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[001] oil. If goods of this sort are claimed it is sufficient if the defendant restores the
[002] equivalent in weight, number, kind and amount, and thus, since he is not compelled
[003] absolutely to the restitution of the thing sought the action will be in personam, since
[004] he may be discharged by the payment of an equivalent.

What a mixed action is.

[006] 1[Some actions are] mixed, both in rem and in personam. They are mixed because
[007] they have a mixed causa, for the recovery of both, as in the partition of an inheritance
[008] among co-heir parceners, as division among sisters or some other form of division,
[009] according as the thing is to be divided because of the persons concerned or because
[010] of the thing or both.2 And so if a thing is to be divided between neighbours who are
[011] not co-heirs, as3 where the boundaries between adjoining landholders or baronies
[012] are to be settled by reasonable bounds4 or by perambulation. Such actions are also
[013] taken to be mixed since each of the parties is both actor and reus.5 He may be said to
[014] be the actor who first brings the matter into court.6 Thus some actions are solely for
[015] the recovery of a thing, [some] solely for the recovery of a penalty,7 and thus are
[016] single, or for the recovery of both and thus double,8 or both in rem and in personam
[017] and thus mixed,9 in rem by reason of the principal thing, in personam because of
[018] personal payments.10 11<[If] an action may be mixed and have a mixed causa
[019] according as it is recuperatory and penal,12 every action in rem (for it pursues the
[020] thing and a penalty for wrongful detention) and similarly [every action] in personam
[021] may be mixed and have a mixed causa. And every action [will be] criminal and civil,
[022] whether it arises ex maleficio or quasi [or not].> 13There are some [actions] which
[023] 14once were perpetual and continued without any restriction of time. But today15
[024] almost all are confined within fixed periods,16 because of the impossibility of proof,
[025] and therefore are available only for a time, according to the kind of actions. I say
[026] almost all, because of the things which belong to the crown by the jus gentium,
[027] because of the king's privilege, as things which are res nullius and have no owner,17
[028] and things and liberties which pertain to the dignity of the lord king and the crown;18
[029] if he claims these time does not run against him, since he need not prove they are
[030] his and will succeed without proof if the defendant has no warrant or special
[031] liberty,19


1. Br. and Azo, 173-5; Inst. 4.6.20; Azo, Summa Inst. 4.6. no. 33

2. Supra 194, infra iii, 330, 376, iv, 163, 168, 376

3. ‘ut’

4. Glanvill, ix, 14, xii, 16; infra iv, 376

5. Azo, Summa Inst. 4.6, no. 48; 3.27, no. 3

6. D. ‘quaeritur quis actor intellegatur ... sed magis placuit eum videri actorem qui ad iudicium provocasset;’ infra iii, 386, iv, 376

7. Azo, Summa Inst. 4.6, nos. 34-5: ‘quaedam sunt comparatae sola persequendae rei gratia, quaedam poenae persequendae ...’

8. Supra 291, infra 296

9. Azo, Summa Inst. 4.6, no. 10: ‘alie sunt mistae, in rem et in personam’

10. Azo, Summa Inst. 4.6, no. 10: ‘Miste autem sunt, id est, in rem ratione rei principalis et in personam gratia personalium praestationum, ut familiae erciscundae, communi dividundo, finium regundorum ...’

11. Supra i, 385

12. As Azo, no. 35: ‘quo casu mista est actio, quia persequetur rem et poenam.’

13. New paragraph

14-15. Azo, Summa Inst. 4.6, no. 43

16. Supra 157, 288, infra iii, 168

17. Supra 41, 45

18. Supra 58, 167, infra 339

19. Supra 58, 167, 281

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