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. IX.
CINCINNATI THE CENTRAL TRUST COMPANY
Executor of the Estate Samuel P. Scott, Deceased
PUBLISHERS
Copyright, 1932
BY THE CENTRAL TRUST COMPANY Executor of the Estate Samuel P. Scott, Deceased
CONTENTS OF VOLUME IX.
THE DIGEST OR PANDECTS.
(Continued.)
BOOK XXXIX.
(Continued.)
TITLE III. PAGE
CONCERNING THE RIGHT TO COMPEL A NEIGHBOR TO TAKE CARE OF WATER AND RAIN-WATER ............................................ 3
TITLE IV.
CONCERNING FARMERS OP THE PUBLIC REVENUE, LEASES OF PUBLIC LANDS, AND FORFEITURES ............................................ 17
TITLE V. CONCERNING DONATIONS .......................................... 24
TITLE VI. CONCERNING DONATIONS AND OTHER ACQUISITIONS MORTIS CAUSA. ..... 35
BOOK XL.
TITLE I. CONCERNING MANUMISSIONS ...................................... 45
TITLE II. CONCERNING MANUMISSIONS BEFORE A MAGISTRATE ................... 51
TITLE III. CONCERNING THE MANUMISSION OF SLAVES BELONGING TO A COMMUNITY 56
TITLE IV. CONCERNING TESTAMENTARY MANUMISSIONS. ........................ 56
TITLE V. CONCERNING FREEDOM GRANTED UNDER THE TERMS OF A TRUST. ........ 71
TITLE VI. CONCERNING THE DEPRIVATION OF FREEDOM .......................... 103
TITLE VII. PAGE CONCERNING SLAVES WHO ARE TO BE FREE UNDER A CERTAIN CONDITION 103
TITLE Vill.
CONCERNING SLAVES WHO OBTAIN THEIR FREEDOM WITHOUT MANUMISSION .................................................... 124
TITLE IX.
WHAT SLAVES, HAVING BEEN MANUMITTED, DO NOT BECOME FREE, BY WHOM THIS is DONE; AND ON THE LAW OF .^LIA SENTIA. ......... 125
TITLE X. CONCERNING THE EIGHT TO WEAR A GOLD RING. ...................... 133
TITLE XI. CONCERNING THE RESTITUTION OF THE RIGHTS OF BIRTH ............... 134
TITLE XII. CONCERNING ACTIONS RELATING TO FREEDOM ......................... 135
TITLE XIII.
CONCERNING THOSE WHO ARE NOT PERMITTED TO DEMAND THEIR FREEDOM .................................................... 148
TITLE XIV. WHERE ANYONE is DECIDED TO BE FREEBORN ......................... 150
TITLE XV.
No QUESTION AS TO THE CONDITION OF DECEASED PERSONS SHALL BE RAISED AFTER FIVE YEARS HAVE ELAPSED AFTER THEIR DEATH. .... 151
TITLE XVI. CONCERNING THE DETECTION OF COLLUSION. ......................... 153
BOOK XLI.
TITLE I. CONCERNING THE ACQUISITION OF THE OWNERSHIP OF PROPERTY. ....... 154
TITLE II. CONCERNING ACQUIRING OR LOSING POSSESSION. ...................... 178
TITLE III. CONCERNING THE INTERRUPTION OF PRESCRIPTION, AND USUCAPTION ..... 198
TITLE IV. CONCERNING POSSESSION ACQUIRED BY A PURCHASER. ................. 214
TITLE V. PAGE CONCERNING POSSESSION AS HEIR OR AS POSSESSOR .................... 221
TITLE VI. CONCERNING POSSESSION ON THE GROUND OF DONATION ................ 222
TITLE VII. CONCERNING POSSESSION ON THE GROUND OF ABANDONMENT. ......... 223
TITLE Vill. CONCERNING POSSESSION ON THE GROUND OF A LEGACY. ................ 224
TITLE IX. CONCERNING POSSESSION ON THE GROUND OF A DOWRY. ................ 225
TITLE X. CONCERNING POSSESSION ON THE GROUND OF OWNERSHIP .............. 226
BOOK XLII.
TITLE I.
CONCERNING RES JUDICATA AND THE EFFECT OF DECISIONS, AND INTERLOCUTORY DECREES ........................................... 228
TITLE II. CONCERNING CONFESSIONS ......................................... 244
TITLE III. CONCERNING ASSIGNMENT FOR THE BENEFIT OF CREDITORS. ............ 246
TITLE IV. CONCERNING THE REASONS FOR POSSESSION BEING GRANTED ............ 247
TITLE V.
CONCERNING THE POSSESSION AND SALE OF PROPERTY BY JUDICIAL AUTHORITY ................................................. 254
TITLE VI. CONCERNING THE PRIVILEGES OF CREDITORS .......................... 259
TITLE VII. CONCERNING THE SEPARATION OF THE PROPERTY OF AN ESTATE ......... 264
TITLE Vill. CONCERNING THE APPOINTMENT OF A CURATOR OF PROPERTY ............ 269
TITLE IX.
CONCERNING RESTITUTION WHERE FRAUDULENT ACTS HAVE BEEN COMMITTED AGAINST CREDITORS .................................... 271'
BOOK XLIII.
TITLE I. PAGE
CONCERNING INTERDICTS OR THE EXTRAORDINARY PROCEEDINGS TO WHICH THEY GIVE RISE.............................................. 283
TITLE II. CONCERNING THE INTERDICT QUORUM BONORUM ....................... 285
TITLE III. CONCERNING THE INTERDICT QUOD LEGATORUM. ...................... 285
TITLE IV.
