THE CIVIL LAW
INCLUDING
The Twelve Tables, The Institutes of Gaius, The Rules of
Ulpian, The Opinions of Paulus, The Enactments
of Justinian, and The Constitutions of Leo:
Translated from the original Latin, edited, and compared with all accessible systems of jurisprudence ancient and modern.
By S. P. SCOTT, A. M.
Author of "History of the Moorish
Empire in Europe," Translator of
the "Visigothic Code"
IN SEVENTEEN VOLUMES VOL. IV.
CINCINNATI THE CENTRAL TRUST COMPANY
Executor of the Estate Samuel P. Scott, Deceased
PUBLISHERS
CONTENTS OF VOLUME IV.
THE DIGEST OR PANDECTS.
(Continued)
BOOK IX.
TITLE III. PAGE
CONCERNING THOSE WHO POUR ANYTHING OUT OK THROW ANYTHING DOWN....................................................... 3
TITLE IV. CONCERNING NOXAL ACTIONS...................................... 7
BOOK X.
TITLE I. CONCERNING THE ESTABLISHMENT OF BOUNDARIES................... 21
TITLE II. CONCERNING THE ACTION FOR THE PARTITION OF AN ESTATE.......... 24
TITLE III.
CONCERNING ACTIONS FOR THE PARTITION OF PROPERTY OWNED IN COMMON ..................................................... 47
TITLE IV. CONCERNING THE ACTION FOR PRODUCTION .......................... 58
BOOK XI.
TITLE I.
CONCERNING INTERROGATORIES WHICH SHOULD BE MADE IN COURT, AND ACTIONS BASED ON INTERROGATORIES ........................... 68
TITLE II. CONCERNING CERTAIN MATTERS WHICH COME BEFORE THE SAME JUDGE. 75
TITLE III. PAGE CONCERNING THE CORRUPTION OF A SLAVE .......................... 75
TITLE IV. CONCERNING FUGITIVE SLAVES ..................................... 80
TITLE V. CONCERNING GAMBLERS ........................................... 82
TITLE VI.
WHERE A SURVEYOR MAKES A FALSE REPORT WITH REFERENCE TO MEASUREMENTS .............................................. 84
TITLE VII.
CONCERNING RELIGIOUS PLACES, THE EXPENSES OF FUNERALS, AND THE RIGHT TO CONDUCT THE SAME................................. 86
TITLE VIII.
CONCERNING THE TRANSPORT OF A DEAD BODY, AND THE CONSTRUCTION OF A SEPULCHRE ............................................. 99
THIRD PART. BOOK XII.
TITLE I.
CONCERNING THINGS WHICH ARE CREDITED WHERE A CERTAIN DEMAND IS MADE, AND CONCERNING SUIT FOR RECOVERY ................. 101
TITLE II.
CONCERNING THE TAKING OF AN OATH, WHETHER VOLUNTARY, COMPULSORY, OR JUDICIAL ............................................ 113
TITLE III. CONCERNING AN OATH MADE IN COURT............................. 127
TITLE IV.
CONCERNING A SUIT FOR THE RECOVERY OF PROPERTY GIVEN FOR A CONSIDERATION WHICH DOES NOT TAKE PLACE..................... 130
TITLE V.
CONCERNING THE ACTION FOR RECOVERY WHERE THE CONSIDERATION IS IMMORAL OR UNJUST ......................................... 137
TITLE VI.
CONCERNING AN ACTION FOR THE RECOVERY OF MONEY WHICH IS NOT DUE ........................................................ 139
TITLE VII. CONCERNING AN ACTION FOR RECOVERY WITHOUT GROUND............ 158
BOOK XIII.
TITLE I. PAGE CONCERNING THE ACTION FOR THE RECOVERY OF STOLEN PROPERTY..... 160
TITLE II. CONCERNING SUITS FOR RECOVERY UNDER THE LAW.................. 164
TITLE III. CONCERNING THE TRITICARIAN ACTION ............................. 165
TITLE IV. CONCERNING PROPERTY WHICH MUST BE DELIVERED AT A CERTAIN PLACE. 166
TITLE V. CONCERNING THE ACTION FOR MONEY PROMISED..................... 170
TITLE VI. CONCERNING THE ACTION ON LOAN FOR USE AND THE COUNTER ACTION .. 177
TITLE VII. CONCERNING THE ACTION ON PLEDGE AND THE COUNTER ACTION....... 187
BOOK XIV.
TITLE I. CONCERNING THE ACTION AGAINST THE OWNER OF A SHIP............ 200
TITLE II. CONCERNING THE RHODIAN LAW OF JETTISON ....................... 207
TITLE III. CONCERNING THE INSTITORIAN ACTION ............................. 212
TITLE IV. CONCERNING THE TRIBUTORIAN ACTION ............................ 219
TITLE V.
CONCERNING TRANSACTIONS SAID TO HAVE TAKEN PLACE WITH A PERSON UNDER THE CONTROL OF ANOTHER......................... 225
TITLE VI. CONCERNING THE MACEDONIAN DECREE OF THE SENATE .............. 228
BOOK XV.
TITLE I. CONCERNING THE ACTION ON THE PECULIUM........................ 235
TITLE II. PAGE WHEN THE ACTION ON THE PECULIUM IS LIMITED TO A YEAR......... 258
TITLE III.
CONCERNING THE ACTION BASED ON THE ADVANTAGE DERIVED BY A FATHER OR A MASTER WITH REFERENCE TO HIS PROPERTY........ 260
TITLE IV.
CONCERNING THE ACTION BASED ON THE AUTHORIZATION OF THE FATHER OR THE MASTER.............................................. 270
BOOK XVI.
TITLE I. ON THE VELLEIAN DECREE OF THE SENATE ......................... 272
TITLE II. CONCERNING SET-OFF ............................................. 284
TITLE III. CONCERNING THE DIRECT AND CONTRARY ACTIONS ON DEPOSIT........ 288
BOOK XVII.
TITLE I. CONCERNING THE ACTION ON MANDATE AND THE COUNTER ACTION..... 30,3
TITLE II. CONCERNING THE ACTION ON PARTNERSHIP ......................... 333
THE DIGEST OR PANDECTS.
(Continued)
THE DIGEST OR PANDECTS.
(Continued) BOOK IX.
TITLE III.
CONCERNING THOSE WHO POUR ANYTHING OUT OR THROW ANYTHING DOWN.
1. Ulpianus, On the Edict, Book XXIII.
The prætor says with reference to those who throw down or pour out anything: Where anything is thrown down or poured out from anywhere upon a place where persons are in the habit of passing or standing, I will grant an action against the party who lives there for twofold the amount of damage occasioned or done. If it is alleged that a freeman has been killed by a blow from anything that fell, I will grant an action for fifty aurei. If the party is living, and it is said that he is injured, I will grant an action for an amount which would seem to be just to the judge that the party against whom suit is brought should be directed to pay. If it is alleged that a slave committed the act without the knowledge of his master, I will add to the petition in the case the words, "Or surrender the slave by way of reparation".
(1) No one will deny that this Edict of the Prætor is of the greatest advantage, as it is for the public welfare that persons should come and go over the roads without fear or danger.
(2) It makes, however, very little difference whether the place is public or private, so long as persons ordinarily pass there; because the Prætor had in view persons who were going their way, and particular attention was not paid to highways; for those places through which people ordinarily pass should have the same security. If, however, there was a time when persons did not ordinarily pass that way, and anything is then thrown down or poured out while the place was enclosed, but only after that it began to be used for travel; the party will not be liable under this Edict.
(3) Where something falls down while being hung up, the better opinion is that it should be held to have been thrown down; hence, where something is poured out of a vessel which is suspended, even without the agency of anyone, it must be said that the Edict is applicable.
(4) This action in factum is granted against the party who lodged in the house at the time when something was thrown down or poured out, and not against the owner of the house, because the blame attaches to the former. Mention of negligence or that the defendant
denies the fact is not made, in order to authorize an action for double damages, although both of these matters are stated to afford good ground for an action for wrongful damage.
(5) Where a freeman is killed, the assessment of damages is not made for double the amount, because in the case of a freeman no valuation of his person is possible, but the judgment will be for the sum of fifty aurei.
(6) There words "If he is living and it is said that he is injured," have no reference to the damage which has been committed against the property of a freeman; as, for instance, if his clothing or anything else should be torn or spoiled, but only to those injuries inflicted upon his body.
(7) Where the son of a family has rented an upper chamber and something is thrown down or poured out from it, an action De peculio is not granted against his father, because no claim arising from contract exists, and therefore the action must be brought against the son himself.
(8) Where a slave occupies the house, will a noxal action be granted, since one does not lie on the ground of business transacted: or can one De peculio be brought because no claim can be made on account of an offence of the slave? We cannot properly say that the damage was committed by the slave, since the latter committed no injury. I think, however, that the slave should not be unpunished, but that he should be corrected under the extraordinary authority of the judge.
(9) We say that a party occupies a house whether he resides in his own or one which is leased to him, or which he obtains gratuitously. It is evident that a guest will not be liable, because he does not live there, but is only entertained, but the party is liable who entertains him; and there is as much difference between him who lives in a house and a guest, as there is between one who has a domicile and the traveller who has none.
(10) Where several persons occupy the same room and something is thrown down from it, this action will be granted against any one of them;
2. Gaius, On the Provincial Edict, Book VI.
(Since it is absolutely impossible to know which of them threw it down or poured it out) :
3. Ulpianus, On the Edict, Book XXIII.
And suit can be brought for the entire amount, but where it is brought against one of the parties the others will be discharged:
4. Paulus, On the Edict, Book XIX.
If the money has not been received on joinder of issue, the others will be compelled by a partnership or by an equitable action to pay their shares to the party who has made the settlement.1
1 This rule of contribution is still in force in both England and America, for where one party alone pays the entire sum for which several are jointly liable, he can recover from the others the amounts of their respective shares. — ED.
5. Ulpianus, On the Edict, Book XXIII.
Where several persons occupy an apartment divided up among themselves, an action will be granted against him alone who occupied that part from which the pouring out was done.
(1) Where anyone gives gratuitous lodgings to his freedman and his clients or to those of his wife, Trebatius says that he is liable on their account; and this is correct. The rule is the same where a man distributes small lodgings among his friends, for if anyone rents lodgings and he himself occupies the greater portion of the same, he alone will be liable; but if he rents lodgings and retains for himself only a small part, leasing the remainder to several persons, they will all be liable as occupying the lodging from which the throwing down or pouring out took place.
(2) Sometimes, however, when no disadvantage results to the plaintiff, the Prætor, influenced by equitable motives, ought rather to grant an action against the party from whose bedroom or entry the object was thrown down, even though several persons occupy the same lodging; but if anything should be thrown down from the middle of the apartment, the better opinion is that all are liable.
(3) Where the keeper of a warehouse throws down or pours out anything, or some one who has leased a storeroom, or has rented the place merely for the performance of some labor or for purposes of giving instruction does so, an action in factum will lie; even if one of the workmen or scholars threw it down or poured it out.
(4) Where, however, a party has judgment rendered against him under the Lex Aquilia (because his guest, or anyone else, threw something down from the apartment) it is reasonable, as Labeo says that an action in factum should be granted against the party who did the throwing, and this is true. It is evident, if he had leased the room to the party who threw it down, that he will also be entitled to an action on the ground of contract.
