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BOOK SIX VINDICATIO OF PROPERTY 1 ULPIAN, Edict, book 16: After the actions available in respect of a collective whole, we come to the action for claiming individual things. 1. This particular action in rem is used both in regard to all movable things, whether animate or inanimate, and in regard to land. 2. But no claim can be made by this action for free persons subject to us, such as children in our power; they are claimed, as Pomponius writes in his thirtyseventh book of Edict, by prejudicial actions, interdicts, and praetorian inquiry, "unless ," he adds, "the plaintiff specifies his title when vindicating." So, if the plaintiff claims "my son" or one "under my power according to Roman law," Pomponius seems to me to agree that he is suing properly. For he states that having specified one's title, one can bring a vindicatio under Quiritary law. 3. By this action, according to Pomponius in the twenty-fifth book of his Readings, it is not only individual things which may be vindicated; vindicatio may also be brought for a flock. The same must apply to a herd of cattle, a troop of horses, and other animals grouped together. It is sufficient if we own the flock itself, even if particular animals may not belong to us; for what is vindicated is the flock, not the individual beasts. 2 PAUL,Edict, book 21: If two parties each own an equal number of animals, neither may vindicate the whole flock, nor even half of the whole. But if one of the two has the greater number, so that, when animals belonging to others are subtracted, what he vindicates is none the less the flock, then beasts belonging to others are not restored to him. 3 ULPIAN,Edict, book 16: Marcellus, in the fourth book of his Digest, writes: "One who had a flock of three hundred head lost a hundred of them and then bought the same number of other beasts from their owner or from a.possessor in good faith." These animals also, he observes, will be included in a vindicatio of "the flock." Even if the only survivors are those which he has bought as replacements, he can still vindicate "the flock." 1. The items of a ship's tackle should be vindicated individually and the ship's boat should also be vindicated separately. 2. Pomponius writes that if substances of the same nature are so joined and mixed together that they cannot be detached and separated, the vindicatio should not be for the whole but for a part. Suppose that my silver and yours have been reduced into one mass; it will be owned by us in common, and each of us may vindicate a portion based on the weight of our share, even though it be uncertain how much in weight each of our shares actually is. 4 PAUL,Edict, book 21: In that case the action for dividing common property can also be brought. Anyone who fraudulently arranged for the mixing of the silver will be liable to an action for theft and to an action for production. Just as in the action for production, account must be taken of the market price, so in a vindicatio or action for dividing common property, it is the party whose silver was more valuable who receives the greater amount. 202 BOOK SIXIVINDICATIO O F PROPERTY 5 ULPIAN,Edict, book 16: Pomponius also writes: "If corn belonging to two parties has been mixed together without their consent, they each have an action in rem for as much of the heap as appears to be respectively theirs. If, however, the lots were mixed together with their consent, they will be deemed to have become common and there will be an action for dividing common property." 1. Again, he writes: "If mead is made from my honey and your wine, some jurists have held that it also is common property." I consider, however, as he himself suggests, that it belongs rather to the maker, since it does not retain its previous character. But if lead is mixed with silver, as it can be detached, the mixture will not become common, and because separation is possible, there will be no action for dividing common property; an action in rem may, however, be brought. If detachment is not possible, for example, if bronze and gold have been mixed, he states that a vindicatio should be brought for a portion. What was said in...

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