CONCERNING THE INTERDICT WHICH PROHIBITS VIOLENCE BEING EMPLOYED AGAINST A PERSON PLACED IN POSSESSION. ................ 288
*
TITLE V. CONCERNING THE PRODUCTION OP PAPERS RELATING TO A WILL. ....... 290
TITLE VI.
CONCERNING THE INTERDICT FOR THE PURPOSE OF PREVENTING ANYTHING BEING DONE IN A SACRED PLACE. ............................... 293
TITLE VII. CONCERNING THE INTERDICT RELATING TO PUBLIC PLACES AND HIGHWAYS 293
TITLE Vill.
CONCERNING THE INTERDICT FORBIDDING ANYTHING TO BE DONE IN A PUBLIC PLACE OR ON A HIGHWAY. .............................. 294
TITLE IX.
CONCERNING THE EDICT RELATING TO THE ENJOYMENT OF A PUBLIC PLACE ...................................................... 299
TITLE X.
CONCERNING THE EDICT WHICH HAS REFERENCE TO PUBLIC STREETS AND ANYTHING DONE THEREIN ..................................... 300
TITLE XI.
CONCERNING THE INTERDICT WHICH HAS REFERENCE TO REPAIRS OF PUBLIC STREETS AND HIGHWAYS. ............................... 301
TITLE XII.
CONCERNING THE INTERDIC^ WHICH HAS REFERENCE TO RIVERS AND THE PREVENTION OF ANYTHING BEING DONE IN THEM OR ON THEIR BANKS WHICH MAY INTERFERE WITH NAVIGATION ................ 301
TITLE XIII.
CONCERNING THE INTERDICT TO PREVENT ANYTHING FROM BEING BUILT IN A PUBLIC RIVER OR ON ITS BANK WHICH MIGHT CAUSE THE WATER TO FLOW IN A DIFFERENT DIRECTION THAN IT DID DURING THE PRECEDING SUMMER .......................................... 304
TITLE XIV.
CONCERNING THE INTERDICT WHICH HAS REFERENCE TO THE USE OF A PUBLIC RIVER FOR NAVIGATION. ................................ 306
TITLE XV.
CONCERNING THE INTERDICT WHICH HAS REFERENCE TO RAISING THE BANKS OF STREAMS. .......................................... 307
TITLE XVI.
CONCERNING THE INTERDICT AGAINST VIOLENCE AND ARMED FORCE. .... 308
TITLE XVII. CONCERNING THE INTERDICT UTI POSSIDETIS. ........................ 318
TITLE XVIII.
CONCERNING THE INTERDICT WHICH HAS REFERENCE TO THE SURFACE OF THE LAND .................................................. 321
TITLE XIX.
CONCERNING THE INTERDICT WHICH HAS REFERENCE TO PRIVATE RIGHTS OF WAY .................................................... 323
TITLE XX.
CONCERNING THE EDICT WHICH HAS REFERENCE TO WATER USED EVERY DAY AND TO SUCH AS is ONLY USED DURING THE SUMMER. ......... 328
THE DIGEST OR PANDECTS.
(Continued.)
BOOK XXXIX.
TITLE III.
CONCERNING THE RIGHT TO COMPEL A NEIGHBOR TO TAKE CAKE OF WATER AND RAIN-WATER.
1. Ulpianus, On the Edict, Book XLIII.
Where rain-water causes damage to anyone, he will be entitled to an action to compel his neighbor to divert it from his premises. By rainwater we mean that which falls from the heavens, and increases after a heavy rain, whether it does the damage of itself, or, as Tubero says, is mixed with other water.
(1) This action can be brought before the damage has been sustained, and after some building has been constructed, on account of which damage is apprehended. It will lie whenever water will probably result in injury through human agency, that is to say, whenever anyone does something which will cause the water to flow in some other way than it is naturally accustomed to do, that is, if by allowing it to run, he causes the amount to become greater, or the current to become more rapid, or stronger, or if, by confining it, he causes it to overflow. If, however, the water, by its nature, should cause damage, it cannot give rise to an action.
(2) Neratius says a certain man constructed a levee to exclude the water which ordinarily flowed from a marsh upon the land; if the marsh should be filled with rain-water, and it, having been turned aside by the levee which he constructed, should damage the field of his neighbor, he can be compelled to remove it by an action brought for that purpose.
(3) Quintus Mucius says that this action will not lie with reference to work performed with a plow, for the purpose of cultivating land. Trebatius, moreover, only allows this exception where the work done with the plow is only performed for the purpose of obtaining a better crop of grain, and not merely for the benefit of the land.
(4) Where ditches are dug for the purpose of draining fields, Mucius says that this is done for the sake of cultivation, but it must not cause the water to flow in a single stream; for a man has a right to improve his land, but he must not do so by damaging that of his neighbor.1
(5) Moreover, if anyone can plow and sow his fields without making furrows for drainage, he will be liable if he makes any, even though
1 "Nemo ex alterius detrimento fieri debet locupletari."—ED.
he may be held to have done so for the purpose of cultivating his land. But if he could not sow his seed without opening furrows to carry off the water, he will not be liable. Ofilius, however, says that a person has a right to dig ditches for the purpose of cultivating his land, provided they all follow the same course.
