Accession: fruits and additions

Accession is the increase of property either by natural production or by the union of one thing with another. When this takes place, legal and moral questions arise as to the owner of the increase. There are two leading maxims which settle such questions, Res fructificat domino and Accessorium sequitur principale, ‘The maxim Res fructificat domino seems to follow necessarily from the nature of property and ownership, for he who has the absolute ownership of something has a right to reap the benefit of all that it is, of all its activities, and of all that it produces. And so if the field is mine, I have a right to the grass, wood, or other commodity which it produces. If the tree is mine, I have a right to the fruit; if the mare is mine, I have a right to the foal; in the latter case the maxim Partus sequitur ventrem is also applied.

Jurists and theologians divide fruits into natural, industrial, mixed, and civil. Natural are such as grass, which grows without human labour and care; industrial are the product of industry, as a book or a new invention; mixed are partly natural, partly industrial, as a crop of wheat or potatoes; civil are such artificial fruits as rent from houses and land, interest from money lent. In all these cases the maxim may be applied, Res fructificat domino. In the case of mixed fruits, if the material belongs to the labourer the whole produce will belong to him; if the material, the field for example, belongs to someone else, then the owner of the field and the labourer whose labour aided in the production of the crop have each their right to a portion of the produce. Whether the crop be divided, or a money equivalent be paid to one or the other, is immaterial, With regard to improvements made on land or in houses, the general rule is that, Quidquid solo inaedificatur, plantatur, seritur, solo cedit. However, first of all by custom, and in modern times by statute, an outgoing tenant has a right to compensation for the improvements he has made on his holding, provided that certain conditions have been fulfilled.

When one thing is added to another, the general rule is that what is accessory becomes the property of the owner of what is principal. And so the owner of land has the property in gradual increments made to it by alluvion; an island formed in a river belongs to the owner of the bed. If a river suddenly changes its course, or the sea suddenly retires, the rule does not hold; the ownership remaining as before. If wood belonging to another has been used in a building, the property is transferred to the owner of the building, with the obligation of making compensation for the wood. Similarly a painting on another’s canvas belongs to the painter, but he must pay for the canvas. When a new form has been introduced into the material, as by baking bread, making wine or oil, the product belongs to the workman, but compensation must be made for the material. The ownership is then said to be acquired by specification, When liquids or solids belonging to different owners have been mixed, they should be separated if possible, and each owner will retain his separate property. If this is impossible, the former owners still retain their right to a proportionate part of the whole or to its value.

235. Principle. He who obtains full dominion of some thing has a right to all the fruits arising from the same, according to that saying: A thing fructifies for its owner; and deservedly, since full dominion imports the right of enjoying. But if dominion is divided, so that one has the right of disposing, but another the right of enjoying, this latter will make the fruits his own, as was said where usufruct was treated (n. 126).

236. Species of fruits. Now four kinds of fruits are distinguished: - (a) natural fruits, which arise spontaneously without any or almost any labor, e.g., hay, certain trees, some apples hanging from trees; but there are very few altogether in our regions which grow without any labor; (b) industrial fruits, which are produced only by cultivation, such as certain crops and legumes, wine, etc. - Often fruits are mixed, since they are begotten partly by nature, partly by labor; (c) civil fruits, which do not arise from the thing itself, but come from a contract entered concerning this thing, e.g., the price of leasing, annual revenues, pensions, profit received from loan;² (d) offspring of animals, that is, young born from animals; in this matter the principle must be followed: the offspring follows the womb, or he who legitimately has the mother obtains the right to the young born from her.

² With regard to French civil law, cf. Civil Code, a. 583-584; Planiol, I, n. 1619-1625; Supplement, p. 51*.

237. (A) By adjunction, by which things belonging to different owners are so united that they cannot be separated without detriment; e.g., a gem inserted into a gold ring, an image expressed on another's canvas, a poem written on another's paper. - The principle is that the whole thing belongs to the owner of the principal thing, under this condition, however, that he indemnify the owner of the other thing; for the accessory follows the principal. But what is accessory and what principal must be defined by the common judgment of prudent men, or by custom, or by civil law; e.g., a painting is certainly something principal in relation to the canvas upon which it is painted.

