23.4Deinde adicit praetor: 'secumue agendi potestatem non faceret', ut si dum hoc faciat, per usum adquisitio impleta uel quid ex supra scriptis contigit, restitutio concedatur: merito, nec enim sufficit semper in possessionem bonorum eius mitti, quia ea interdum species esse potest, ut in bonis latitantis mitti non possit aut non latitet: finge enim, dum aduocationes postulat, diem exisse, uel dum alia mora iudicii contingit.
Then the praetor adds: 'or did not afford the opportunity of bringing an action against him,' so that if, while he does this, acquisition by usucapion is completed or any of the above-mentioned events occurs, restitutio may be granted. This is proper, for it is not always sufficient that possession of his goods be granted, since sometimes such a situation can arise where possession of the goods of a person hiding cannot be granted, or he is not hiding; for imagine that the period expired while he was requesting legal assistance, or while some other delay in the trial occurred.