Dictionary of Greek and Roman antiquities. Ed. by William Smith. Illustrated by numerous engravings on wood.

350 CONFUSIO. CONGIARIUMT.
CONFESSOIRIA ACTIO. If a mall has a if he had acted bona fide. If the new species
servitus [SEavlTus], and the exercise of his right could not be brought back to its original form, the
is impeded by any person, he can maintain it by specificator in all cases became the owner, if he
an actio in rem, which is a servitutis vindicatio. designed to make the new thing for himself; if he
Accordingly, when a man claims a jus utendi, had acted bona fide he was liable to the owner of
fruendi, eundi, agendi, &c., the actio is called con- the stuff for its value only; if mala fide, he was
fessoria de usufructu, &c. If the owner of a thing liable as a thief. The cases put by Gains (ii. 29)
was interrupted in his exclusive enjoyment of it by are those of a man making wine of another man's
a person claiming or attempting to exercise a servitus grapes, oil of his olives, a ship or bench of his
in it, his claim or ground of action weas negative, timber, and so on. Some jurists (Sabinus and
"jus illi non esse ire, agere," &c., whence the action Cassius) were of opinion that the ownership of
was called negative or negatoria in rein actio. the thing was not changed by such labour being
The confessoria actio and the negativa, which bestowed on it; the opposite school were of opiwas founded on a negative servitus, are discussed nion that the new thing belonged to him who had
under SERVITUS. bestowed his labour on it, but they admitted that
In the negatoria in rein, which must be dis- the original owner had a legal remedy for the
tinguished from the negative actio founded on a value of his property.
negative servitus, the plaintiff claimed restitution of Two things, the property of two persons, might
the thing, as, for instance, when the defendant had become so united as not to be separable without
usurped the usus fructus; or removal of the cause of injury to one or both; in this case the owner of
complaint; also damagesfor injury done, andsecurity the principal thing became the owner of the acces(cautio) against future acts of the like kind. (Gaius, sory. Thus, in the case of a man building on ainiv. 3; Dig. 8. tit. 5; Brissonius, De Formulis; other man's ground, the building belonged to the
Puchta, Cursus, &c. v-ol. ii. pp. 563, 771.) [G. L.] owner of the ground (superficies solo cedit); or in
C'ONFU;SIO properly signifies the mixing of the case of a tree planted, or seed sown on another
liquids, or the fusing of metals into one mass. If man's ground, the rule was the same, when the
things of the same or of different kind were con- tree or seed had taken root. If a mail wrote, even
fused, either by the consent of both owners or by in letters of gold, on another man's parchment or
accident, the compound was the property of both. paper, the whole belonged to the owner of the
If the confusio was caused by one, without the parchment or paper; in the case of a picture
consent of the other, the compound was only joint painted on another man's canvass, the canvass beproperty in case the things were of the same kind: came the property of the owner of the picture.
but if the things were different, so that the com- (Gaius, ii. 73, &c.) If a piece of land was torn
pound was a new thing, this was a case of what, away by a stream (avulsio) from one man's land
by modern writers, is called specification, which and attached to another's land, it became the prothe Roman writers expressed by the term novamo perty of the latter when it was firmly attached to
speciem facere, as if a man made mulsum out of it. This is a different case from that of ALLUVIO.
his own wine and his neighbour's honey. In such But in all these cases the losing party was entitled
a case the person who caused the confusio became to compensation, with some exceptions as to cases
the owner of the compound, but he was bound to of mala fides.
make good to the other the value of his property. Confusio occurs in the case of rights also. If
Commixtio is used by modern writers to signify the right and the duty of an obligatio become
the mixture of solid things which belonged to dif- united in one person, there is a confusio by which
ferent owners; but Commixtio and Confusio are the obligatio is extinguished (Dig. 46. tit. 3. s. 75).
used by the Roman writers to express the union If he who has pledged a thing becomes the heres
of things either solid or fluid (Dig. 41. tit. 1. s. 7. of the pledgee, the rights and duties of two persons
~ 8; 6. tit. 1. s. 3. ~ 2. s. 5.). Still, Commixtio is are united (confunduntur) in one. If a man who
most generally applied to mixture of solids. If has a praedial servitus in another man's land, bethe mixture takes place with mutual consent, the comes the owner of the servient land, the servitus
compound is common property; if by chance, or ceases: servitutes praediorum confunduntur, si
by the act of one, each retains his former property, idem utriusque praedii dominus esse coeperit.
and may separate it from the mass. If separation I (Dig. 8. tit. 6. s. 1.)
is impossible, as if two heaps of corn are mixed, The rules of Roman law on this subject are
each owner is entitled to a part, according to the stated by Brinkman, Instit. Jo'. Roet. ~ 398, &c.;
proportion of his separate property to the whole Mackeldey, Leh/lbuch, &c. ~~ 246, 251, &c. 12th
mass. It is a case of commLxtio when a man's ed.; Inst. 2. tit. 1; Gaius, ii. 70, Rosshirt, Gruzadmoney is paid, without his knowledge and consent, linien, &c. ~ 62. [G. L.]
and the money, when paid, is so mixed with other CONGIA'RIUMI (scil. eas, from co7Zgius), a
money of the receiver that it cannot be recognised; vessel containing a congius. [CONGIUS.]
otherwise, it remains the property of the person to In the early times of the Roman republic, the
whoim it belonged. (Dig. 46. tit. 3. s. 78.) congius was the usual measure of oil or wine which
Specification (which is not a Roman word) took was, on certain occasions, distributed among the
place when a mall made a new thing (nova species) people (Liv. xxv. 2); and thus conigiariz7m, as
either out of his own and his neighbour's material, Qlintilian (vi. 3. ~ 52) says, became a namne for
or out of his neighbour's only. In the former case liberal donations to the people, in general, whether
such man acquired the ownership of the thing. In consisting of oil, wine, corn, or money, or other
the latter case, if the thing could be brought back things (Plin. II. N. xiv. 14, 17, xxxi. 7, 41; Suet.
to the rough material (which is obviously possible Aug. 41, Tib. 20, Net. 7; Plin. Paneg. 25; Tacit.
in very few cases), it still belonlged to the original Ann. xii. 41, xiii. 31; Liv. xxxvii. 57), while
owner, but the specificator had a right to retain donations made to the soldiers were called donative,
the thing till he was paid the value of his labotr,, though they were sometimes also termed comgiarin,