(5) This action which can be brought for things which are poured out and thrown down is a perpetual one, and is available by an heir but is not granted against an heir; but the one which will lie where a freeman is said to have been killed, can only be brought within a year, and is not granted against an heir nor in favor of an heir or similar persons, for it is a penal and a popular action, and we must always remember that where several persons desire to bring a suit of this kind it should preferably be granted to someone who has an interest in it, or was allied to the deceased either by marriage or by blood.
Where, however, injury was inflicted upon a freeman he will have a perpetual right of action; but if anyone else desires to institute proceedings, the right will not extend beyond a year; nor are heirs entitled to it as an hereditary privilege; since, where any bodily injury is inflicted upon the freeman, no claim can be transmitted by hereditary right to his successors, as no pecuniary loss is involved, for the action is based on justice and equity.
(6) The Prætor says, "No one shall have anything deposited upon a projecting roof above a place which is ordinarily used as a pas-
sage-way or where people are accustomed to stand; if it can injure anyone by its fall. I will grant an action in factum for ten solidi against any person who violates this law; and if a slave is said to have done this without the knowledge of his master, I will order this amount to be paid, or the said slave to be surrendered by way of reparation."
(7) This provision is a part of the Edict previously referred to; for it was only consistent that the Prætor should provide for this case as well, so that if anything should be placed on any part of the house which would be dangerous, it might not cause any injury.
(8) The Prætor says, "No one," "on a projecting roof." These words "No one" have reference to all persons, whether they occupy the house as lodgers or as owners and whether they live there or not, so long as they have anything exposed in these places.
(9) "Who have anything deposited above a spot which is ordinarily used as a passage-way or where people are accustomed to stand." We must understand the term "deposited" to be applicable to a lodging or apartment, or to a ware-house or any other building.
(10) A person may properly be held to have something "deposited," even if he did not place it himself but allowed this to be done by someone else, and therefore if a slave should place it, and the owner allow it to remain in that position, he will be held liable not to a noxal action, but on his own account.
(11) The Prætor says, "If it can injure anyone by its fall." It is manifest from these words that the prætor only provides against injury being done, not by everything which may be placed in such a position, but by whatever is placed so that it may possibly cause injury, for we do not wait until the injury is done, but the Edict is applicable if injury can result at all; and the party who kept the object in its position is punished whether it caused any damage by being placed there or not.
(12) Where the object that was placed falls down and causes damage, an action will lie against the party who put it there, but not against the occupant of the house, as this action is not sufficient, because the party who placed the object cannot certainly be held to have kept it in its position, unless he was either the owner or a resident of the house. For when an artist had a shield or a picture on exhibition in a booth, and it fell down and injured a passer-by, Servius was of the opinion that an action corresponding to this one should be granted; for he said that the latter evidently could not be brought, since the picture had neither been placed on the eaves nor on the projecting roof.
He stated that the same rule should be observed where a jar which was suspended in a net had fallen down and caused damage; for the reason that both a legal and an equitable action was wanting.
(13) This action is open to everyone, and lies in favor of an heir and his successors, but it does not lie against heirs, because it is a penal one.
6. Paulus, On the Edict, Book XIX.
This Edict is not limited to cities and villages, but also has reference to all roads along which persons ordinarily pass.
(1) Labeo says that this Edict only applies where an object is thrown down in the daytime, and not at night; still, in certain places
people also pass at night.
(2) A person who occupies the premises is also responsible for the
negligence of his family.
(3) Where anything is thrown out of a ship, an equitable action will be granted against the party in charge of the ship.
7. Gaius, On the Provincial Edict, Book VI.
Where the body of a freeman has been injured by something which has been thrown down or poured out, the judge must take into consideration the fees paid to a physician, and the other expenses incurred by the cure of the individual, as well as the value of any occupation which the party lost, or is liable to lose on account of having been disabled; but no estimate will be made of scars or of any other disfigurement, because the body of a freeman does not admit of appraisement.
TITLE IV. CONCERNING NOXAL ACTIONS.
1. Gaius, On the Provincial Edict, Book II.
Those actions are called noxal which are brought against us, not with reference to any contract, but as the result of some injury or delinquency committed by slaves; and the force and effect of such actions is that, if judgment is rendered against us, we can avoid the payment of damages by the surrender of the body of him who committed the offence.
2. Ulpianus, On the Edict, Book XVIII.
Where a slave kills anyone with the knowledge of his owner, he renders the latter liable for the full amount of damages, for it is held that the owner himself committed the homicide; but where this was done without the owner's knowledge, a noxal action will lie, as the owner should not be held liable, on account of the offence of the slave, for any more than to surrender him by way of reparation.
(1) Where he did nothing to prevent the crime, whether he remains the owner or ceases to be such, he will be liable to this action; for it is sufficient if he was the owner at the time when he did not prevent the act; and to such an extent is this the case, that Celsus thinks if the slave should be alienated in whole or in part or manumitted, the damage does not follow the person, for the slave did not commit any offence, as he obeyed his owner's orders. And this may be truly said, if the latter did order him, but if he only did not prevent him, how can we excuse the act of the slave? Celsus, however, makes a distinction between the Lex Aquilia and the Law of the Twelve Tables, for, under the ancient law, if a slave committed a theft or caused any other damage with the knowledge of his owner, a noxal action would lie on account of the slave, and the owner would not be directly liable; but
he says that under the Lex Aquilia the owner would be directly liable, and not liable on account of the slave. He then states the principle of each of the two laws; the intention of that of the Twelve Tables being that, in an instance of this kind, slaves should not obey their masters, but in the case of the Lex Aquilia the law excused a slave who obeyed his master, as he would have been put to death if he had not done so. But if we consider as established what Julianus states in the Eighty-sixth Book, that, "Where a slave commits a theft or causes some injury," this has also reference to more recent laws; it may be said that a noxal action can be granted against the owner on account of his slave; so that because an Aquilian action is granted against the owner this does not excuse the slave, but is a burden to the owner. We approve of the opinion of Julianus, which is reasonable, and is supported by Marcellus as is stated by Julianus.
3. The Same, On the Edict, Book III.
In all noxal actions where the knowledge of the owner is required, this must be understood to mean that the owner could have been able to prevent the wrong but did not do so; for it is one thing to cause a slave to commit an offence, and another to suffer him to do so.
4. Paulus, On the Edict, Book III.
With reference to the offences of slaves what are we to understand by the "Knowledge of the owner"? Does it mean that the act was done by his advice, or that he merely saw it done, although he could not prevent it? For suppose that a slave who was taking measures to obtain his freedom commits the act, with the knowledge of his owner, or pays no attention to his owner; or suppose that the slave is on the opposite side of a river and commits an injury while his master sees him, but does it contrary to his will? It is better, however, to say that we must understand the term "knowledge" to signify that a party is able to prevent the deed, and this must be understood through the entire Edict so far as the term "knowledge" is concerned.
(1) Where a slave belonging to a stranger commits an illegal act with my knowledge, and I purchase him; a noxal action will be granted against me, because it cannot be held that he acted with the knowledge of his owner as at that time I was not his owner.
(2) Where an owner is liable on account of his knowledge, it should be considered whether an action should be granted also with reference to the slave; unless the Prætor intended that a single penalty only should be exacted from the owner. Therefore should the malice of the slave be unpunished? This would be unjust, for indeed the owner is liable in both ways, still when one penalty, that is, whichever one the plaintiff selects, is exacted, the other cannot be collected.
(3) If the surrender of the slave by way of reparation is not mentioned, and proceedings are brought against the owner on account of his being aware of the offence, when, as a matter of fact, he was not aware of it, and the case is dismissed and the trial terminated; the plaintiff will be barred by an exception on the ground of res judicata,
if he attempts to proceed further in order to obtain the surrender of the slave; for the reason that the matter was previously brought to an issue in the former trial and is now at an end. But, while the first trial is proceeding, the plaintiff has the right to change his mind, if he is attempting to prove the knowledge of the owner, and have recourse to a noxal action.
On the other hand also, if he has proceeded with the noxal action against the party who had knowledge, no other action will be granted him against the owner if he left out the surrender of the slave by way of reparation; but if, during the trial, he still wishes to prove the knowledge of the owner, he cannot be prevented from doing so.
5. Ulpianus, On the Edict, Book V.
Where a slave belonging to several persons commits an offence of which they are all ignorant, a noxal action will be granted against any one of them. But if they were all aware of it, any one of them will be liable without consideration of the surrender of the slave by way of reparation, just as if they had all committed the offence; nor will one of them be liberated if the other should be sued. Still, where one of the owners knew and the other was ignorant of the fact, the one who knew will be sued without the surrender of the slave being considered, and the one who did not know will be sued with the right to surrender him.
(1) The difference between these two proceedings is not merely that the owner who knows is liable for the entire amount, but also that if he who knows should sell the slave or manumit him, and the slave should die, the said owner will be liable; but if the owner himself should die, his heir will not be liable.
6. The Same, On the Edict, Book XVIII.
But the slave himself, if manumitted, will also be liable.
7. The Same, On the Edict, Book III.
A noxal action, however, is not granted unless the slave is under my control, and if he is, although he was not under my control at the time he committed the offence, I will be liable, and my heir will be liable, if the offending slave was living.
(1) Pomponius says that if a purchaser of the slave is sued in a noxal action, the vendor who had knowledge of the act can no longer be sued.
8. The Same, On the Edict, Book XXXVII.
Where a slave owned in common commits a theft, any one of his masters is liable to a noxal action for the entire amount, and this is the rule at the present time. But the party against whom suit is brought cannot avoid payment of the damages unless he surrenders the slave entirely; for if he should be ready to surrender only a share in him, this will not be tolerated. It is evident that if, on account of this, the other owners are not prepared to surrender the slave, he should then be required to pay the entire amount, and he can institute pro-
ceedings against the other owner in partition, or for a division of the interest in the slave. He can, however, before issue is joined in the noxal action, obtain immunity by surrendering his share in the slave so that it will not be necessary for him to make a defence; although someone may state that it might happen where a share in said slave is transferred to the party he loses his right of action; for when he becomes the owner of a share he cannot institute proceedings against a joint-owner by means of a noxal action; and perhaps he could not bring an action in partition on account of an offence which was committed before the joint-ownership began, and if he cannot do this he will evidently suffer injury. It, however, seems to me best to hold that an action for the division of common property will lie in his favor.
9. Paulus, On the Edict, Book XXXIX.
Where a number of slaves held in common, or one alone commits a theft, with the knowledge of one of his owners the latter will be liable in the name of both, and if suit is brought against him this will release the others from liability; nor can he obtain anything from his joint-owner, as he deserved the penalty on account of his own act. But where one who was ignorant of the commission of the offence pays double damages, he can recover simple damages from his joint-owner.
10. The Same, On the Edict, Book XXII.
Moreover, anyone can bring suit against his joint-owner on the ground that he has depreciated the value of the slave; just as he could against anyone else who depreciated the value of property owned in common. If, however, he held nothing in common after the surrender of the slave, he can bring an action on partnership, or if they were not partners he can bring an action in factum.
11. Ulpianus, On the Edict, Book VII.
The bona fide possessor of a slave will be liable to an action for theft on account of the slave, but the owner will not be liable. He cannot, however, by surrendering the slave make him the property of the plaintiff, and if the owner should bring suit to recover the slave, he will be barred by an exception on the ground of fraud, for the other party can be made secure by application to the court.
12. Paulus, On the Edict, Book VI.
Where a bona fide possessor dismisses a slave who was in his possession under these circumstances, in order to avoid proceedings being taken against him in a noxal action, he will be liable to the action which is granted against parties who have a slave in their power or commit fraud in order to avoid having him under their control, because in this instance they are held to be still in possession.