238. (b) By specification, by force of which from another's material a thing of another species is made, e.g., if a statue is made from another's marble, shoes from leather belonging to another, etc. The general rule is that the owner of the material has the right of keeping the thing thus effected, by paying the price of the labor, - unless, however, the work expended far exceeds the price of the material, e.g., if someone from cheap wood carved a most beautiful statue: in which case the artisan can retain the thing, after paying the price of the material.

239. (c) By commixture, which is the conjunction of several things equally principal belonging to different owners, as if two heaps of wheat, two vats of wine, are mixed. - The principle is that the things mixed become the common property of the owners according to the proportional part of each. Hence, if they can be separated, let his own part be returned to each owner; otherwise, either the mixed things must be divided according to the proportional part of each owner; or the whole must be sold, so that the money may be divided according to the proportional part of each.²

² In some regions, such as England and the United States of America, civil law establishes that he who in bad faith has mixed his own goods with those of another loses the right of recovering his own. This law, as penal, does not oblige except after the sentence of a judge; and often the rigor of the law is tempered by judges.

240. This accession can happen either by human industry, namely by building, planting, or sowing; or by nature, namely by alluvion and change of channel.

(A) In the former case, dominion of the soil draws with itself dominion of those things which are built, planted, or sown on it even by others: for all these things are judged to have been made at the expense of the owner. Nevertheless natural equity demands that he who in good faith has built, planted, or sown something on another's land should receive compensation for the labor and material employed, at least insofar as the owner has become richer from these.

Moreover civil law in various regions establishes many things concerning this matter, which oblige in conscience, as being determinative of property.¹

¹ Civil Code, a. 552-555; Planiol, I, n. 1519-1546.

241. (B) In the latter case, namely when accession happens through alluvion, change of channel, or formation of islands, these things generally are admitted in various regions as consonant with natural right: -

(a) Whatever is added little by little to an adjacent bank, - by the recession of the sea, a lake, or a river, - is legitimately acquired by the owner of the land which adjoins the bank;² for it is equitable that the owner of the land retain those things which naturally accrue to this land, all the more because at another time he may lose something of his estate.

² In France special rules exist with regard to alluvions of the sea, lakes, and ponds; Civil Code, a. 557-558; Planiol, I, n. 1517; Supplement, p. 52*.

(b) But if by a sudden rush of waters a large part of some land is torn away from it, the owner of the land does not lose his rights, and can vindicate this torn-away part for himself.

(c) When a river, its course having been changed, leaves its channel, the abandoned channel is legitimately acquired by those whose fields have been submerged by the river: for it is equitable that compensation be assigned to them according to the proportional part of the damage.

242. (d) Islands which are formed in rivers belong to the owner of the nearer bank. - Hence in many regions a distinction is made between navigable rivers and others: islands which are, as it were, created in navigable rivers yield to the Republic, which has the right of dominion over these rivers; - those which are formed in other rivers are legitimately acquired by the owner of the nearer bank; but if they are in the middle of the river, they are divided between the owners of the banks on each side; and the boundaries of the dominion of each are determined by a line which is supposed to be drawn through the middle of the river, or, as they say, through the middle thread of the water.³

³ Civil Code, a. 559-563; Planiol, I, n. 1515-1518.

671. Definition. - Accession ("the right of accession") is that mode of acquiring dominion by which that becomes ours which either is joined to things already ours, movable or immovable, or is produced from our things themselves, movable or immovable, whether by industry or by nature itself.

Division. - Accession is divided in three parts, namely into natural, artificial, and mixed.

1° Accession is natural when one thing is born from another by nature alone, as a lamb from a sheep, or is produced, as milk and wool; or when one thing is joined naturally to another, as land which gradually, not suddenly, accedes to another's bank by water.