(6) It is said by the authors on Servius, that if anyone has planted willows, and the flow of the water is arrested by them, and damages a neighbor, the latter can bring an action on this account.
(7) Labeo, also, says that this action does not apply to anything which is done for the purpose of gathering grain and fruit, and it makes no difference what kind of crops are to be gathered by means of the work performed.
(8) Both Sabinus and Cassius hold that this action is applicable to any work performed by the hand of man, unless it is done for the purpose of cultivating the soil.
(9) They also say that a party will be liable to this action if he makes any water-course on his land which the Greeks call €AiXes.
(10) The same authorities say that an action to control rain-water will not lie where the water flows naturally, but if by means of any work it is turned back, or falls on land below, suit can be brought.
(11) They also say that everyone has the right to retain rainwater on his own premises, or to use for his own benefit any which flows from those of his neighbor, provided he performs no work on the land of another; for no one is forbidden to profit by anything so long as he does not injure some one else, nor can anyone be held liable on this ground.
(12) In conclusion, Marcellus says that when anyone, while excavating upon his own land, diverts a vein of water belonging to his neighbor, no action can be brought against him, not even one on the ground of malice. And it is evident that he should not have such a right of action, where his neighbor did not intend to injure him, but did the work for the purpose of improving his own property.
(13) It must be remembered that this action can be brought by one owning land situated above against one owning land situated below, to prevent water which flows naturally from running over his fields as the result of some work which has been constructed, and by the owner of the land below to prevent him from diverting the water from its natural course.
(14) It should also be noted that this action will never lie where the nature of the ground causes the damage. For (properly speaking) , it is not the water, but the nature of the ground which causes it.
(15) In short, I think that this action will only lie where the rainwater itself causes the damage, or where, having been allowed to collect it is the source of injury, and this occurs not naturally, but through human agency; unless the work is done for the purpose of cultivating the soil.
(16) Water is said to be increased by the rain, when it changes its color, or the quantity is greatly augmented.
(17) It must also be remembered that this action will not lie except where the water causes'some injury to land, for it cannot be brought if it injures a building, or a house in a town; as, in the latter instance, suit can be brought on the ground that the neighbor has not the right to let the water drip or flow upon our premises. Therefore, Labeo and Cascellius say that an action of this kind is a special one, and that which has reference to canals and the dripping of water is one of general application, and can be brought everywhere. Hence, when water injures land, the party who is responsible can be sued to compel him to retain the water in its proper channel.
(18) We do not inquire from what source the water is derived; for if it has its origin in a public or a sacred place, and runs through the land of a neighbor, and he, by some means, diverts it upon my premises, Labeo says he will be liable to this action.
(19) Cassius also says that if water from a building in a city injures either land or a building in the country, an action must be brought under the law having reference to canals and the dripping of water.
(20) Moreover, I find it stated by Labeo that if water flowing from my field injures land situated between two buildings, an action cannot be brought against me to compel me to take care of the rainwater.
This action, however, can be brought where the water flows from a place of this kind upon my land and damages it.
(21) Moreover, as where any work that is performed in such a way that rain-water causes me damage, this action can be brought; so, on the other hand, the question arises whether an action of this kind will lie if my neighbor should do some work to prevent the water from running over my land, and which is a benefit to him. Ofilius and Labeo hold that it cannot be brought, even if it was to my interest that I should have access to the water, because it will only lie where rain-water causes damage, and not where it is a benefit.
(22) If a neighbor should remove the structure which he had erected, and, after its removal, the water following its natural course should injure the field belonging to the owner below, Labeo thinks that this action cannot be brought; since it is a perpetual servitude enjoyed by land situated below to receive water pursuing its natural course. Labeo, however, acknowledges that it is evident if, on account of the work having been removed, the water should flow more rapidly, or collect in its channel, an action of this description can be brought.
(23) Finally, he says that certain laws have been enacted with reference to the different conditions of land; so that if on certain tracts there are large accumulations of water, I may be permitted to build levees or excavate ditches on your ground, for my own protection.
Where, however, there is no condition mentioned with reference to land, the natural condition of the same must be preserved, and the lower tract will always be subject to the upper one; and this inconvenience must be naturally endured by the one situated below, for
the benefit of the upper tract, and should be compensated for by other advantages; for, as all the fertile soil of the upper tract is carried upon the lower, so, also, the inconvenience of the water flowing upon it must be tolerated. But if no special law relating to the tract of land in question can be found, ancient custom is held to take the place of law.1 For, indeed, with reference to servitudes, we follow this rule that where a servitude is not found to have been imposed, and one has been enjoyed for a long time without force, or by a precarious title, or clandestinely, the servitude is held to have been created by a long-established custom, or by law. Therefore, we cannot compel a neighbor to build levees, but we ourselves can build them on his land, and to obtain the enjoyment of this species of servitude we are entitled to either a praetorian action or an interdict.
2. Paulus, On the Edict, Book XLIX.
In short, there are three causes by which a lower tract of land may be subject to an upper one; namely, a law, the nature of the ground, and ancient custom, which is always regarded as law, that is to say, for the purpose of terminating disputes.
(1) The following case was suggested by Labeo. An old ditch was in existence for the purpose of draining certain fields, and no one remembered when it was made. The neighbor below did not clean it out, and, for this reason, the water, being obstructed in its course, injured our land. Hence Labeo says that suit can be brought against the person owning the land below, to compel him to clean out the ditch himself, or to permit you to restore it to its former condition.