13. Gaius, On the Provincial Edict, Book XIII.
A noxal action is granted not only against a possessor in good faith, but also against those who have possession in bad faith; for it seems absurd that parties who are bona fide possessors should be compelled to defend an action, and that depredators should be secure.
14. Ulpianus, On the Edict, Book XVIII.
Where anyone is sued by several persons on account of an offence committed by his slave, or by one person on account of several offences, then it will not be necessary for him to tender the amount of damages assessed to those to whom he cannot surrender the slave, since he cannot surrender him to all of them. What then is the rule if he is sued by several parties? If, indeed, one of them has anticipated the others, is his position better, and shall the slave be surrendered to him alone? Or shall he be surrendered to all of them, or must the defendant furnish security that he will defend his adversary against the other parties?
It is the better opinion that the position of the party who has anticipated the others is preferable. Therefore the slave should be surrendered, not to the plaintiff who first instituted proceedings, but to the one who first obtained judgment; and hence an action to enforce the judgment will be refused to a party who gains his case subsequently.
(1) If a slave is entitled to his freedom conditionally, and the condition is fulfilled before the surrender; or if he should obtain his freedom under the terms of a trust, or a condition is complied with in accordance with which the ownership of the slave was bequeathed as a legacy and transferred, the defendant must be discharged by an order of court; and it is part of the duty of the judge to provide that the party to whom he is surrendered shall give security against the recovery of the slave by eviction on account of an act of the defendant.
15. Gaius, On the Provincial Edict, Book VI.
The Prætor should order the action to be transferred so as to be conducted against the said former slave, but if, at the time of the trial, the freedom of the slave is still in suspense, Sabinus and Cassius are of the opinion that the heir is released from liability by giving up the slave, since he has thereby assigned all of his own rights; and this is true.
16. Julianus, Digest, Book XXII.
If the heir, through malicious fraud, should relinquish his authority over said slave, and by reason of this should join issue in an action not permitting the noxal surrender of the slave, judgment should be rendered against him, just as if the slave was dead; even if the condition on which the slave was entitled to his freedom should have been fulfilled.
17. Paulus, On the Edict, Book XXII.
Where a slave who belongs to two owners commits an offence with the knowledge of one of them but without that of the other, if suit is brought against the one who is ignorant of the fact and he surrenders the slave by way of reparation, it is unjust that by the surrender of a worthless slave the other owner should be free from liability; hence suit can be brought against the latter also, and if in the attempt to collect damages anything more is obtained, the plaintiff will be entitled
to it after calculation of the value of the slave surrendered has been made.
The joint-owners, however, should divide their claims in an action for the division of common property in such a way that if the one who had knowledge of the act should make payment, he will not be entitled to a portion of all of it, but to a portion of the amount that the slave was worth; and if the other paid anything, he will be entitled to credit for his share. It is not just that the owner who ordered the slave to commit the offence should obtain anything from his fellow-owner, since the loss that he sustains is the result of his own misconduct.
(1) Where several persons wish to bring a noxal action against me on account of the same slave, or one party brings suit in several actions with reference to the same slave, he being one in whom you have an usufruct and I the mere ownership, it is part of the duty of the judge, when I surrender the slave by way of reparation, to provide that I transfer to the plaintiff the usufruct in him also; but I, as the mere proprietor, can apply to the prætor to have him compel you to contribute to the estimated damages in proportion to the value of the usufruct, or to assign the usufruct, if this is more expedient. But if I, the mere owner, refuse to defend the action brought with reference to the slave, you should be permitted to defend it, and if, having lost it, you deliver the slave, you will be protected against me.
18. Pomponius, On Sabinus, Book XVIII.
A party who has an usufruct in a slave has for this reason a right of action for theft against the mere owner, just as if he were any other person, but no right of action exists against him although the slave is in his service; and therefore, if judgment is rendered against the owner, he will be discharged from liability by surrendering the slave to the usufructuary.
19. Paulus, On the Edict, Book XXII.
Where a slave of Titius does some damage to property owned by you and me in common, and we institute proceedings against Titius, a noxal action under the Lex Aquilia will lie; and if he loses the suit he will be compelled to surrender the entire slave to us separately. It may be stated, however, as in the case where both the damage and the claim for it are acquired by one person alone, either the money should be tendered to both of us, or the slave be surrendered to both of us at the same time by order of court. Nevertheless, if the slave is surrendered to either of us without division of ownership, and on this account the owner is released from liability to both of us, it is very properly held that he to whom a surrender was made is liable to the other in an action for the division of common property, to compel him to transfer a share of the slave that was surrendered, since this is something which has come into the hands of the joint-owner through property held in common.1
1 There were two kinds of suits in partition at Civil Law, one was called Actio de communi dividendo, the other Actio familiæ erciscundæ. The first of these was employed for the division of property owned in common, including that of part-
(1) Where the mere owner of a slave leases the services of the latter in whom someone else has the usufruct, the words of the Edict indicate that if judgment is rendered against him he will have the choice of surrendering the slave by way of reparation.
(2) Where your slave has charge of a ship, and his underslave, who is also a sailor on said ship, causes some damage, an action should be granted against you, just as if the party in charge was free, and the slave belonged to him; so that you will be ordered by the court to surrender the said slave by way of reparation as part of the peculium of your slave; although if the second slave committed the damage by order of your slave or with his knowledge and sufferance, a noxal action should be brought against you on account of your slave. The result will be the same if your slave should order a sailor to commit the act.
20. Gaius, On the Provincial Edict, Book VII.
Where anyone brings several actions at different times, on account of distinct offences, and he obtains ownership of the slave on account of one of said offences, he will not be entitled to any other action against the party who was formerly the owner, since a noxal action follows the individual; but, if the owner at the time the former case was tried, preferred to pay the damages assessed, he will, nevertheless, be liable to the same plaintiff, or to anyone else, if he brings suit on the ground of some other wrong.
21. Ulpianus, On the Edict, Book XXIII.
Whenever an owner is sued on the ground of damage committed, and does not wish to defend the action, he is in such a condition that he must surrender by way of reparation the slave on whose account he refuses to defend the suit, or, if he does not do so, he is absolutely obliged to make a defence; but judgment will not be rendered against him unless he has the slave in his power, or has managed to relinquish possession of him by fraud.
nership; the second could be brought by one heir against another for the purpose of carrying out the provisions of a will, as well as for the partition of an estate. Both of these were considered as "mixed actions," that is, they, in some respects, corresponded with proceedings in rem as well as in personam, and could not be classed distinctively under either head.
The Actio de communi dividendo was devised to supply the deficiencies of the Actio pro socio, or partnership action, which was not applicable to the division of the property belonging to the firm or association, and, as a rule, had reference merely to the compulsory payment of contributions.
The Actio familiæ erciscundæ was available where a number of heirs were at variance as to how an estate should be divided, and called for its distribution; it being presumed that one of the heirs was, or had been, in possession and had charge of the management of the estate. The proceeding was of great antiquity and is referred to in the Laws of the Twelve Tables (Leges XII Tabululorum V, IV.) It lay only in favor of persons who were entitled to the unrestricted enjoy ment and control of their property. The court was especially required to avoid, as far as possible, rendering a decision which might in any way prejudice the rights of the heirs, either in their relations to one another or to strangers. If the distribution or settlement of several estates was involved, they could all be included in one proceeding. — ED.
(1) Where proceedings are instituted by a noxal action on account of slaves, it is established that they can be defended even though they are absent, but this only shall be done where the said slaves belong to the defendant, for if they belong to another they must be present; and this is also the case where any doubt exists whether they are the property of the defendant or of another party. I think that this ought to be understood to be the rule if it is proved that they are serving the defendant merely as bona fide slaves, even if they are absent.
(2) The Prætor says, "If he in whose power the slave is said to be denies that he has him in his power, I shall either order him to swear that the slave is not in his power, or that he has not fraudulently maneged that he should not be, or I will grant an action without surrender by way of reparation, whichever the plaintiff desires."
(3) We should understand the words "In his power" to mean that the defendant has the opportunity and the power to produce the slave; but if the latter should be a fugitive, or out of the country, he will not be held to be in his power.
(4) If the defendant refuses to make oath, his position is the same as that of a party who will neither defend an absent slave or produce him in court; and persons of this kind should have judgment rendered against them as being contumacious.
(5) Where there is a guardian or a curator, he must swear that the slave is not in the power of his owner; but where there is an agent, it is necessary for the owner himself to be sworn.
(6) Where the plaintiff has exacted an oath and the defendant has taken it, and afterwards the plaintiff desires to bring a noxal action, it should be considered whether an exception on the ground of "an oath taken" should not be granted against the plaintiff? Sabinus is of the opinion that it should not be granted, since the oath was taken with reference to a different matter; that is to say, the party swore that the slave was not in his power at the time, but now, since he is found to be in his power, suit can be brought on account of his act.
Neratius, also, states that after the oath has been required, the plaintiff can proceed omitting the surrender by way of reparation, provided he claims that the defendant began to have the slave in his power only after he was sworn.
22. Paulus, On the Edict, Book XVIII.
Where a slave is deposited with someone or loaned to him, a noxal action can be brought against the owner, for the slave is understood to still serve him, and as far as relates to this Edict, he is in his power; and especially is this the case if he has the means of recovering him.
(1) He who has received a slave in pledge or holds him by sufferance of his owner is not liable in a noxal action, for even though parties may have lawful possession, nevertheless, they have not possession as owners; hence those slaves are understood to be in the power of their owner, if the said owner has the means of recovering them.
(2) What is the meaning of the words, "Has the means of recovering them"? It signifies that he has the money by which to release
them, for he ought not to be compelled to sell his property in order to pay the money and recover the slave.
(3) Where an owner confesses that a slave is in his power he must either produce him in court or defend him, if he is absent; and if he does neither, he will be punished just as if the slave had been present and he had not surrendered him.
(4) Where the owner denies that the slave is in his power, the Prætor permits the plaintiff to choose whether he will decide the matter by means of an oath, or whether judgment shall be rendered without the surrender of the slave; by which means he will succeed if he proves that the slave is in the power of the defendant, or that he has acted fraudulently so that he may not be; but a party who does not prove that the slave is in the power of his adversary loses his case.
23. Gaius, On the Provincial Edict, Book VI.
But if his adversary should afterwards come into possession of the slave, he will be liable on account of the new possession and an exception will be denied him.
24. Paulus, On the Edict, Book XVIII.
It must be considered whether a noxal action can be brought only against the party who fraudulently managed to prevent the slave from being in his power if it should happen through his fraud that a noxal action will not be available; for instance, where he ordered his slave to take the flight; or whether an action cannot, nevertheless, be brought against some other party; which would be the case if the slave were sold or manumitted? The latter is the better opinion, as in this instance the plaintiff has the choice of proceeding against either party. Julianus, however, says that if the manumitted slave is ready to defend his case, an exception should be granted to the person who manumitted him; and this is also the opinion of Labeo.
25. Gaius, On the Provincial Edict, Book VI.
The rule is the same where the new owner of the slave is made defendant in the suit.
26. Paulus, On the Edict, Book XVIII.
The choice of one defendant releases the other; for the Prætor introduced this right to prevent the plaintiff from 6eing thwarted, and not that he might obtain any profit; and therefore he will be barred by an exception if he brings the other suit.
