4.1.49 to 4.1.52

(32) On the other hand, in the formula provided for the farmer of the revenue a fiction is inserted, ordering that the debtor be condemned to pay the same amount of money which he would have been compelled to pay in order to release his property, if it had been seized as security for the debt. (33) No formula, however, is based on a fiction in a personal action for recovery; for whether we bring suit for a sum of money, or for any certain article of property as being due, we assert that the very thing itself should be transferred to us, and we do not add any fiction for the purpose of establishing the claim. Therefore, we understand these formulas to be those by which we allege that a definite sum of money, or certain specified property, should be transferred to us, and that the claim is valid by its own force and power. Actions of loan for use, trust, business transacted, as well as innumerable others are of the same nature. (34) We make use of other fictions in certain formulas, for instance, when a party who claims possession of the property of an estate brings an action as a fictitious heir; for as he succeeds to the deceased by the prætorian, and not by the Civil Law, he is not entitled to a direct action, and cannot allege that what belongs to the deceased is his; nor can he demand that what was due to the latter should be paid to him; and therefore, under the fiction that he is the heir, he asserts his claim as follows: "Let So-and-So be judge. If Aulus Agerius" (that is to say, the plaintiff, himself) "should be the heir of Lucius Titius, and it is found that the land in question ought to belong to him by quiritarian right;" or if, in the case of a debt, a similar fiction having been employed by the party, as heir, there is added: "If it should appear that Numerius Negidius should pay to Aulus Agerius ten thousand sesterces." [1] Original manuscript illegible.