4.1.53 to 4.1.55

(35) Likewise, the purchaser of the property of a bankrupt estate may proceed under the fiction that he is the heir, and sometimes he can do so in a different way; for in his statement of the claim he may mention the person whose property he purchased and himself in the condemnation; that is to say, that his adversary may be condemned to pay him on this account what belonged to the former or was due to him. This species of proceeding is called Rutilian, because it was devised by the Prætor Publius Rutilius, who is said to have also introduced the sale of bankrupt estates. The kind of action mentioned above, by which the purchaser of the property of an insolvent estate pretends to be the heir, is called Servian. (36) Likewise, there is a pretended usucaption in the action which is styled Publician. This action is granted to a party who claims property which has been delivered to him for some legal reason, and of which he lost possession before obtaining a title to it by usucaption; for because he cannot claim it as his under quiritarian right, the fiction is employed that he has acquired it by usucaption and hence, as it were, to have become its owner, by quiritarian right; for instance, as follows: "Let So-and-So be judge. If the slave whom Aulus Agerius purchased and who was delivered to him remained in his possession for a year, the said slave would then have lawfully belonged to the said Aulus Agerius by quiritarian right, etc." (37) Likewise, Roman citizenship is feigned in the case of an alien, if he either sues or is sued in an action established by our laws; provided it is just that the said action may be extended to aliens. For example, if an alien sues or is sued for theft, or for aiding and abetting theft, the following formula should be employed, "Let So-and-So be judge. If it appears that a gold cup was stolen from Lucius Titius by Dio the son of Hermæus, or with his aid and advice for which he would have been compelled to make restitution for theft if he had been a Roman citizen, then let the said Dio, the son of Hermæus be convicted, etc."