(1) It follows as a result that where several persons fraudulently manage to avoid having the slave in their power, the plaintiff must select which one he would rather sue.
(2) Again, if of several joint-owners, some, through malicious fraud, relinquish possession of their shares; the plaintiff has the choice as to whether he will proceed directly against the party who was in possession, or whether he will bring a prætorian action against him who has ceased to be in possession.
(3) Where a party answers in court that a slave who belongs to another is his, then, if either one should pay, the other will be discharged.
(4) If a slave of whom you have fraudulently relinquished possession dies before this action is brought against you, you will be discharged because this action takes the place of the direct one.
We hold that the case is different where you are in default in joining issue.
(5) An action will not be granted to an heir, or against an heir, on the ground that the deceased stated what was false, nor against the party himself, after the lapse of an indefinite time; for anyone is free to assume the defence of an absent slave in order to avoid the penalty prescribed by this Edict, that is to say, to be sued without the right to surrender the slave by way of reparation. Therefore, if you deny that the slave is in your power, you can afterwards confess that he is, unless joinder of issue has already taken place in the case against you; for then you ought not to be heard; as Labeo says.
Octavenus, however, says that you are entitled to relief even after issue has been joined, if cause is shown, at all events if your age is such that indulgence should be granted you.
(6) Where a slave is taken away during the absence of his master, or even in his presence, and matters are still in such a condition that complete restitution is possible, a defence is permitted on account of the slave that was taken away; for if a request was made for him to be produced in court for the purpose of making a defence, the Prætor ought to grant it.
The same relief should be afforded an usufructuary or one to whom the slave was pledged on account of a debt, where the owner is present and refuses to make a defence, in order that the malice or negligence of one man may not injure others. The same relief must also be afforded where a slave is held in common and one of his owners, who is present, refuses to make a defence. In these instances the plaintiff is also entitled to relief because it is established that the right of action is extinguished by the acquisition of ownership; for when the slave is removed by order of the Prætor, he becomes the property of the party who led him away.
27. Gaius, On the Provincial Edict, Book VI.
Where a noxal action is brought with reference to a slave who is held by way of pledge, or with reference to one in whom another party has the usufruct; we must remember that if either the creditor or the usufructuary is present and is unwilling to undertake the defence, the Proconsul must intervene, and refuse the sale of the pledge or an action to be brought for the usufruct. In this instance it may be said that the pledge is released by operation of law, since that is no pledge upon which the money cannot be collected by suit; but an usufruct remains as a matter of right, even though an action to recover it may be refused, until the time established by law has elapsed, and it is lost by non-user.
(1) From what we have stated with reference to a slave who was held by anyone in pledge, or a slave who is to be free upon a certain condition, or one in whom another party has an usufruct; it is evident that where a defendant states in court that his slave in reality belongs to another; then, even though he is liable to a noxal action, he cannot, nevertheless, be free from liability by operation of law through the surrender of the slave by way of reparation; for as the party is not the owner he cannot transfer the ownership to the plaintiff.
It is, however, certain, that where a slave has been delivered for this reason, and his owner afterwards brings suit to recover him, but does not tender the damages assessed in the case; he can be opposed by an exception on the ground of malicious fraud.
28. Africanus, Questions, Book VI.
Generally speaking, if I bring a noxal action against you on account of the slave of a third party, who is serving you in good faith, and you surrender him to me by way of reparation; and then if, while I am in possession of him, his owner brings suit to recover him, I can bar him with an exception on the ground of malicious fraud, unless he tenders the damages which have been assessed; but if the owner himself should be in possession, I am entitled to the Publician Action, and if the defendant makes use of the exception, "Unless the defendant is his owner," a replication based on malicious fraud can be interposed for my benefit. In accordance with this I can acquire ownership by use, although I am aware that I am in possession of the property of another, and, in fact, if it had been otherwise established, the result would be that a bona fide possessor would be subjected to the greatest injustice; since while, as a matter of law, he would be liable in a noxal action, the necessity is imposed upon him to submit to the payment of the damages assessed in the case. The same principle applies where no defence is made with reference to the slave, and I take him away by order of the Prætor; since, in this instance also, I have a legal ground of possession.
29. Gaius, On the Provincial Edict, Book VI.
Not only can a person who has not the slave in his power refuse to answer in a noxal action, but he is also free to avoid the action even when he has him in his power, if he leaves the person undefended; but in this instance he must transfer his right to the plaintiff, just as if judgment had been rendered against him.
30. The Same, On the Edict of the Urban Prætor, Under the Head of the "Prevention of Threatened Injury."
In noxal actions, the rights of those who are absent in good faith are not lost, but, on their return, power is given them to make a defence in accordance with what is proper and just, whether they are the owners or have some right in the property in dispute, such as creditors and usufructuaries.
31. Paulus, On Plautius, Book VII.
Where the Prætor says, "When a number of slaves commit a theft an action will only be granted to enable the plaintiff to obtain as much as he would have done if a freeman had committed the crime," the question arises whether this has reference to the payment of money as damages, or to the surrender of the slave by way of reparation; as, for instance, where double damages are collected out of the value of the slaves that have been surrendered, whether other actions will be prohibited?
Sabinus and Cassius both think that the defendant should be credited with the value of the slaves surrendered. This Pomponius approves, and it is true; for if a slave is taken away because no defence was offered, the owner must receive credit for what he was worth. Julianus thinks that it is certain that an account must be taken, not only of the double damages, but also of what might be recovered by a personal action; and where theft has been committed by a number of slaves, the time when this was done must be investigated, in order to determine whether they belonged to the same band; for the Edict is not applicable where those slaves who belong to different owners afterwards becomes the property of one alone.
32. Callistratus, Monitory Edict, Book II.
Where the slave is in the power of one who is not his owner, and is said to have committed an offence, if he is not defended he will be taken away; and if his owner is present, he should deliver him up and give security against malicious fraud.
33. Pomponius, On Sabinus, Book XIV.
No one can, against his will, be forced to defend another in a noxal action, but he must be deprived of him whom he refuses to defend, if he is his slave; but where the party who is in the power of another is free, he ought to be permitted to defend himself under all circumstances :
34. Julianus, On Urseius Ferox, Book IV.
For whenever no one will undertake the defence of the son of a family on account of a breach of the law, an action is granted against him,
35. Ulpianus, On Sabinus, Book XLI.
And if judgment is rendered against the son he must comply with it, for he is held by the decision. Moreover, it must be stated that his father also is liable to an action De peculio, after judgment has been pronounced against the son.
36. The Same, On the Edict, Book XXXVII.
Where anyone purchases from a debtor a slave who has been pledged and then stolen by him, the purchaser will be liable on the ground of theft, after he has acquired the ownership of the slave; and
no objection can be made that the slave can be recovered by him, by means of the Servian Action. The rule is the same where a party makes a purchase from a minor under twenty-five years of age, or knowingly for the purpose of defrauding creditors; as, although the latter can be deprived of their ownership, still, in the meantime, suit can be brought against them.
37. Tryphoninus, Disputations, Book XV.
Where a slave belonging to another steals my property and afterwards comes into my hands as owner, the right of action for theft to which I was entitled is extinguished, if it has not yet been made use of; and if I should afterwards dispose of the slave whom I bought before issue was joined, the right of action for theft will not be renewed; but if I purchase him after issue has been joined, the vendor can have judgment rendered against him:
38. Ulpianus, On the Edict, Book XXXVII.
Just as he would if he had sold him to another party, for, indeed, it makes little difference to whom he sells him, whether to his adversary or to someone else; and it will be his own fault if he has to submit to the payment of the damages assessed, since by selling him he deprived himself of the power of surrendering him by way of reparation.
(1) Julianus, however, states in the Twenty-second Book of the Digest, that if I abandon the slave who stole your property, I am released from liability, because he at once ceased to belong to me; otherwise an action for theft could be brought on account of him who has no owner.
(2) Where my slave steals your property and sells it, and you deprive him of the money in his possession which he obtained as part of the price of said property, there will be ground for an action of theft on both sides; for you can bring a noxal action of theft against me on account of the slave, and I can bring one against you on account of the money.
(3) Moreover, where I pay money to the slave of my creditor in order that he may give it to his master, there will also be ground for an action of theft, if the slave appropriates the money he received.
39. Julianus, Digest, Book IX.
Where a slave belonging to several persons commits a theft and all his owners fraudulently manage to avoid having him in their power, the Prætor ought to follow the form of the civil action, and allow the equitable action which he promises in an instance of this kind to be brought against whichever owner the plaintiff may select; and he should not afford the plaintiff any greater advantage than to enable him to bring an action, without the defendant having the right to surrender the slave by way of reparation; since he would have been able to institute proceedings in a noxal action if the slave had been produced in court.
(1) Where anyone acknowledges that a slave is his own who really belongs to another; then, although he is liable to a noxal action, never-
theless, where proper cause is shown, he can be compelled to give security; but where a party is sued on account of his own slave, he should not be burdened with security, as he is not volunteering in the defence of a slave belonging to another.
(2) Where anyone states that the owner of a slave had acted fraudulently to avoid having said slave in his possession, and the owner contends in court that the suit should be defended by someone else who would furnish security; there is ground here for an exception on the ground of malicious fraud.
(3) But if, after issue has been joined with the owner, the slave should appear, and because he was not defended is taken away; the owner will be discharged if he interposes an exception on the ground of malicious fraud.
(4) Where, however, the slave dies before issue is joined, the owner will not be held liable in this action at all.
40. The Same, Digest, Book XXII.
Where a slave is bequeathed as a legacy and steals the property of the future heir before the estate is entered upon; the heir can bring an action of theft against the legatee if he accepts the legacy. But where the same slave appropriates property which belongs to the estate, an action of theft will not lie, because there can be no theft of property of this description; but an action can be brought to compel him to produce the property in court.
41. The Same, On Urseius Ferox, Book II.
Where a slave owned in common causes unlawful damage to one of his owners, an action under the Lex Aquilia will not lie on that account; because if he had caused the damage to a stranger, an action could be brought against the other joint-owner for the entire amount under the Lex Aquilia; just as where a slave owned in common committed theft an action for theft cannot be brought against the other joint-owner, but proceedings in partition must be instituted.
42. Ulpianus, On the Edict, Book XXXVII.
Where a party, on account of whom issue has been joined in a noxal action, claims his freedom, proceedings should be stayed until his condition is determined; hence if he should be declared to be a slave, the noxal action will proceed, but if he is decided to be free it will be held to be of no effect.
(1) Where a party undertakes to defend a noxal action on account of a slave who is dead, and he is ignorant of the fact, he should be discharged from liability, because it has ceased to be true that he should surrender anything on account of said slave.
(2) These actions are not barred by lapse of time, and are available as long as we have the power of surrendering the slave; for they can be brought not only against us but also against our successors, as well as against the successors of the party liable in the first place, not because they succeed to his liability, but on the ground of
ownership. Hence, if a slave has come into the hands of another party, his new owner can be sued in a noxal action on the ground of ownership.
43. Pomponius, Epistles, Book VIII.
Slaves, in cases where liability for reparation follows the individual, should be defended in the place where it is alleged that they committed the offence, and therefore the owner is obliged to produce said slaves in the place where they are said to have committed the violence and he may lose the ownership of all of them if he does not defend them.
THE DIGEST OR PANDECTS. BOOK X.
TITLE I. CONCERNING THE ESTABLISHMENT OF BOUNDARIES.
1. Paulus, On the Edict, Book XXIII.
The action for the establishment of boundaries is a personal one; although it is a proceeding for the recovery of property.