(2) Again, if the ditch is on the boundary line, and the neighbor does not permit the part which is on your side to be cleaned out, Labeo says that you can bring this action against him.
(3) Cassius states that if any works are constructed by public authority for the purpose of conducting water, this action will not lie; and that matters will be in the same condition as where ancient usage transcends the memory of man.
(4) It is, however, stated by Ateius that the neighbor above can be compelled to clean out a ditch by which the water flows upon the land of the neighbor below, whether the memory of its construction survives or not. I myself think that this opinion should be approved.
(5) Varus says the force of the current has broken the levee on the land of a neighbor, and the result is that the rain-water causes me damage. He holds that if the levee was a natural one, that I cannot bring this action against him to compel him to repair the levee, or to permit it to be repaired. He also holds that if the levee was built by human agency, and it is remembered when this was done, the neighbor will be liable to this action.
Labeo, also, says that if the levee was built by the hand of man, the action can be brought to compel it to be restored, even if it should notbe remembered when it was constructed; for no one can be com-
1 "Consuetudo et com/munis assuetudo vincit legem non scriptam, si sit specialis." •—ED.
pelled by this proceeding to do something to benefit his neighbor, but only to prevent him from injuring him, or to force him to permit us to do what can be done by law. Although the action to compel him to take care of the rain-water cannot be brought, still I am of the opinion that I will be entitled to a praetorian action or an interdict against my neighbor, if I desire the levee to be rebuilt upon his land, which, if done, will be of advantage to me and at the same time will not cause him any injury. This course is suggested by equity, although we have no law which authorizes it.
(6) It is said by Namusa that, if water flowing through its regular channel is obstructed by a deposit of soil, and on account of being arrested injures land situated above, an action can be brought against the owner of the land below, to compel him to permit the channel to be cleaned out; for this action is not only available in the case of work performed by human agency, but also has reference to all obstacles which do not owe their existence to our will.
Labeo does not agree with Namusa, for he says that the nature of land can be changed by itself; and therefore where the nature of a field is changed in this manner, both parties should endure it with equanimity, whether their condition is improved, or made worse. Hence, if the nature of the ground is changed by an earthquake, or by the force of a tempest, no one can be compelled to permit the land to be restored to its former condition.
We also adopt the principles of equity in a case of this kind.
(7) Labeo adds that if the accumulation of water excavates a hole on your land, an action to divert the water cannot be brought against you by your neighbor. It is, however, clear that if a channel has been dug in accordance with law, or the right to it has been established by custom beyond the memory of man, an action of this kind can be brought against you to compel you to make repairs.
(8) Labeo also says that when inquiry is made to ascertain whether the work was constructed within the memory of man, the exact date and the Consulate should not be required, but it will be sufficient if anyone knows when the work was constructed, that is to say, if there is no doubt on the subject; nor is it necessary that the persons who remembered it should be living, but only that others should have heard those who remembered its construction state the fact.
(9) Labeo also says that if a neighbor turns aside a torrent to prevent the water from reaching him and, by doing so, his neighbor is injured, an action cannot be brought against him for diverting the water from its course; since, in order to divert it, it must be prevented from flowing upon his premises.
This opinion is perfectly true, provided he did'not act with the intention of injuring you, but to prevent injury to himself.
(10) I also think that the opinion of Ofilius is correct, namely, if your land owes that of your neighbor a servitude, on account of which it receives its water, this action will not lie unless the damage sustained is excessive. The result of this is, and it coincides with the opinion of Labeo, that if anyone should transfer to his neighbor the
right to allow water to flow upon his land, he cannot bring an action of this kind against him.
3. Ulpianus, On the Edict, Book LIII.
It is related by Trebatius that a certain person, on whose land there was a spring, established the business of a fuller near the said spring, and permitted the water, after being used in this way, to flow upon the land of his neighbor. He says that he would not be liable to an action of this kind brought by his neighbor, but many authorities hold that if he confines the water to a channel or throws any filth into it, he can be prevented from doing so.
(1) Trebatius also thinks that where anyone is damaged by a flow of warm water, he can bring a suit of this kind against his neighbor, but this is not true, for warm water is not rain-water.
(2) If a neighbor who was accustomed to irrigate a field during a certain season of the year should make a meadow of it, and by constant irrigation should cause his neighbor damage, Ofilius says that he will not be liable to an action on the ground of threatened injury, or for the diversion of rain-water, unless he has levelled the ground so that, in this way, the water will be carried more rapidly upon the land of his neighbor.
(3) It has been established, and we adopt the rule, that a person is not liable to this action, except when he does the work, which causes the damage, upon his own land. Therefore, if anyone performs any work upon public land, this action will not lie; and he who did not provide against threatened injury by obtaining the execution of a bond has no one to blame but himself. If, however, the work is performed upon private premises, as well as upon public land, Labeo says that an action of this kind can be brought for everything.
(4) An usufructuary cannot bring this action, nor can it be brought against him.
4. The Same, On the Edict, Book LIII.
Moreover, although this action can only be brought against the owner of the work, still Labeo says that if anyone builds a sepulchre, and the water from it injures a neighbor, it is preferable to adopt the rule that the owner will be liable to this action, even if he had ceased to be such because of the ground having become religious, for he was the owner at the time when the structure was erected. If he should be compelled by order of court to restore the work to its former condition, an action for the violation of the sepulchre will not lie.