2° Artificial, when from the matter of another a new thing is made, as if from another's wool you make a garment, from another's wheat bread, or a chalice from another's silver; or when another's things are joined to one's own, as if you paint another's house; or are confused together, as if you mix your wine with another's wine; or are commingled, as if you commingle your grain with another's grain.

3° Finally accession is mixed when at the same time both by nature and by industry one thing is joined to another, as plants placed in another's land, seeds scattered in another's field, or conversely.

672. Principles. - I. Natural accession happens either by birth or by alluvion.

By birth, or when an animal conceived from a male belonging to another is born to you. He who has the mother has right to all animals born from it. Hence the axiom: "The offspring follows the womb."

Concerning alluvion note these things from Kent.¹ a) "If a fresh water river, running between the lands of separate owners, insensibly gains on one side or the other, the title of each continues to go ad filum medium aquae; but b) if the alteration be sensibly and suddenly made, the ownership remains according to the former bounds, and if the river should then forsake its channel and make an entire new one in the lands of the owner on one side, he will become owner of the whole river, so far as it is enclosed by his land. ... c) If soil be formed out of the sea or a river by slow and imperceptible alluvion and accretion, it belongs to the owner of the adjoining land. d) Islands situated in a river ... belong to the person who owns the land on that side of the river to which they are nearest, though, if they be situated in the middle of the river, they would belong in severalty to the owners on each side, according to the original dividing line or filum aquae, continued on from the place where the waters begin to divide."

673. • II. As to artificial accession, "the English" (as also the American) "law will not allow one man to gain a title to the property of another upon the principle of accession, if he took the other's property wilfully as a trespasser."² But if accession happens in good faith, then:

a) If from the matter of another a new thing is made, which is called specification, the following rule is valid: "If A should make wine out of the grapes, or meal out of the corn of B, or make cloth out of the wool of B, or a bench, or a chest, or a ship out of the timber of B, the most satisfactory decision, according to the Institutes of Justinian, is, that if the species can be reduced to its former rude materials, the owner of the materials is to be deemed the owner of the new species"; yet the price of his labor must be paid to the craftsman, if, as is supposed, he acted in good faith and the work is useful to the owner. "But if the species cannot be so reduced, as neither wine nor flour can be reduced back to grapes or corn, then the manufacturer is deemed to be the owner, and he is only to make satisfaction to the former proprietor for the materials which he had so converted."¹ Thus indeed by English law, and generally also by American law.

Louisiana uses French law, from which the owner of the matter can reclaim the new species by paying the price of the labor. Yet if the price of the industry far exceeds the price of the matter, the craftsman can retain the species made by himself, with the price of the matter paid. If the craftsman acted in bad faith, he will be bound to repair the damages inflicted on the owner of the thing.²

b) If another's things are joined to one's own:

1. If they are joined, and so coalesce that they cannot be separated, which is called adjunction, then the whole composite belongs to him whose thing has the character of principal, while the other thing added has the character of accessory, according namely to the saying: "The accessory follows the principal."³ Yet the owner of the thing which is judged principal must compensate the other for the accessory useful to himself. - Thus a usufructuary who has painted the walls of a house cannot destroy the painting with detriment to the walls. On the other hand, if on another's canvas a painter displays a beautiful image, the canvas becomes his, provided he pays its price: "For it is ridiculous that a painting of Apelles ... should yield in accession to a very cheap tablet."³ Nevertheless it is not easy sometimes to define what ought to be judged principal and what accessory, and some of those things which formerly were held as principal must now be called accessory. Thus, if someone wrote on another's paper or parchment either a poem or any work whatever, by Roman law it yielded to the owner of the thing; yet this would be absurd today, since paper is of cheap price and the work is now esteemed the principal.