2. Ulpianus, On the Edict, Book XIX.
This action has reference to rustic estates, even though buildings are situated between them; for it does not make much difference whether a party plants trees, or erects a building on the boundary line.
(1) A judge is permitted in the case of establishment of boundaries to decide the controversy as seems to him best where he cannot fix the boundaries; and if the judge, for the purpose of removing a doubt of ancient origin chooses to direct the boundaries to be established in a new direction, he can do so in this way, and order a sum of money to be paid by way of compensation.
3. Gaius, On the Provincial Edict, Book VII.
In any case in which it is necessary that a decision should be made giving the land of one of the parties to the other, the one in whose favor the decision is rendered shall be required to pay to the other a certain sum of money by way of compensation.
4. Paulus, On the Edict, Book XXIII.
Where a controversy exists with reference to a certain piece of real-estate the land can be divided into shares by means of a decree, in accordance with what the judge finds to be the interest of the parties in said land.
(1) In a suit for the establishment of boundaries an account must be taken of the interest of the parties; for example, where anyone obtains some benefit from a tract of land which is ascertained to belong to a neighbor, would it be unjust that payment should be required on that account? Moreover, if a surveyor had been employed by one of the parties, the other who did not employ him would be obliged to pay his share of the compensation.
(2) After issue has been joined in a case, account is taken of the profits, for from that time negligence and malice must be made the subject of investigation, but whatever is collected before issue is joined will not, under any circumstances, be considered, for either the party collected it in good faith, and he should be allowed the benefit of it if he has consumed it; or, if he collected it in bad faith, an action must be brought against him for its recovery.
(3) Where, however, anyone refuses to obey the judge by cutting down a tree, or removing a building erected on the boundary, or on some portion of it, he will be required to make payment.
(4) Where landmarks are alleged to have been thrown down or dug up; the judge who has jurisdiction can hear an application to establish the boundaries also.
(5) Where one tract of land belongs to two persons and another to three; the court can adjudge the tract which is in dispute to one side, even though it includes several owners, since where the boundaries of land are established, this is understood to be done rather for the benefit of an estate than for that of a person; in this instance, however, since the decision was for the benefit of several parties, each one will be entitled to the same share which he has in the estate, and which will be held in common.
(6) Those who have shares in the common estate will not be liable to payment to one another, for no judicial controversy appears to have arisen between them.
(7) If you and I have an estate in common, and I alone own an adjoining tract of land, can legal proceedings be taken by us for the establishment of boundaries? Pomponius states that there cannot, because my joint-owner and myself cannot be adversaries in an. action of this kind, but we are considered to occupy the place of one person. Pomponius also says that even an equitable action cannot be granted, as the party who holds property in his own right can alienate either what he held jointly or severally, and then institute proceedings.
(8) An action can be brought for the establishment of boundaries not only between two estates, but even among three or more, as for instance, where one estate and several others, even as many as three or four, are contiguous.
(9) An action for the establishment of boundaries can be brought where lands are subject to perpetual lease; or between persons who have usufructs in the different tracts; or between an usufructuary and a mere owner of adjoining land; or between parties who have possession on account of real property given by way of pledge.
(10) This action is available where the boundary is between rustic estates; it does not, however, apply in the case of urban estates; for in the latter instance, the parties are not persons who have the same boundary, but they are rather said to be neighbors, and their estates are, for the most part, separated by common walls. Therefore, where buildings are adjoining, even in the country, there is no ground for this action; and, on the other hand, in a city there may be gardens which are contiguous, so that here also an action can be brought for the establishment of boundaries.
(11) Where a river or a highway intervenes, it is not understood to be a boundary; hence no suit can be brought for the establishment of a boundary.
5. The Same, On Sabinus, Book XV.
Because the highway or the river constitutes my boundary, rather than the land of my neighbor.
6. The Same, On the Edict, Book XXIII.
But if a private stream intervenes, an action for the establishment of boundaries can be brought.
7. Modestinus, Pandects, Book X.
Arbiters are appointed to determine the dimensions of land; and he who is stated to have a larger part of the entire tract will be compelled to transfer a certain portion to the others who have smaller ones; and this is stated in a rescript.
8. Ulpianus, Opinions, Book VI.
Where an inundation destroys the boundaries of a field by the overflow of the water, so as to afford an opportunity to any person to seize places over which they have no right; the governor of the province must order that they shall not interfere with the property of others, and that the land of the owner shall be restored to him, and the boundaries be fixed by a surveyor.
(1) It is part of the duty of the magistrate in a case involving the boundaries of land to send surveyors, and by means of them dispose of the question of boundaries in accordance with justice, and by examination with his own eyes, if occasion demands It.
9. Julianus, Digest, Book VIII.
The case for the establishment of boundaries remains for hearing, even though the common owners may have brought an action for partition, or have sold the land.
10. The Same, Digest, Book LI.
An action for partition among joint-owners or heirs, or one for the establishment of boundaries is of such a nature that each individual party has the double right of both plaintiff and defendant in the action.
11. Papinianus, Opinions, Book II.
With reference to inquiries as to boundaries, the ancient memorials, and the authority of the census which had been taken before the suit was brought, must be followed; provided it is proved that no changes have resulted through a number of successions, and by the arbitrary acts of possessors tracts of land have been either added or taken away, and the boundaries subsequently altered.
12. Paulus, Opinions, Book III.
In a question relating to ownership, attention must be paid to those boundaries which a person who was the owner of both tracts designated when he sold one of them; for it is not necessary that the boundaries which formerly separated the two different tracts should be observed, but the descriptions of the adjoining owners must be used to establish the new boundaries between the said tracts of land.
13. Gaius, On the Law of the Twelve Tables, Book IV.
It should be remembered that in the action for the establishment of boundaries the rule must be observed which, to a certain extent, coincides with the plan of the one which Solon is said to have passed at Athens, which is as follows: "Where a party builds a wall adjoining the land of another, he must not go beyond the boundary; if it is a wall built of masonry, he must leave a foot; if it is a house, two feet. If he digs a grave or a ditch, he must leave an open space equal in width to the depth of the same; if a well, the width of a pace. If he plants an olive or a fig-tree, he must place it nine feet from the adjoining land, and in the case of other trees he must leave five feet."
TITLE II.
CONCERNING THE ACTION FOR THE PARTITION OF AN
ESTATE.
1. Gaius, On the Provincial Edict, Book VII.
This action is derived from the Law of the Twelve Tables, for it was considered necessary, where co-heirs desired to relinquish ownership in common, that some kind of action should be established by which the property of the estate might be distributed among them.
(1) This action, in fact, can be brought directly by a party who is not in possession of his share. Where, however, he who is in possession of the estate denies that the plaintiff is his co-heir, he can bar him by an exception stated as follows: "If the inheritance is not prejudiced with reference to the matter in question." If the party possesses his share, even though it may be denied that he is a co-heir, an exception of this kind will not be a bar; the result of which is that, in this instance, the judge himself who hears the case must determine whether the party is a co-heir or not; for if he is not, nothing will be adjudged to him, nor will his adversary be required to make him any payment.
2. Ulpianus, On the Edict, Book XIX.
By means of the action for the partition of an estate the latter can be divided whether it is derived from a will or passes by intestacy, and whether the estate is granted by the Law of the Twelve Tables, or by some other law, or by a Decree of "the Senate, or even by an Imperial Constitution. Generally speaking, an estate can be divided only between those after whose death an action to recover it can be brought.
(1) If a fourth of the estate is coming to anyone who was arrogated in accordance with the Constitution of the Divine Pius, then, because a party of this kind does not become either an heir or the possessor of the property, a prætorian action will be necessary for the partition of the estate.
(2) Moreover, if the peculium1 of the son of a family who is a soldier is in question, it can be forcibly asserted that an estate is created by the Imperial Constitutions, and therefore this action will be available.
(3) In an action for the partition of an estate, each of the heirs takes the part of both defendant and plaintiff.
1 The right of peculium was the privilege granted by the Civil Law to a son or a slave, while under the control of his father or master, to possess and enjoy property under certain restrictions. Every description of property was included under the designation, whether it was real or personal, and whether it consisted of written evidences of debt, rights of action on obligations, bequests or devises. By a strange anomaly of the Roman System a slave, although incapable of the absolute ownership of anything, could hold another slave (known as a vicarius) in in bondage as a part of his peculium.
There were many kinds of peculium, whose names were generally indicative of their origin. The peculium profectitium was derived by the son from the father either directly or indirectly; the peculium adventitium was acquired through the mother or anyone else but the father, or was what the child obtained by his own labor or other exertions. Peculium castrense embraced whatever personal effects came into the hands of a minor under paternal control as the result of military service; of which booty taken in war, bequests of comrades in arms, and rewards for bravery, constituted the principal portion. Under the head of peculium quasi castrense were classed acquisitions from professions, and public employments of every kind, excepting those of a military character; such as fees obtained by the practice of law and medicine, the salaries of teachers, and the emoluments of government officials. Peculium militare was a general term including both castrense and quasi castrense; peculium paganum was used to designate both profectitium and adventitium, and was employed in contradistinction to militare.
The consent of a father or a master was not indispensable to enable a son or a slave to accumulate or hold peculium as, if it was not specifically stated, it was always presumed. The legal ownership was vested in the person possessing paternal or magisterial authority, and the party under control could not, by testament or otherwise, dispose of any property which was nominally his own, unless his superior had expressly conferred upon him absolute power of alienation. The former was responsible to the extent of the peculium for any contracts or pecuniary obligations incurred, and he was personally liable for the entire indebtedness if he had authorized it, or had, in any way, profited by the transaction.
The liability of the master, so far as the business affairs of his slaves were concerned, was an important consideration in the eye of Roman jurisprudence. The pride of the Roman noble would not tolerate his engaging in commercial pursuits, but he was, by no means, averse to the advantages to be obtained from their successful exercise; hence he employed his slaves — who were frequently men of fine education and great financial ability — to act as his factors and brokers in
(4) Again it cannot be doubted that an action for the partition of an estate can be maintained where only a few heirs out of many institute proceedings.
(5) Although claims are not considered in this action, nevertheless, if stipulations had been entered into with reference to the division of the same, so that it is settled that each party shall assign rights of action to the other and appoint him agent for the transaction of his business, the division shall be adhered to.
3. Gaius, On the Provincial Edict, Book VII.
It is evident that it sometimes becomes the duty of the judge to see that different debts and claims are assigned to different heirs in severalty, because it often occurs that the payment or collection of debts to be apportioned among different shares causes no small degree of inconvenience. Still, this assignment does not always have the effect of rendering a single heir liable for the entire indebtedness, or of giving him the right to collect all of it, but the result merely is that if proceedings are instituted, the heir brings them partly in his own name and partly in the capacity of agent; or, where an action is brought against him, he is sued partly in his own name and partly as agent.
Although the creditors are fully empowered to bring suit against each individual heir; the latter still have a perfect right to substitute in their places such parties as the order of the court indicates should sustain the burden of the action.
the prosecution of mercantile and speculative ventures of every description, which frequently involved the investment, expenditure, and collection of vast sums of money; a large proportion of which was classed as peculium.
Even if a slave was manumitted, he was not entitled to his peculium, if his master desired to assert his right; but if while the latter was living he failed to do so, he was understood to have relinquished his claim. In all other instances than those above mentioned, at the death or change of status of the slave, his peculium immediately passed into the possession of his master.