(1) Julianus also said that, if after proceedings had been instituted to compel him to take care of the rain-water, and he against whom suit had been brought for damages previously sustained, and for the restoration of the property to its original condition, should alienate the land, the judge must render the same decision which he would have done if no alienation had taken place; for, after the land had been alienated, the case remains the same, and the account of the damage should include any which had been suffered after the alienation took place.
(2) Julianus also says that this action cannot be brought against anyone but the owner of the property, and therefore, if a tenant should erect any structure without the owner of the land being aware of it, the latter is not compelled to do anything except to suffer the structure to be destroyed. The tenant, however, can, by the interdict Quod vi OMt clam, be compelled to restore the property to its former condition, and to pay any damages which may have been sustained. If, however, the owner should wish to obtain security against threatened injury from the owner of the land, it would be perfectly just for it to be given him.
(3) If, however, I did not construct such a work, but my agent did, and my neighbor is injured by the water, the action can be brought against me, just as it can be against the tenant. The agent, however, can, according to the opinion of Julianus, have proceedings instituted against him under the interdict Quod vi aut clam, even after the property has been restored to its former condition.
5. Paulus, On the Edict, Book XLIX.
If a tenant, without the knowledge of the owner, should construct a work by means of which the water injures a neighbor, Labeo gives it as his opinion that the tenant will be liable under the interdict Quod vi aut clam, and that the action relating to the care of rain-water can be brought against the owner of the land, because he alone can restore the property to its original condition; but, in this instance, he can only be compelled to allow it to be restored where a bond of indemnity providing against threatened injury has been obtained by a stipulation.
If he should incur any expense in restoring the property to its former condition, he can recover it from the tenant in an action on lease, unless someone should decide that he cannot do so, because it was not necessary for him to restore it. If, however, he acted by the direction of the owner of the land, the latter will also be liable to the interdict.
6. Ulpianus, On the Edict, Book LIII.
If the neighbor next above the one adjoining me constructs a work by which the water, running over the land of my nearest neighbor, causes me damage, Sabinus says that I can bring an action either against the one immediately above me, or against the one above him, if the former fails to do so. This opinion is correct.
(1) If the water flowing from land owned by several persons causes damage, or if it injures land belonging to several persons, it has been decided, and we adopt the same rule, that where it belongs to several owners, suit can be brought by each one in accordance with his interest, and judgment can be rendered proportionally; or where the action is brought against several persons, judgment shall be rendered against them individually in proportion to their respective shares.
(2) Hence the question arises, if water from your land should cause damage to a field held in common by yourself and me, whether this action can be brought. I think that it can, in such a way, however, that only a portion of the damage shall be paid by the party who loses the case.
(3) On the other hand, where the water from a field held by joint-owners damages land owned by one of them, an action of this kind can be brought, but the party who brings it can only obtain damages in proportion to his share.
(4) If anyone, before instituting proceedings, should transfer the ownership of the land to another, he will cease to have a right to bring this action, and it will pass to the person to whom the field belongs, for the action has reference to injury which may, in the future, be sustained the owner; although the work may have been done when the land belonged to the former proprietor.
(5) It must be remembered that this action is not a real, but a personal one.
(6) It is the duty of the judge, in a case of this kind, where any work has been done by a neighbor, to order him to restore the property to its former condition, and to pay all damages sustained after issue has been joined. If, however, any damage was caused before issue was joined, he should only compel him to restore the property to its original condition, and not to pay any damages.
(7) Celsus says, that if I build anything by which rain-water may cause you any damage, I can be compelled to remove it at my own expense. If anyone else, over whom I have no authority, should do this, it will be sufficient if I permit you to remove the structure. But if my slave, or anyone whose heir I am, should do the work, I will be obliged to surrender the slave by way of reparation; but if the person whose heir I am, did it, it is just the same as if I myself had erected the building.
(8) The judge must estimate the damage in accordance with the truth of the matter; that is to say, according to the amount of damage which appears to have been sustained.
7. Paulus, On the Edict, Book XVIII.
He against whom suit is brought to compel him to take care of rain-water, and who has performed the work*rendering him liable to such an action, will be compelled to join issue in the case, even if he is ready to abandon it, since he is sued personally in his own name to compel him to remove the structure.
(1) The case is different with a bona fide purchaser, for he can only be compelled to permit the destruction of the work; and therefore if he abandons the property he should be heard, for he offers to do more than is required of him.
8. Ulpianus, On the Edict, Book LIII.
In granting the right to conduct water, the consent, not only of those on whose ground the source of the water is situated, but also of those who have the use of the same, must be obtained; that is to
say, the consent of the persons to whom the servitude of said water is due. This is not unreasonable, for their right is diminished, and hence their consent is required. Generally speaking, it is held that the consent of all those who have any right to the water itself, or any interest in the land through which it flows, or on which its source is situated, must be obtained.
9. Paulus, On the Edict, Book XLIX.
In the case of the conditional sale of land, the consent of both the purchaser and the vendor must be obtained; so that it may be certain that the transfer of-the right to the water is made with the permission of the owner, whether the property remains in the hands of the purchaser, or is returned to the vendor.
(1) Therefore, consent is required to prevent the owner from being injured without his knowledge, for he who has once given his consent cannot be considered to have sustained any injury.1
(2) In the transfer of the right to use water, the consent not only of him to whom the right to the water belongs, but also that of the owner of the land is required, even though the latter cannot at present make use of the water, because the right to do so may afterwards revert to him absolutely.