2. If another's things are confused with one's own, which is called confusion and has place when liquids or liquefied things of the same or another species so come together that no part can be assigned which does not participate in each, or are commingled, commixture is spoken of and is referred to solids, then by English common law, which is also American, the whole confused or commingled thing yields to him to whom the one confusing or commingling voluntarily inflicted injury, according to the general principle reported above concerning artificial accession from bad faith. Yet the one confusing or commingling probably is not bound to yield the whole before sentence.¹ "But this rule is carried no further than necessity requires; and if the goods can be easily distinguished and separated, as articles of furniture, for instance, then no change of property takes place. So, if the corn or flour mixed together were of equal value, then the injured party takes his given quantity and not the whole. ... But if the articles were of different value or quality, and the original value not to be distinguished, the party injured takes the whole. It is for the party guilty of the fraud to distinguish his own property satisfactorily, or lose it. No court of justice is bound to make the discrimination for him."²

"Where" the goods "of two persons are so intermixed that they can no longer be distinguished, each of them has an equal interest in the subject as tenants in common, if the intermixture was by consent,"³ or happened by chance.⁴ Therefore then it will have to be divided pro rata of the quantity proper to each, and this by the judgment of a judge, unless the parties agree among themselves. - In the other cases, and even in those in which confusion or commixture has been made in bad faith, before sentence the owner of the more excellent matter can preserve the whole heap, with due compensation made. For then the other's part is held as accessory to your thing.⁵ But if the things mixed or confused are inseparable and about equal, the composite belongs to each owner, and, as above, either it or its price after sale is to be divided.

674. • III. The species of mixed accession are building, planting, and sowing. Concerning this, outside the case of bad faith, in which case by English and our law the same is to be resolved as concerning bad faith in artificial accession, the common verses have force:

Whatever is planted, sown, or built upon,
All yields to the soil, if nevertheless it has taken root.

Kent clearly explains these things thus.² "If A builds a house with his own materials upon the land of B, the land, said Pothier, is the principal subject, and the other is but accessory; for the land can subsist without the building, but the building cannot subsist without the land, on which it stands; and, therefore, the owner of the land acquired" (according to Roman law), "by right of accession, the property in the building. It is the same thing if A builds a house on his own land with the materials of another; for the property in the land vests the property in the building by right of accession, and the owner of the land would only be obliged ... to answer to the owner of the materials for the value of them."

"The same distinctions apply to trees or vines planted or seed sowed by A in the land of B. When they take root and grow, they belong to the owner of the soil, and the other can only claim, upon equitable principles, a recompense in damages for the loss of his materials."

Note. - "In most new States very many are found who, occupying lands without title, have cultivated them and erected buildings on them. Concerning men of this kind, who are called squatters, the laws are to be consulted; for the principles just alleged do not have force concerning them. For the most part the laws favor them, lest lands lie uncultivated; wherefore the owner gives a title to them, with a moderate price accepted, or satisfies them for labor and expenses."³

220. Accession is an increase of one's own thing coming from the fact that another thing accedes to it and is joined to it. Hence, in the present matter, it is a special mode of acquiring dominion of a thing acceding to a thing legitimately possessed, from which it is produced or to which it is accidentally united by nature or art. Therefore a twofold accession is distinguished: one by production or fructification is improperly so called, for properly it is the right of using and enjoying, which is governed by the principle: the thing fructifies for the owner (n. 160); the other, properly so called, by accidental union, whether to a movable thing or to an immovable thing, constituted by industry or nature, is governed by the principle: the accessory follows the principal.

221. I. Concerning the right of accession from the production of fruits. - Principle: He who has of some thing either entirely full dominion, that is, of disposing and enjoying, or full useful dominion, that is, of perfectly enjoying, which is called usufruct, has a right to all the fruits of the thing,¹ with the burden, however, of paying expenses which have been made by others for obtaining them.² Thus according to the principle: The thing fructifies for the owner.

¹ C.C., a. 546.

² C.C., a. 548.