The rigor of these rules was considerably relaxed under the Empire. The peculium castrense, established by Augustus, was at the absolute disposal of a son subordinated to parental authority, and this privilege was afterwards extended to quasi castrense acquisitions by Constantine. A Constitution of Justinian permitted a son to own property which he had received or inherited from any relative other than the one to whom he owed obedience, subject, however, to the usufruct of the latter during his lifetime.
The Greeks, also, allowed slaves to hold and alienate property, provided they paid a nominal sum annually to their masters; and the latter were compelled to manumit them if they had accumulated enough to purchase their freedom. (Potter, Antiquities of Greece, I, X, page 77.)
While the Hebrews were in captivity in Egypt they had cattle of their own, and probably other possessions. (Exodus, IX, 4, 24, 25, 26.)
The unrestricted control of the property of a child by its father is established by Mohammedan Law. "The father may discharge his personal debt from the property of the minor. The same is the case with pledge." (Syed Ameer Ali, Mohammedan Law, I, XXIII, 3.)
According to the rule of both English and American jurisprudence, a child is absolutely incapable of owning property until it attains its majority.
The Code of Louisiana permitted a slave to have peculium provided his master gave his consent, but he could not alienate it. If he could have inherited property if free, and if he had free descendants the succession could pass through him to
4. Ulpianus, On the Edict, Book XIX.
Therefore everything except pecuniary claims are included in this proceeding. But if a pecuniary claim is bequeathed to one of several heirs, the said heir can obtain it by a suit for partition of the estate.
(1) Noxious drugs and poisons are embraced in this action; but the judge ought by no means to interfere in matters of this description, for it is his duty to perform the functions of a good and innocent man. He should act in the same manner with reference to books which it is improper to read (for instance, those treating of magic and similar subjects); all of these, however, should be immediately destroyed.
(2) Moreover, where anything has been acquired by peculation or sacrilege, or by violence, theft, or aggression, it shall not be divided.
(3) The judge should order the will to be placed in the hands of him who is heir to the greater portion of the estate, or to be deposited in a temple. Labeo says that where the estate is sold, a copy of the will should be deposited, and that the heir should furnish a copy, but he himself ought to keep the original will or deposit it in the temple.
5. Gaius, On the Provincial Edict, Book VII.
Where any inheritable obligations are included in the property of the estate, the judge should take care that they remain in the possession of the party who is heir to the largest share; the others are entitled to copies which must be verified, and a bond shall be executed by the said heir to the effect that the original documents will be produced when occasion requires this to be done.
Where all the heirs are entitled to equal shares, and no agreement is made between them with reference to the party with whom the instruments are to be left, they must cast lots, or a friend should be chosen by common consent or by vote with whom they may be deposited, or they must be placed for safe keeping in some consecrated temple.
them. "All that a slave possesses belongs to his master, he possesses nothing of his own but his peculium, that is to say, the sum of money, or movable estate which his master chooses he shall possess.
"They can transmit nothing by alienation or otherwise." (Civil Code of Louisiana Secs. 175, 176.) No other slave State conceded to a person in bondage the right to even the precarious possession of property accorded by Louisiana. Elsewhere, the slave was declared by statute to be unqualifiedly a chattel personal, and hence legally incapable of even conditional ownership. (Gooddell, The American Slave Code, Chap VI.) (Stroud, A Sketch of the Laws Relating to Slavery, II, V.)
The Supreme Court of South Carolina, in an early case, held that one slave could purchase another with the proceeds of his labor for the purpose of emancipation, and in this manner acquire a temporary and provisional ownership, although no claim to such ownership had been asserted by the purchaser. The owner of the latter was decided to have no interest in the slave who was the subject of the transaction, (Bay's Reports, I, 260-263.)
Later rulings everywhere were absolutely at variance with this decision, which was naturally considered as establishing a bad precedent. — ED.
6. Ulpianus, On the Edict, Book XIX.
The settlement of the matter by submitting it to competition, so that the party who makes the highest bid shall be entitled to possession of the obligations, belonging to the estate, is not approved by either Pomponius, or by myself.
7. Venuleius, Stipulations, Book VII.
If an heir, in an instance where a co-heir was added under a condition, or is in the hands of the enemy, should assert that he himself is the heir, and having brought an action should gain it, and afterwards the condition upon which the inheritance of the other heir depended is fulfilled, or the latter returns by postliminium; ought the other heir to share with him the advantages of his victory? He is undoubtedly entitled to an action to enforce judgment for the entire amount. In this case the co-heir should be granted his choice, that is to say, he must either be given a share of the estate or he must have the power to institute proceedings, for he is one who became an heir, or returned to the city, after his co-heir had been successful. The same rule must be observed where a posthumous child is born. These parties are not to blame on account of their silence, since they only obtained a right to the estate after their co-heir had won his case.
8. Ulpianus, On the Edict, Book XIX.
Pomponius says that where accounts are bequeathed as a preferred legacy to one of several heirs, they must not be delivered to him before his co-heirs have taken copies of the same. For, he says, suppose a slave who is a steward was bequeathed, he should not be delivered until he has rendered his accounts. We should consider whether a bond ought not to be executed providing that whenever the accounts are required, or the said steward bequeathed, they shall be produced; as it is frequently necessary that the original accounts and the steward himself should be produced in court for the explanation of matters which subsequently arise and in which the knowledge of the steward is involved; and it is necessary that a bond should be furnished the co-heir in this matter by the heir aforesaid.
(1) Pomponius also states that pigeons which are accustomed to leave the pigeon-house are included in the action for the partition of an estate, because they are our property as long as they have the custom of returning to us; and therefore if anyone should seize them, we are entitled to an action for theft.
The same rule applies to bees, because they are part of our property.
(2) Moreover, where one of our cattle is carried off by wild beasts, Pomponius thinks that if it escapes from said beasts it is to be included in the action for the partition of an estate; for he says it is the better opinion that, where anything is carried off by a wolf or any other wild beast, it does not cease to be ours so long as it is not devoured.
9. Paulus, On the Edict, Book XXIII.
This action also includes property which the heirs have acquired by usucaption, in instances where it was delivered to the deceased, and also property which was delivered to the heirs, and which the deceased had purchased.
10. Ulpianus, On the Edict, Book XIX.
Also real property which belongs to our patrimony as well as land held by perpetual lease, or such as relates merely to the surface. Property of which the deceased had possession in good faith, even although it belonged to another, likewise comes under this rule.
11. Paulus, On the Edict, Book XXIII.
The child of a female slave, if it is born after the estate has been entered upon,
12. Ulpianus, On the Edict, Book XIX.
And even after issue had been joined can, as Sabinus states, be included in an action for the partition of an estate, and be made the subject of adjudication.
(1) The same principle will apply where anything is given by a stranger to slaves forming a portion of the assets of an estate.
(2) Property bequeathed under a condition in the meantime belongs to the heirs, and is therefore included in the action for the partition of an estate, and can be made the subject of adjudication; subject of course, to the restrictions attaching to the same, so that if the condition is fulfilled it will be taken away from the party to whom it was adjudged; or, upon failure of the condition, it will revert to those charged with the bequest.
The same rule applies in the case of a slave who is to be liberated on a condition, for in the meantime he belongs to the heirs, but when the condition has been fulfilled he obtains his freedom.
13. Papinianus, Questions, Book VII.
Disposal of property after issue has been joined is forbidden, but this only applies to such as is voluntary, and not to such as becomes necessary through some former liability and originates in some legal requirement.
14. Ulpianus, On the Edict, Book XIX.
But where the right of usucaption has begun to run before issue is joined in favor of a party who is not an heir, and is subsequently completed, this removes the property from the case.
(1) The question arises whether an usufruct is embraced in the action; as, for example, where an usufruct was reserved and the land left to others than the heir:
15. Paulus, On the Edict, Book XXIII.
Or where an usufruct was bequeathed to a slave belonging to the estate; as an usufruct cannot depart from the party in interest without being lost.
16. Ulpianus, On the Edict, Book XIX.
I think that it is part of the duty of the judge that, if the heirs should wish to relinquish their common ownership of the usufruct, he should accede to their wishes after causing them to give security to one another.
(1) Julianus says that where a Court adjudges the land to one heir and the usufruct of the same to another, the usufruct does not become common property.
(2) An usufruct can be adjudged from a certain time, or until a certain time, or for alternate years.
(3) Land which a river adds by alluvium to an estate after issue is joined is also included in an action of this kind.
(4) Where, however, an act has been committed maliciously or negligently by one of the heirs whose effect is to diminish the value of the usufruct, Pomponius says that this likewise comes within the scope of the action; for everything which an heir maliciously or negligently does to the damage of the estate will be considered in all actions for partition of the same, provided always that he commits the act in the capacity of heir. Therefore, if one of the heirs deprived the testator of money during his lifetime, this will not be included in the action for partition of the estate, because he was not yet an heir; but where he acted as an heir, even though the party interested should be entitled to some other action, nevertheless, as Julianus states, he is liable to a suit for partition of the estate.
(5) Finally, he says that if any one of the heirs should destroy accounts belonging to the estate or falsify them, he will be liable under the Lex Aquilia for destroying the same, and he will also be liable to an action for partition of the estate.
(6) Moreover, where a slave who belongs to an estate steals the property of one of the heirs, Ofilius says that an action for partition of the estate will lie, as well as one for the partition of property held in common, but an action for theft cannot be brought; and hence if the heir brings an action for partition of the estate he will obtain a judgment by which the slave will be given to him, or the damages assessed, that is to say simple damages will be granted him.
17. Gaius, On the Provincial Edict, Book VII.
Where an injury is committed by one of the heirs, it is proper to state that simple damages should be considered in the action for partition of the estate.
18. Ulpianus, On the Edict, Book XIX.
In accordance with these rules, Julianus says that where there are several heirs, and a slave is left to one of them, in general terms, with the right of selection, and the remaining heirs allege that Stichus has falsified the will or defaced it, and they make this statement in order to avoid a slave being chosen; and then, after he has been chosen an action is brought to recover him, they can, if they are sued, avail them-
selves of an exception on the ground of malicious fraud and subject the slave to torture.
(1) The question arises whether in an action for the partition of an estate the heirs have a right to use torture with reference to the death of the testator, or to that of his wife and children; and Pomponius very properly says that these things have no reference whatever to the division of the assets of the estate.
(2) He also says that where anyone provides by will that a slave shall be sold in order to be transported to a distance, it is the duty of the judge to see that the wishes of the deceased shall not be thwarted.
But where the testator ordered that a monument should be erected, an action for the partition of an estate can be brought to compel this to be done. He suggests, however, that since it is to the interest of the heirs — as they will have a right in the monument — any one of them can institute proceedings in express terms to have a monument erected.
(3) Where one of the heirs incurs expenses in good faith, he can collect interest from a co-heir from the time of his default, in accordance with a Rescript of the Emperors Severus and Antoninus.
(4) Celsus also very appropriately adds that a co-heir, even if he does not make payment himself, nevertheless, is entitled to an action for partition of the estate to compel his co-heir to pay his share; as, otherwise, the creditor will not relinquish a certain piece of property unless he is paid in full.
(5) Where the son of a family was his father's heir to a share of the estate and was sued by creditors for his peculium, he being prepared to pay all that was due, he can, by means of an exception on the ground of malicious fraud, compel the creditors to assign their rights of action to him; and he is, in addition, entitled to an action for the partition of an estate against his co-heirs.