10. Ulpianus, On the Edict, Book LIII.
When there are several owners of the same land in which a stream of water has its source, there is no doubt that the consent of all of them must be obtained; for it would be unjust if the consent of one who is the owner of, perhaps, a very small share, should prejudice the rights of the other joint-owners.
(1) Let us see whether subsequent consent can be obtained. It is established that it makes no difference whether the consent precedes or follows the conducting of the water, because the Praetor must also take into consideration consent afterwards given.
(2) Labeo says that, if a river is navigable, the Praetor must not grant permission for enough water to be taken from it to render it less navigable. The same rule applies where another river is rendered navigable by means of the water of the one in question.
11. Paulus, On the Edict, Book XLIX.
An aqueduct cannot legally be constructed so as to interfere with a right of way. Nor can a person who is entitled to a right of way legally build a bridge for the purpose of enjoying his right. But if, for this purpose, he should conduct the water by means of a covered, and not an open canal, the water will become deteriorated, because it remains under ground, and the stream will dry up.
(1) Cassius says that if water flowing from a tract of land owned in common, or upon one owned in common, causes any damage, one of the joint-owners can bring an action against one of the proprietors
1 "Volenti non fit injuria."—ED.
of the other tract, or can sue each of them separately; or, on the other hand, each of them can sue one of their number, or they can all individually sue one another. If one of them brings suit, and the damage is estimated and paid in court, the right of action of the others is extinguished. Likewise, where one of them is sued and makes payment, the others will be released from liability, and whatever has been paid by him for the benefit of his fellow joint-owners can be recovered by an action in partition. The action, however, cannot be brought by the person who did the work against his fellow joint-owners, as he who was responsible for it must make restitution for all damages sustained.
(2) Proculus says it is stated by Ferox that if an action of this kind is brought against one of several joint-owners, who did not himself do the work, he must be reimbursed for his expenses, because he is entitled to an action in partition. He, however, holds that this joint-owner can only be compelled to allow the land to be restored to its former condition, because it was the fault of the plaintiff that he did not sue the person by whom the work had been performed, and it is unjust for him who did not perform it to be compelled to restore the land to its former condition, as he has a right to bring an action in partition. But what course must be pursued if his fellow joint-owner should not be solvent?
(3) Julianus says that he is in doubt as to what course should be pursued by the judge, where the structure to which the injury is attributed belongs to two joint-owners, and the land damaged by the water belongs to one alone. If the land on which the work was done belongs to several persons, and suit is brought against one of them, shall judgment be rendered against all on account of any damage sustained after issue has been joined, and restoration of the property to its original condition has been refused; just as in the case of a slave owned in common, where a noxal action is brought against one of his owners, and judgment is rendered against both of them, since whatever one of them paid he can recover from his fellow joint-owner?
Or shall we say that the owner who is sued on account of his share, and has judgment rendered against him for damages sustained and failure to restore the land to its original condition, as is done in an action for threatened injury where several persons own the land which it is feared will be damaged, and only one of them is sued, even though the work from which damage is apprehended is indivisible, and neither the building itself nor the ground can partially cause damage, the owner against whom the action is brought can, nevertheless, have judgment rendered against him in proportion to his share of the property? Julianus thinks that the same course should be pursued in an action to compel anyone to take care of rain-water, as is done to provide against threatened injury; because, in both instances, proceedings are instituted, not with reference to damage which has already been sustained, but on account of that which is apprehended.
(4) If the land injured by rain-water belongs to several persons, each one of them can bring suit against his neighbor; but he can not, after issue has been joined, obtain damages on account of injury sustained for an amount greater than his share. Moreover, if the land is not restored to its former condition, judgment must not be rendered against each one of the joint-owners for a larger sum than the value of his interest in the property.
(5) Ofilius says that one joint-owner can bring an action against another, where water is conveyed from the private premises of one of them upon land belonging to both in common.
(6) Trebatius thinks that if suit is brought on account of work due to human agency, the land must by all means be restored to its1 original condition by the party against whom the suit was brought. If, however, the land should be injured by the force of the water, or the ditches should be filled with gravel, or soil, then the owner of the land will only be compelled to permit this to be removed.
12. The Same, On Sabinus, Book XVI.
The purchaser, as well as the other successors (unless the sale is a fictitious one), must either restore the property to its original condition, if they are willing to do so, or must permit this to be done; for it is clear that the plaintiff will be prejudiced by delay. The joint-owner of the person who performed the work is in the same position if he himself had nothing to do with it.
The same rule also applies where land is acquired by donation or devise.
13. Gaius, On the Edict of the Urban Prsetor; Title, The Action Having Reference to Taking Care of Rain-water.
The vendor, or the donor, however, will be liable for damages sustained as well as for expenses incurred by the plaintiff through the interdict Quod vi aut clam.
14. Paulus, On the Edict, Book XLIX.
Ateius says that if anyone, after having constructed a work which causes damage, should sell .the land to a more powerful person in order to cease to be the owner of the same, proceedings may be instituted against him under the interdict Quod vi aut clam, and after the expiration of a year, an action based on fraud can be granted against him. •
(1) When an action is brought to compel another to take care of rain-water, the question arises whether or not the injury results from some act already performed; and hence, if through some defect in the ground a part of the soil has settled, even though on this account damage may be caused by rain-water to a neighbor below, the action will not lie. The same rule will also apply where anything attributable to human agency is deposited upon the land.