The fruits to which he has a right are of three genera:³

³ C.C., a. 547.

a) natural fruits, which are produced by nature alone and arise spontaneously without any or almost any labor, as the fruits of trees, grass, hay, and certain trees; to which, according to the civil code,⁴ the offspring of animals also belong;

⁴ A. 583. - Cf. Italian code, a. 443 sq.; Spanish, a. 353; Austrian, a. 405 sq.

b) industrial fruits, which are produced by the thing itself only through cultivation or by reason of greater labor, as crops, legumes, wine; hence they were called mixed by theologians, because they are generated partly by the nature of the thing, partly by labor;

c) civil fruits, which by a certain fiction of law and because of analogy are so called and are counted among fruits: for they are not born from the thing itself, but are revenues which come from a contract entered into concerning the thing, as the price of leasing, annual revenues, pensions, ordinary gain received from a loan.

Fruits of one's own industry alone must not be confused with industrial fruits; the thing is not the cause of these but only the occasion or condition, namely, they are produced not from the thing itself but only on occasion of the thing, so that another's thing is a mere instrument or quasi-instrument, and itself of itself contributes nothing to their production, as a painting made with another's brush, or business conducted with another's money. These in no way belong to the owner of the thing, but to the producer alone.

222. II. Concerning the right of accession from union to movable things. - This can happen in three different ways: by adjunction, specification, and commixture.

Adjunction is the union of two things belonging to diverse owners and so coalescing into one that they cannot be separated without detriment, for example, a jewel inserted into a gold ring, an image painted on another's canvas, a poem written on another's paper.

Specification is the artificial making from another's matter of some thing distinct in species from the former, for example, a statue made from another's marble, a garment or shoe from cloth or leather belonging to another.

Commixture or confusion is the joining of things equally principal belonging to diverse owners, as if two heaps of wheat, two metals, two casks of wine are mixed, or a thing is made from matter belonging to diverse persons.

Concerning these, the principles and rules are valid:

1. That right of accession is totally subordinated to the principles of natural equity, so that the rules to be handed down are mere examples.

2. In the case of adjunction, the whole thing belongs to the owner of the principal thing,⁵ provided he pays the price of the lesser thing; for the accessory follows the principal. The thing to which another is joined for use, ornament, or complement is held to be principal; if none can be considered as principal or accessory, that is held as principal which excels in price or volume.⁶ If, however, the added thing is much more precious than the principal thing, and was added to it without the owner's knowledge, he will be able to demand that it be torn away from the principal thing, even if it cannot be separated without detriment to this.

⁵ C.C., a. 565.

⁶ A. 566-569. - Cf. Italian code, a. 464 sq.; Spanish, a. 375 sq.; Austrian, a. 419 sq.; German, a. 948.

3. In the case of specification, the owner of the matter can reclaim the thing made, paying the price of the labor; unless, however, the work expended far exceeds the price of the matter: then the craftsman can retain the thing, paying the price of the matter, as if from cheap wood a very beautiful statue had been sculpted.⁷ By Dutch, German, and Spanish law, the owner of the form can preserve the thing, the price of the matter having been paid, unless bad faith intervened or the value of the matter is greater.

⁷ A. 570-571; likewise Italian code, a. 468 sq.

4. In the case of commixture or confusion, the things mixed become the common property of the owners, according to the proportional part of each. Hence, if they can be separated, his own part must be returned to each owner; otherwise either the mixed things must be divided according to the proportion of quantity, quality, and value of each owner, or the whole must be sold so that the money may be divided according to the proportional part of each. If, however, the matter of one greatly surpasses the matter of another in quantity or value, the owner of the more excellent matter can reclaim the whole thing, paying the other the price of the matter which belongs to him.⁸

⁸ A. 572-575. - Cf. Italian code, a. 472; Austrian, a. 414; Spanish, a. 382; German, a. 947.

5. Besides these general rules received in every law, special rules also must be held, if any are handed down by law.

Thus from our Civil Code: a. When the thing remains common, it must be sold by bidding for the common utility of both owners (a. 575).

b. Whenever the owner of the matter from which, without his knowledge, a new species has been made can vindicate his matter, he can at his pleasure reclaim matter equal in every respect, or its price (a. 576).

c. He who has consumed another's matter without the owner's knowledge can be compelled by a judge to repair even the damage which the owner has suffered (a. 577).