(6) Where one of the heirs has paid a legacy to a party who is directed by the court to take possession for the purpose of preserving legacies; Papinianus thinks, and his opinion is correct, that he is entitled to an action for the partition of the estate against his co-heirs; because the legatee would not otherwise give up the possession which he had once obtained, it being equivalent to security, until the entire legacy was paid to him.
(7) Moreover, if anyone should pay a debt to Titius to avoid the sale of a pledge, Neratius states that he can institute proceedings for partition of the estate.
19. Gaius, On the Provincial Edict, Book VII.
Again, on the other hand, the judge ought to provide in like manner that, where one of the heirs has pecuniarily profited by the property of the estate, or has entered into a stipulation to its disadvantage, he shall not be the only one to be benefited. The judge can accomplish this by either causing accounts to be rendered by the different heirs, or by causing them to give security to one another by means of which the profits and losses will be equally divided between them.
20. Ulpianus, On the Edict, Book XIX.
Where a married daughter who was obliged to bring her dowry into the common fund, through an error of her co-heirs gave a bond that she would pay them in proportion to their shares whatever she recovered from her husband; Papinianus says that, notwithstanding this, the arbiter in the action for partition must decide that even if she herself should die while the marriage existed the dowry must be contributed; for ignorance of the co-heirs can not change the rules which govern legal proceedings.
(1) Where the son of a family has become liable to an obligation by order of his father, he must reserve the amount out of the assets to pay the debt; and, moreover, if he has expended money on property belonging to his father, the same rule will apply, and if the action is de peculio he will reserve the peculium for the same purpose; and this our Emperor stated in the Rescript.
(2) In addition to this, where the son of a family is appointed heir, he can reserve the dowry of his wife; nor is this unreasonable, since he must sustain the pecuniary burdens of matrimony. Therefore, he can retain the entire dowry, and must furnish security that he will defend his co-heirs who may be sued on the stipulation. The same rule applies where another party gave the dowry and entered into the stipulation. This is applicable not only to the dowry of his own wife, but also to that of his son's wife, since this also has reference to the expenses of matrimony for which he is responsible: because he is required to be liable for the expenses of his son and daughter-in-law. Marcellus says that the son must retain the dowry, not only where it was given to his father but also where it was given to himself, as his son; to the extent that it was given to him as being included in his peculium, or where it was expended for the benefit of his father.
(3) Where a father divides his property among his sons without any writing, and distributes the burden of his debts among them in proportion to what they possess; Papinianus says that this should not be considered a simple gift, but rather a division of property under a last will. It is clear, he says, that if the creditors bring suit against said heirs in proportion to their shares in the estate, and one of them refuses to abide by what was agreed upon, an action can be brought against him on special grounds, alleging that they made an exchange under a certain agreement; of course if all the property was divided.
(4) The action for the partition of an estate cannot be brought more than once, unless proper cause is shown; because if any property is left undivided, an action can be brought for its distribution.
(5) Papinianus says that if one of the heirs is required to pay a debt without this being provided for by way of a legacy; then the heir will be forced to assume payment by the judge presiding in the action for partition of the estate, but not for a greater amount than three quarters of his share, so that he may have one quarter undiminished; and therefore he must provide security to protect his co-heirs.
(6) He also says that if a son is liable for expenses which he has incurred on account of a public office that his father consented for him
to administer, and is then appointed heir to a share of the estate, he can reserve the amount which he owes, because this was one of his father's debts; but where he administered any offices after the death of his father, the heirs of the latter will not be liable for any obligations incurred with reference to said offices.
(7) Neratius, however, gave it as his opinion that where a man who had several sons consented that one of them should undertake the office of the functionary who has charge of arranging and regulating public games, and, before he perform the duties of the office, his father should die, after having appointed all his sons his heirs; the question arises whether the said son could, by an action for partition of the estate recover what he had expended in the matter; and he answered he could not recover it by any action. This opinion is not accepted, and very justly, for the expense should be included in the action for partition of the estate.
(8) Papinianus also says that if a husband orders one of his heirs to assume the burden of paying the dowry, which is included in a stipulation, and his widow brings suit for her dowry against both heirs, the heir who was ordered to assume the burden must defend his coheir in the action. But where both heirs are charged with the payment of legacies instead of the dowry, and the widow elects to receive the dowry, the legacies are retained by said heirs, but this must not be for the benefit of the co-heir who is released from payment of the debt; that is to say, the co-heir who assumed the burden of the debt, should, by order of the court, obtain the legacy; and this is true unless the testator provided otherwise.
(9) He also says that where a slave who is to be liberated on a condition pays money out of his peculium to one of several co-heirs, for the purpose of fulfilling the condition, it will not be included in this action, and should not be subject to contribution.
21. Paulus, On the Edict, Book XXIII.
The same rule applies in the case of an action brought for the partition of property held in common.
22. Ulpianus, On the Edict, Book XIX.
Moreover, Labeo says that if one of the heirs digs up any treasure which the testator left, he will be liable to an action for partition, just as if he had divided the treasure with a stranger who was aware of the fact.
(1) The judge in an action for the partition of an estate can adjudge the same property to several parties only where the right to have one thing was left to several persons; (or where, as Pomponius says, the necessity existed that the shares should be adjudged to several persons); or where the judge assigns a certain part of the property to each of the co-heirs; he can, however, adjudge the property to one heir after it has been bid for by all.
(2) Moreover, no one doubts that he can adjudge land that has been divided in accordance with the distribution which has already taken place.
(3) Again, when he makes these adjudications he can impose a servitude so as to make one tract which he assigned serve another; and if he absolutely adjudges a tract to one heir, he cannot, in assigning another, impose a servitude upon the first one.
(4) An action for the partition of an estate has reference to two matters; that is to say, the property, and delivery of the same, these being personal actions.
(5) Papinianus criticizes Marcellus for his opinion concerning property held by the enemy, because he does not think that transfers of property of this kind are included in the action for the partition of an estate. For how can there be any impediment to an action for the transfer of property when the very property itself is included,
23. Paulus, On the Edict, Book XXIII.
On account of the hope of postliminium? Of course a bond should be given, because the party might not return; unless there was only an estimate made of an event that was uncertain.
24. Ulpianus, On the Edict, Book XIX.
Where, however, property has ceased to be in existence, the question of transfer may still arise; and I agree with Papinianus.
(1) The action for partition applies to the possessors of the property of an estate, and also to a party to whom an estate has been restored in accordance with the Trebellian Decree of the Senate, and to other Prætorian successors.
25. Paulus, On the Edict, Book XXIII.
The heirs of a person who died in the hands of the enemy can bring this suit.
(1) Where a soldier makes one person an heir to his castrensian property and another an heir to the remainder of his estate, there is no ground for an action for partition; since the property will be divided between the heirs according to the Imperial Constitution, just as a suit for the partition of an estate cannot be brought where there is no corporeal property, but the assets all consist of claims.
(2) With reference to the point as to whether a party is entitled to undertake the defence in an action for partition, it makes no difference whether he has possession of the estate or not.
(3) Where several estates are held in common by different persons under different titles, a single action in partition can be brought.
(4) Where the Titian estate is held in common by you and me, and that of the estate of Seius is held by you and Titius and myself, Pomponius says that one action can be brought to which all three persons will be parties.
(5) Moreover, where several estates are held by us in common, we can proceed by an action for partition with reference to one of them alone.
(6) Where a testator holds property in common with a stranger, or bequeathed to anyone a portion of his property; or his heir, before
joinder of issue in an action for partition, alienated his own share; it is the duty of the judge to order that the share which was the property of the testator should be transferred to some one.
(7) Where a co-heir has possession of property as a purchaser, or, for instance, has received it as a gift; Pomponius denies that it can be included in an action for partition of the estate.
(8) He also says if you and I become the heirs of Titius, and you bring an action against Sempronius for a portion of a tract of land all of which you say is included in the estate, and you are defeated; and I then purchase the same share from Sempronius and it is transferred to me, and you bring an action for partition, this will not only not include what I am in possession of as heir, but will not even embrace what I hold as purchaser; for, as it was evident by the former decree that the entire tract of land was not included in the estate, how could it be included in a suit for the partition of the latter?
(9) It is doubtful whether a stipulation, the terms of which give each heir a right of action for the entire amount, is included in a suit of this kind; as for instance, where a party dies after having stipulated for a right of way, a path or a driveway, for the reason that a stipulation of this kind according to the Law of the Twelve Tables is not permitted to be divided, because this cannot be done. The better opinion, however, is that it is not included in the action, but that all the heirs have a right to bring suit for the entire amount; and if the right of way is not furnished, the decision against the defendant should be for a sum of money in proportion to the share of the plaintiff in the estate.
(10) On the other hand, where a person who promises a right of way dies after having appointed several heirs, the obligation is not divided; and there is no doubt that it continues to exist, since a party can promise a right of way who has no land. Therefore, since each individual heir is liable for the whole, it is the duty of the judge to require bonds to be furnished, so that if any one of the heirs should be sued and pay the damages assessed by the Court, he can recover a portion of the amount from the others.
(11) The same rule applies where a testator bequeaths a right of way.
(12) In the case of a different stipulation also, where a testator promised that nothing should be done by him or by his heir to prevent the other party from walking or driving, since, if one co-heir should prevent this a suit for the entire amount can be brought under the stipulation, the interests of the co-heir must be protected to prevent the act of one of them being prejudicial to the others.
(13) The same rule of law applies to a sum of money promised by a testator, if it was promised under a penalty; for although this obligation may, according to the Law of the Twelve Tables, be divided; still, for one party to pay his share will not in any way contribute to the avoidance of the penalty, yet, if the money has not been paid, or is not due, recourse must be had to a bond, so that provision may be made for the indemnity of the others by the party who is to blame for all the
money not being paid; or each one must give security that he will make good a part to whoever pays the whole amount; or where one of the heirs pays the entire sum promised by the testator in order to prevent the penalty from attaching, he can recover from his co-heirs their shares of the same in an action for partition.
(14) The same rule is observed in the redemption of pledges, for unless a tender is made of the entire amount which is due, the creditor can legally sell the pledge.
(15) Where one of several co-heirs defends an hereditary slave in a noxal action, and tenders the amount of estimated damages, where this is expedient, he can by this action recover a part of what was paid.
The same rule applies where one co-heir gives security with reference to legacies, to prevent the legatees from being placed in possession. And, generally speaking, where measures cannot be taken for a division, if one party should act under the force of necessity, there will be ground for an action in partition.
(16) A co-heir is responsible not only for malice but also for negligence committed with reference to the assets of an estate, since we do not contract with the co-heir but happen upon him accidentally; still, a co-heir is not obliged to be accountable for as much diligence as the careful head of a family would exercise, as he had good reason for acting on account of his own share; and therefore he would not be entitled to an action on the ground of business transacted, hence he must therefore employ the same diligence which he would display in his own affairs. It is the same where property is bequeathed to two legatees; for it was not their consent but the circumstances of the case which united them in ownership.
(17) Where a slave is bequeathed in indefinite terms and the legatee afterwards dies, and one of the heirs of said legatee, by not giving his consent, prevents the legacy from being paid, he who caused the hindrance shall be compelled, by means of this action, to pay to the others whatever the interest of each amounts to. The same rule applies where, on the other hand, one of the heirs at whose charge a slave has been bequeathed in general terms, being such a one as they themselves might select, is unwilling to consent that a slave should be delivered whom it would be beneficial to all to have thus disposed of, and, in consequence, the heirs are sued by the legatee and compelled to pay, by way of damages, a larger sum than the slave is worth.
