[PROCULUS libro secundo epistularum. ] §41.1.55.prIn laqueum, quem uenandi causa posueras, aper incidit: cum eo haereret, exemptum eum abstuli: num tibi uideor tuum aprum abstulisse? et si tuum putas fuisse, si solutum eum in siluam dimisissem, eo casu tuus esse desisset an maneret? et quam actionem mecum haberes, si desisset tuus esse, num in factum dari oporteret, quaero.
[PROCULUS, from the second book of Epistles.] A wild boar fell into a snare which you had set for the purpose of hunting: while it was caught there, I took it out and carried it away: do I seem to you to have carried away your boar? and if you think it was yours, if I had released it and let it go into the forest, in that case would it have ceased to be yours, or would it remain (yours)? and what action you would have against me, if it had ceased to be yours, whether an action on the facts (actio in factum) ought to be granted, I ask.
respondit: laqueum uideamus ne intersit in publico an in priuato posuerim et, si in priuato posui, utrum in meo an in alieno, et, si in alieno, utrum permissu eius cuius fundus erat an non permissu eius posuerim: praeterea utrum in eo ita haeserit aper, ut expedire se non possit ipse, an diutius luctando expediturus se fuerit.
He replied: As to the snare, let us see whether it makes a difference whether I set it in public or in private land, and, if I set it in private land, whether in my own or in another's, and, if in another's, whether I set it with the permission of him whose land it was, or without his permission; furthermore, whether the boar was caught in it in such a way that it could not free itself, or whether by longer struggling it would have freed itself.
summam tamen hanc puto esse, ut, si in meam potestatem peruenit, meus factus sit.
I think, however, the main point is this: that if it came into my power, it became mine.
sin autem aprum meum ferum in suam naturalem laxitatem dimisisses et eo facto meus esse desisset, actionem mihi in factum dari oportere, ueluti responsum est, cum quidam poculum alterius ex naue eiecisset.
But if you had released my wild boar into its natural freedom, and by that act it had ceased to be mine, an action on the facts (actio in factum) ought to be granted to me, just as was answered in the case where someone had thrown another's cup out of a ship.