223. III. The right of accession from union with immovable things made by the industry of man. - The principle is valid: the dominion of land draws with itself the dominion of those things which are built, planted, and sown on it, or are made on it, even by others, because they are presumed to have been made by the owner and at his expense;⁹ yet it is equitable that he who in good faith has made something on another's land receive compensation for the labor or matter used insofar as the owner has become richer thereby, just as it is also owed that he who on his own land has made something from another's matter compensate the other.

⁹ C.C., a. 552-553. - Cf. Italian code, a. 477 sq.; Spanish, a. 358 sq.; Austrian, a. 417 sq.; German, a. 946.

Moreover, in the application of the principles, the special statutes of civil law must be considered. Thus, for example, in our Civil Code:

1. If someone builds on his own land from another's materials, he must pay the price of the matter and can be condemned to repair damages, but the owner of the matter does not have the right of destroying such a building (a. 554).

2. If someone from his own materials builds on another's land, and indeed in bad faith, knowing it to be another's land, he can be compelled to remove the building at his own expenses and to repair damage if any has been brought; but the owner of the land can retain the building, paying the price of the matter and labor, no regard being had to the value perhaps increased (a. 555).

3. But if a possessor in good faith has so acted, he cannot be compelled to remove the building; but there is given to the owner of the land the option of paying either the price of the matter and labor, or at least the increase of value which from that building has accrued to his land (a. 555).

The reason for this last is because one person is not held to bear all damages. He who acted in good faith does not deserve a penalty; since nevertheless perhaps there is damage, it is equitable that both should undergo something of the damage, because the owner of the land ought not bear all.

224. IV. The right of accession from union with immovable things accomplished by the work of nature. - It can happen by alluvion or reliction, or by avulsion or change of river-bed.

Alluvion or reliction is a hidden increase which, by the force of the waters of any river naturally and continuously flowing, gradually accedes to some estate, according as the course of water brings new matter or leaves behind parts previously watered. Avulsion or change of river-bed is had when by a sudden force of waters a great part of some estate is torn away from it, or a river, its course having changed, leaves its bed and chooses a new one for itself. On occasion of these, sometimes there is the formation of a new island. This right varies more than the preceding according to the diverse laws of States;¹⁰ nevertheless, for the most part the following rules are valid:

¹⁰ French Code, a. 556-560; Italian Code, a. 453-461; Spanish Code, a. 366-373; Austrian Code, a. 407-412; German Code, a. 65 sq.

1. What by alluvion or reliction gradually accedes to the adjacent bank by the river's bringing or receding is legitimately acquired by the owner of the adjacent bank, because nature brings it to him.¹¹

¹¹ C.C., a. 556-557.

2. On the contrary, as to alluvions of the sea, lakes, and ponds, there is no right of accession, so that the limits of dominions remain as they were before.¹²

¹² C.C., a. 557-558.

3. What by avulsion and by the sudden force of waters is torn away in notable part from an estate is not acquired by the adjacent estate, but can be claimed by the owner, provided he does it within the time determined by law,¹³ namely, within a year.

¹³ C.C., a. 559.

4. The river-bed which, the bed having changed, has been abandoned by the river is acquired by those whose estates have been taken by the river, as an equitable compensation of damage to be divided among them according to proportional part.¹⁴

¹⁴ C.C., a. 563.

5. Islands formed in small rivers are acquired by the dominion of the nearer bank; or, if situated in the middle, they are divided between the riparian dominions from each side according to the middle line of the river.¹⁵ But those which are formed in a greater river, namely, one apt for navigation or for transporting things, cede to the republic, which has the right of dominion over these rivers, unless there is a contrary title or prescription.¹⁶

¹⁵ C.C., a. 561.

¹⁶ C.C., a. 560.