(18) Moreover, a man is liable on account of negligence who, after he had entered upon an estate before others, suffered servitudes attached to lands belonging to the estate to be lost by want of use.
(19) Where a judgment is rendered against a son who was defending his father in a suit, and he pays the amount of the judgment either during the lifetime of his father or after his death; it can very properly be stated that he has a right to bring suit for recovery against his coheir in an action for partition.
(20) A judge who presides in an action for partition of an estate should leave nothing undivided.
(21) He must also provide that security be given to those to whom he awards the estate against recovery of the property by eviction.
(22) When money which is not left in the house is bequeathed to be taken before division, whether the co-heirs should pay the entire amount, or only what is in proportion to their shares in the estate; just as if the money had been left among the remaining property of the estate is a question with reference to which some doubt exists; but the better opinion is that what must be paid is the amount that would be paid if the money had been found.
26. Gaius, On the Provincial Edict, Book VII.
It is part of the duty of the judge to order one or more things belonging to the estate to be sold, and the proceeds of the sale to be paid to any person to whom said money was bequeathed.
27. Paulus, On the Edict, Book XXIII.
In this action judgment must be rendered against every party, or all must be discharged from liability; hence, if the decision is omitted with reference to any one whomsoever, what the judge does with reference to the others will not be valid; because a decision cannot be valid with respect to one part of the question at issue, and void with respect to another.
28. Gaius, On the Provincial Edict, Book VII.
Where a testator bequeaths property to be taken before division, which he has already pledged to a creditor; it is in the province of the judge to redeem it out of the common fund of the estate, and see that he to whom it was bequeathed in this way shall have it.
29. Paulus, On the Edict, Book IV.
Where property was given to the deceased by way of pledge, it must be said to be included in the action for partition of the estate; but he to whom it is awarded should be required to pay his co-heir for the same in proportion to his share of the estate in an action for partition; but he need not give security to his co-heir that he shall be indemnified with reference to the party who pledged the property; for the reason that the case will be the same as if an hypothecarian or Servian Action had been brought, and the estimated amount had been tendered; so that the party who made the tender may be protected by an exception against the owner bringing suit to recover the property.
Again, on the other hand, if the heir to whom the pledge was adjudged desires to restore the whole, he should be heard, even though the debtor be unwilling. The same rule does not apply where the creditor purchases the other portion of the property pledged, because adjudication by the court is necessary, but the purchase is voluntary; unless the objection should be made that the creditor bid for the property too eagerly. The reason why this is taken into account is because what the creditor did must be considered as if the debtor had done it through an agent, and whatever necessary expenses the creditor incurred he has a right to recover in an action besides.
30. Modestinus, Opinions, Book VI.
I hold a tract of land in common with a female minor who is also my co-heir, and in said land remains are buried to which reverence is due from both of us; for the parents of the minor are buried there. Her guardians, however, desire to sell the land, but to this I do not consent, as I prefer to retain possession of my own share, since I cannot purchase it all, and I wish to discharge my duty to the dead in accordance with my own judgment. I ask whether I can legally petition for an arbiter in an action for the partition of said tract of land; or whether the arbiter who is appointed for the partition of an estate can discharge the functions of his office and also divide the said property between us according to the rights of each; the remaining assets of the estate being left out of consideration. Herennius Modestinus answered that there was nothing in what was proposed to hinder the party appointed arbiter in the action for the partition of the estate from including in his duties the matter of dividing the said tract of land; but religious places could not be brought into the action, as the rights with respect to them belong to the individual heirs interested in the entire estate.
31. Papinianus, Questions, Book VII.
Where a slave who is pledged is redeemed by one of the heirs, then, even if he should afterwards die, the office of the arbiter will, nevertheless, continue to exist; for there is sufficient reason for this on account of the joint ownership which previously existed and would have continued to exist up to this time, if the property had not been destroyed.
32. The Same, Opinions, Book II.
Property which a father has not divided among his children, after having given them rights of action instead of the division, belongs to said children in proportion to their respective shares in the estate, provided he did not give the property which he did not divide in general terms to one child; or it was not accessory to the property which was given.
33. The Same, Opinions, Book VII.
Where the father of a family, in devising land to his respective heirs, wished to act the part of an arbiter in the partition; one co-heir will not be compelled to surrender his share unless he obtains in return for the same a share which is free from the incumbrance of the pledge.
34. The Same, Opinions, Book VIII.
Where a valuation is placed upon slaves by co-heirs at the time of division, it has been held that prices are placed upon them not for the purpose of purchase, but for that of division; hence, if any of them dies while the condition is pending, the loss must be borne by both the heir and the beneficiary.
35. The Same, Opinions, Book XII.
Pomponius Philadelphus transferred certain tracts of land by way of dowry to a daughter who was under his control, and directed that the
income of the same should be paid to his son-in-law. The question arose whether the daughter could retain the property as her own if her father appointed all his children heirs. I answered that she would have good cause to retain possession of the same, since her father wishes the land in question to be given by way of dowry, and that the marriage had continued even after the death of the father; for the case under consideration was that the daughter held possession of the property according to natural law by virtue of the dowry which she was capable of receiving.
36. Paulus, Questions, Book II.
I, being under the impression that you were my co-heir, although this was not true, brought an action for partition against you, and adjudications were made and orders issued by the Court, to make payment to both of us. I ask whether, when the truth of the facts is ascertained, a personal action will lie in favor of each of us, or one to recover the property; also whether one rule is to be adopted with reference to a party who is an heir, and another with reference to one which is not. I answered that where a person is heir to an entire estate and, thinking that Titius is his co-heir, joins issue with him in an action in partition, and a decision directing payment is rendered, he makes payment; then, since he did this in compliance with the decision of the judge, he cannot bring an action to recover the money. You, however, seem to hold that no action in partition can exist except between coheirs; but although the action is not legal, still, it is sufficient to prevent the suit to recover what the party believed he was obliged to pay.
But, if neither of the parties was an heir, yet joined issue in an action for partition just as if they were heirs, the same rule for recovering the property which we previously stated applies to one of them must be said is applicable to both. It is evident that, if they divided the property without application to the court, it may be stated that the heir who thought the other party was his co-heir has a right of action for the transfer of the property delivered to the latter; for it cannot be held that there was any compromise between them since he believed him to be his co-heir.
37. Scævola, Questions, Book XII.
A party who brings an action for the partition of an estate does not admit that his adversary is his co-heir.
38. Paulus, Opinions, Book III.
Lucius and Titia, who were brother and sister, having been emancipated by their father, when grown up had curators appointed for them, and the latter furnished them individually with money which was common property, having been obtained from the income of an estate. They subsequently divided the entire estate between them, and, after the division, Titia, the sister, instituted proceedings against her brother alleging that he had received more than she had; while, in fact, Lucius had not received more than his share, but even less than half the property. I ask whether Titia had a right of action against her brother? Paulus answered that: "In accordance with the statement of the case, if
Lucius did not receive more from the income of the property held in common than he was entitled to on account of his share in the estate, his sister has no right of action against him." He gave the same answer in a case where it was alleged that a brother had received a larger amount for maintenance from the Prætor than his sister, but still not more than half.
39. Scævola, Opinions, Book I.
Where a person was appointed heir to a share of an estate with reference to which an action had been brought against the heirs because they did not avenge the death of the testator, he gained his case, and the co-heir then brought suit to recover his share from the other heir, but refused to pay his allotment of the expense incurred in the defence of the other suit. The question arose whether he would be barred by an exception on the ground of fraud? I answered that if greater expenses had been incurred by reason of the defence which he had made for the benefit of the said co-heir himself, this expense must be taken into consideration; but if the other party did not plead an exception on the ground of fraud, he could bring suit for the recovery of part of the expenses.
(1) A man who died intestate divided all his land and other property among his children by means of codicils, in such a way that he left a great deal more to his son than to his daughter. The question arose whether the sister had a right to bring her dowry into the common fund for the benefit of the brother? I answered that, according to the statement of facts, if the testator left nothing undivided, the better opinion was that the right to bring the dowry into the common fund was removed by the wish of the testator.
(2) A testator granted freedom to a slave, who was fifteen years of age, when he should reach the age of thirty; and also indicated that he desired that there should be given him from the day of his death, as long as the slave lived, ten denarii for his food, and twenty-five denarii for his clothes. Stichus died before the day when he was to become free arrived, and the question arose whether the legacy relating to food and clothing was valid; and whether, if it was not valid, the heir who had paid it could recover it from his co-heir with whom the slave had lived? I answered that if the money had not been due, but if what had been given had been expended for food, it could not be recovered.
(3) A son who, after the death of his father, contracted debts due to the Government, cannot charge his brother with said debts in proportion to his share in the estate of his father, if the brothers are not partners in all their property; even though they held the estate of their father in common, and their father had discharged the duty of a magistrate where he resided in behalf of his other son.
(4) A testator appointed his two sons his heirs, and before distribution bequeathed certain slaves to each of them; among said slaves a certain Stephanus was left to one of the sons together with his peculium. The said slave, having been manumitted during the lifetime of the testator, died, and afterwards the father died. The question then arose
whether what Stephanus had in his peculium before he was manumitted belonged to both sons, or only to the one to whom he had been previously bequeathed together with his peculium? I answered that, according to the statement of the case, it belonged to both.
(5) A father who divided his property between his sons and confirmed the division by his will, provided that any debt which either of them had contracted or should contract, he alone should be liable for the same. One of his sons having afterwards borrowed money, the father appeared, and with his consent the land which had been transferred to the said son was pledged for the debt, and after the death of the father the same son who was in possession of the land paid the interest, I ask whether, if the creditor should sell the land which was pledged, anything should be paid to this son by a co-heir if an action for partition of the estate should be brought? I answered that, in accordance with the facts stated, he would not be required to pay anything.
40. Gaius, Trusts, Book II.
Where anyone who is appointed heir to an entire estate is asked to deliver a certain portion of it to me, for instance, half; an equitable action for partition can properly be brought between us.
41. Paulus, Decrees, Book I.
A certain woman appealed from the decision of a judge because, as she stated, in an action for the partition of an estate between herself and the co-heir, he had divided not only the property but the freedmen also, as well as an obligation for maintenance directed by the testator to be furnished to certain freedmen; which, she alleged was something that he had no right to do. On the other hand, it was stated that the parties had agreed to the division, and had paid sums for maintenance in accordance with the terms of the division for many years. It was decided that they must abide by the provision for maintenance; but the judge added that the division of freedmen was of no effect.
42. Pomponius, On Sabinus, Book VI.
Where a legacy is bequeathed to one of several heirs in the following terms, "Let him retain what he owes me;" it is the duty the judge has in an action for partition to prevent the co-heirs from exacting payment from the heir aforesaid; but, where one heir is ordered to retain what another owes, it is the duty of the judge to require the rights of action to be assigned to him in proportion to the share of a co-heir in the estate.
43. Ulpianus, On Sabinus, Book XXX.
One person can petition for the appointment of an arbiter in an action for the partition of an estate; for it is clear that a single heir can appeal to a judge, and therefore one heir can petition for an arbiter, even though the others are present and do not give their consent.
44. Paulus, On Sabinus, Book VI.
Proceedings may be instituted for the partition of land held in common by co-heirs in such a way that only the property which is held in common and matters relating to it which are pending in court shall be included; but with reference to all other things the right of action for the partition of the estate remains unimpaired.
(1) Where an action for the partition of an estate or for the division of property held in common has been tried; the Prætor will sustain any decisions made b