[PAULUS libro uicesimo ad edictum. ] §5.3.40.prIllud quoque quod in oratione diui Hadriani est, ut post acceptum iudicium id actori praestetur, quod habiturus esset, si eo tempore quo petit restituta esset hereditas, interdum durum est.
[PAULUS in his twentieth book on the Edict.] That rule also which is found in the speech of the Divine Hadrian, that after the acceptance of the trial that which the plaintiff would have had, if the inheritance had been restored at the time he brought his action, should be paid to him, is sometimes harsh.
quid enim, si post litem contestatam mancipia aut iumenta aut pecora deperierint? damnari debebit secundum uerba orationis, quia potuit petitor restituta hereditate distraxisse ea.
For what if, after the joinder of issue, slaves or beasts of burden or cattle should perish? He will have to be condemned according to the words of the speech, because the claimant, if the inheritance had been restored, could have sold them.
et hoc iustum esse in specialibus petitionibus Proculo placet: Cassius contra sensit.
And Proculus is of the opinion that this is just in specific claims; Cassius was of the opposite opinion.
in praedonis persona Proculus recte existimat, in bonae fidei possessoribus Cassius.
Proculus thinks rightly in the case of a robber, Cassius in the case of bona fide possessors.
nec enim debet possessor aut mortalitatem praestare, aut propter metum huius periculi temere indefensum ius suum relinquere.
For a possessor ought neither to answer for mortality, nor, through fear of this danger, rashly to abandon his own right undefended.
§5.3.40.1Praedo fructus suos non facit, sed augent hereditatem: ideoque eorum quoque fructus praestabit.
A robber does not make the fruits his own, but they increase the inheritance; therefore, he shall also account for the fruits of those fruits.
in bonae fidei autem possessore hi tantum ueniunt in restitutione quasi augmenta hereditatis, per quos locupletior factus est.
But in the case of a bona fide possessor, only those fruits enter into the restoration as quasi-accessions to the inheritance by which he has been made richer.
§5.3.40.2Actiones si quas possessor nanctus est, euicta hereditate restituere debet, ueluti si interdictum unde ui, aut quod precario concessit.
If the possessor has acquired any actions, he must, when the inheritance is evicted, restore them, such as the interdict unde ui, or that which he granted on precarious tenure.
contra quoque si possessor cauerit damni infecti, cauendum est possessori.
Conversely, also, if the possessor has given security against threatened damage, security must be given to the possessor.
§5.3.40.3Ad officium iudicis pertinebunt et noxales actiones, ut, si paratus sit possessor noxae dedere seruum qui damnum dederit in re hereditaria uel furtum fecerit, absoluatur, sicut fit in interdicto quod ui aut clam.
Noxal actions will also belong to the office of the judge, so that, if the possessor is ready to surrender as noxa the slave who has caused damage to the inheritance or committed theft, he may be acquitted, as is done in the interdict quod ui aut clam.