VI. Accession is that which adds something to your thing. It is twofold. The one is natural, such as are the offspring of a handmaid, of flocks, of plants which are born on one's own land. The other is artificial, or industrial, such as is that which is made by painting, by building, by writing, by weaving in, by grafting, and the like. The lord of the handmaid, of the land, and so forth, is the lord of the fruits.

Besides the natural increase of property due to natural fertility which we have hitherto been considering, property may increase by additions being made to it either by the agency of natural forces or by the will of man. The gradual additions made to land by the action of a river or of the sea, called alluvion in English law, is an instance of an addition being made to property by natural forces. The mixing of liquids belonging to different owners, called confusion, and of solids, called commixture, are examples of additions to property made by the will of man. All these instances, like that of natural fertility, are comprised by jurists under the general name of Accession as a recognized title to property. In these latter instances, however, the law of nature is not so clear and definite. English law agrees with Roman in applying the maxim that what is accessory follows the principal when questions of ownership of the whole mixed property arise. Although the principle is quite in accordance with reason, yet reason does not seem to demand such a solution as peremptorily as it requires that the produce of the natural fertility of property should belong to the owner of that property. In fact, when we descend to particulars the principle is not applied absolutely and universally in Roman or in English law.

Thus, a gradual increase made to land becomes indeed the property of that land’s owner by alluvion, but if the increase was made suddenly the property rights remain as before. So also if a piece of another man’s timber is built into a house, the timber becomes the property of the owner of the house, but by law he must make compensation to the owner of the timber. Commixture is a species of accession where movables belonging to one owner are mixed with similar movables belonging to another. The principles of English law on the question are entirely at one with those of the Roman law. The owners in general retain a right to claim a proportion of the mixture or its value.¹

¹ Encyclopaedia of the Laws of England, s.v. Commixture.

There is a special law with regard to money:

“If another’s coins have been paid without the owner’s knowledge or against his will, they remain the property of him to whom they belonged. If they had been mixed so that they could not be distinguished, it is written in the books of Gaius that they become the property of the person who received them, so that the owner would have an action for theft against the person who had paid them.”²

² L. 78, Dig. De solutionibus.

Lugo applies and explains this law in the following interesting passage : —

If you received stolen money not gratuitously, but in payment of some debt, and by mixing it with a larger sum made it your own, when the owner of the money subsequently appears you are bound to nothing; for you are not bound on account of an unjust taking, since you received it in good faith; nor by reason of the thing received, because the thing received has now been consumed by the mixing and stands just as if you had spent it; nor, finally, are you bound insofar as you have been enriched, since by that occasion you acquired no profit at all, but had what was otherwise owed to you: the law Si alieni, de solutionibus speaks chiefly of this case when it says that the owner of the money has an action only against the thief; because, of course, the person who had received it in payment had not thereby been enriched, and moreover had already acquired ownership of it through the mixing.³

³ De Justitia, vi., n. 171.

This seems to be modern English and American law: —

Where a person [writes Mr. Attenborough] is entrusted with goods or money for a particular purpose and he misapplies the property with which he is entrusted, the proceeds of such misapplication may be claimed by the owner of the goods or money as, e.g., if A delivers money to B to buy a horse for him and B buys a carriage with the money, A is entitled to the carriage. In such a case it makes no difference into what other form different from the original the change may have been made, whether it be into that of promissory notes for the security of the money which was produced by the sale of the goods, or into other merchandise; for the product of, or substitute for, the original things still follows the nature of the thing itself as long as it can be ascertained to be such, and the right only ceases when the means of ascertainment fail, which is the case when the subject is turned into money, and mixed and confounded in a general mass of the same description.⁴

⁴ The Recovery of Stolen Goods, 1906.

Where it is to be observed that both according to Roman and English law the transference of dominion in the money is not ascribed merely to the receiving of it for value, but to the mixing or commixture of it with one’s own moneys. It could be followed up if it remained separate and distinguishable, it cannot be followed up after mixture with one’s own.