(2) In this action, as well as in that relating to threatened injury, anticipated damage is taken into consideration; while in almost all others payment is made for damages already sustained.
(3) With reference to damage caused before the action was brought, proceedings should be instituted under the interdict Quod vi aut cla/m; and with regard to that which may occur after the decision has been rendered, security against threatened injury must be furnished, or the property must be placed in such a condition that there will be no longer any danger of injury.
(4) A new action must be brought where a work has been constructed after issue has been joined in the case.
15. The Same, On Sabinus, Book XVI.
Sometimes the work which has been constructed after issue has been joined is removed, where that which was constructed before it cannot be removed without destroying the other.
16. Pomponius, On Sabinus, Book XX.
After the sale and transfer of land which has been injured, before judgment has been rendered in an action of this kind, the vendor can still obtain damages under the judgment; not because he has sustained any injury, but because the property has been damaged, and he must pay anything which he may recover to the purchaser.
If, however, the party who was sued should sell the land before any damage was done, suit must either immediately be brought against the purchaser, or within a year against the person who sold the land, if he did so for the purpose of avoiding a judgment.
17. Paulus, On Plautius, Book XV.
If the servitude to draw water at night should be granted me, and afterwards, by another transfer, I should also obtain the privilege of drawing water by day, and, during the time prescribed by law, I should only make use of my privilege at night, I will lose the servitude to draw water during the day, for the reason that in this instance there are two servitudes derived from different causes.
(1) It has been very properly decided that water cannot be conducted by means of stone aqueducts, unless this was included in the grant of the servitude, for it is not customary for a person who has water to conduct it through a channel made of stone. However, what is customary in cases of this kind can be done, as, for instance, water can be conducted through pipes, even if nothing on this point was stated in the grant of the servitude, provided always that no damage is caused to the owner of the land by doing so.
(2) It has been decided that the servitude of drawing water can be granted where there is a public highway between two tracts of land; and this is true. This is not only the case where there is a public highway between the two tracts, but also where they are divided by a public stream, in case the servitude of driving or of passage can be established, notwithstanding that the public stream divides the two tracts of land, that is to say, where the width of the stream does not prevent it from being crossed.
(3) The rule is the same where my neighbor owes a servitude to my land, which does not join his but joins another belonging to me,
as I can bring an action against him, and maintain my right to pass through his premises to my land beyond, although I may not have a servitude attaching to my intermediate tract; just as where a public road, or river which can be crossed by fording, lies between two separate tracts of land.
None of these servitudes, however, can be imposed where the intervening tract is sacred, religious, or holy, and cannot be used.
(4) If there is an intermediate tract of land which belongs to a third party between your premises and mine, I can impose the servitude for drawing water upon your land if the owner of the intermediate tract grants me the right of way through his premises; just as when I wish to obtain the perpetual right to take water from a public stream which forms the boundary of your land you can grant me a right of way to the stream.
18. Javolenus, On Cassius, Book X.
If the work which causes damage by rain-water is erected in a public place, the action cannot be brought; but where the two tracts are separated by a public place, it can be. The reason for this is that the owner alone is liable under this action.
(1) Water cannot be conducted across a public highway without the consent of the Emperor.
19. Pomponius, On Quintus Mucius, Book XIV.
Labeo says that if I construct any work and my neighbor does not object, and in consequence he suffers damage from rain-water, I will not be liable to an action of this kind.
20. The Same, On Sabinus, Book XXXIV.
This, however, only applies where he is not deceived through mistake or ignorance, for anyone who makes a mistake does not give consent.
21. The Same, On Quintus Mucius, Book XXXII.
If water which has its source on your land rushes with great force upon mine, and you intercept its course, so that it ceases to flow upon my premises, you will not be considered to have acted with violence, if I was not entitled to any servitude for the use of the water; nor will you be liable to an interdict Quod vi aut clam.
22. The Same, Various Passages, Book X.
If the usufruct of land is bequeathed, the action to compel care to be taken of the rain-water will lie for, as well as against the heir of him to whom the property belonged. If the usufructuary should suffer any inconvenience on account of some work which has been performed, he can sometimes avail himself of the interdict Quod vi aut clam.
If the action cannot be brought by the usufructuary, the question arises whether equitable action should be granted him, as the owner,
to compel the water to be taken care of; or whether he can also maintain that he has the right to enjoy the property. The better opinion, however, is that an equitable action to compel care to be taken of the rain-water should be granted.
(1) He who constructs a new work will not be considered to have restored the property to its former condition, unless he intercepts the course of the water of which complaint is made.
(2) But even if the usufructuary should construct the work by which the rain-water may cause damage to anyone, the legal action against the owner of the property will lie; but the question arises whether an equitable action to compel the water to be taken care of should not be granted against the usufructuary. The better opinion is that it should be granted.
23. Paulus, On Sabinus, Book XVI.
Any work which is performed by order of the Emperor, or the Senate, or by those persons who have first rendered the land capable of cultivation, is not included in this action.
(1) This action is also available with reference to lands owned and leased by the State.
(2) Levees made upon private lands along the banks of streams are also the object of this action, even though they cause damage on the other side of the stream, provided they have been constructed within the memory of man, and there was no right to make them.
24. Alfenus, Epitomes of the Digest by Paulus, Book IV.
A man who owned a field situated above that of another plowed it in such a way that the water was carried by the furrows and ridges upon the land of his neighbor below. The question arose whether he could be compelled by an action requiring him to take care of the rainwater, to plow in a different direction, so that the furrows would not be turned toward the premises of the neighbor. The answer was that he could not do anything to interfere with his neighbor plowing in any way that the latter desired.
(1) If, however, anyone plows across a water-course, and by means of the furrows, the water should be diverted upon the land of a neighbor, in such a way as to obstruct the water-course, he can be compelled to open it by means of this action.
(2) But if he should dig ditches by which the rain-water could injure a neighbor, he can be compelled by the court to fill them up, if it appears that the rain-water might afterwards cause damage, and judgment could be rendered against him, unless he did so; even though, before a decision was rendered, the water had not yet begun to flow through the ditches.
(3) When lakes either rise or fall, the neighbors have no right to do anything to affect either the increase or the diminution of the water.
25. Julianus, On Minicius, Book V.
Where a right of way is imposed upon the land of anyone, the person entitled to it can bring an action to compel care to be taken of rain-water for the benefit of the land, because by damaging the right of way the land also will be injured.
26. Scssvola, Opinions, Book IV.
Scaevola gave it as his opinion that those who have the right to render judicial decisions are accustomed to authorize the continuance of aqueducts, whose use has been confirmed by time, although the legal right by which they exist cannot be established.
TITLE IV.
CONCERNING FARMERS OP THE PUBLIC REVENUE, LEASES OP PUBLIC LANDS, AND FORFEITURES.
1. Ulpianus, On the Edict, Book LV.
The Praetor says: "If a farmer of the public revenue, or anyone belonging to the family of a farmer of the public revenue, takes anything by force in his name, and it is not restored to the owner, I will grant an action for double its value, and if suit is brought after a year has elapsed, I will grant one for its simple value. Moreover, I will grant an action, if any damage has been sustained, or any theft is said to have been committed. If the parties concerned in the matter are not produced, I will grant an action against the masters, without the privilege of surrendering their slaves by way of reparation."
(1) This Title has reference to farmers of the public revenue. Those are farmers of the revenue who handle the public funds, and they bear this name whether they pay a certain percentage to the Treasury, or collect tribute. Those, also, who lease property from the Treasury are properly called farmers of the revenue.
(2) Someone may ask, of what benefit is the Edict in question, just as if the Praetor had not elsewhere made provision for thefts, injuries, and robbery wifh violence. The Praetor, however, thought that, under the circumstances, it was best to issue a special Edict against farmers of the revenue.
(3) The penalty inflicted by this Edict is, in some respects, less severe, as damages are given for double the amount; whereas in the case of robbery with violence, they are quadrupled, as they also are in the case of manifest theft.
(4) Moreover, the farmer of the revenue is granted the power to restore property taken by violence, and if he does so, he will be released from all responsibility, and will not be liable to a penal action under this Section of the Edict. Hence, the question arises, if anyone desires to bring an action against a farmer of the revenue, not under this Edict, but under the general law relating to taking property by violence, unlawful damage, or theft, can he do so? It is established
that he can, and Pomponius also holds the same opinion, for it would be absurd for the legal position of a farmer of the public revenue to be considered better than that of other persons.
(5) The term "family," mentioned in the Edict, not only refers to the slaves of farmers of the revenue, but also to all those included in their households. Therefore, whether their own children or the slaves of others are employed in the collection of taxes, they will be included in this Edict. Hence, if the slave of a farmer of the revenue commits robbery with violence, but is not among the number of those who are employed in the collection of taxes, this Edict will not apply.
(6) What the Praetor says in the last place, namely, "If they are not produced, I will grant an action against their masters, without the privilege of surrendering them by way of reparation," is a special provision of this Edict, because if the slaves are not produced, an action will be granted without the privilege of surrendering them by way of reparation, whether the masters have them in their power or not; and whether they can produce them or not.
2. Gaius, On the Provincial Edict, Book XXI.
A master shall not be allowed to defend his absent slave.
3. Ulpianus, On the Edict, Book LV.
If the slave should not be produced by the master, the noxal action should be brought against him. Therefore, what makes the condition of the farmers of the revenue so trying is that they must select good slaves for this employment.
(1) Where the Praetor says, "Against the masters," we must understand this to mean against the associates of the collectors of taxes, although they may not be their masters.
(2) The plaintiff must mention beforehand the person or persons whom he may desire to be produced, so that, if this is not done, he will have a right of action. Even if he should say, "Produce all the parties, in order that I may recognize the one who is guilty," I think that he ought to be heard.
(3) Where several slaves have committed the theft or the damage, the rule ought to be observed that if the farmer of the revenue pays as large a sum as if a freeman had perpetrated the offence, he should be released from liability.
4. Paulus, On the Edict, Book LIL
If a farmer of the revenue, who removed the property by force should die, Labeo says that the action should be granted against his heir who profited by the act.
(1) The Divine Hadrian, in a Rescript addressed to the Governors of Gaul, stated with reference to property which the Governors were accustomed to have transported for their use, that when anyone sends for the purpose of making purchases for the benefit of those who command armies or govern provinces, or for that of their agents, he shall sign an order with his own hand, and send the same to the farmer of
the revenue, so that if the latter should transfer anything more than he had been ordered to do, he must make it good.
(2) In the collection of all revenues, the custom of the neighborhood is usually considered; and this is provided by the Imperial Constitutions.
5. Gaius, On the Edict of the Urban Praetor, Title: Farmers of the Revenue.
It is provided by this Edict that if the property should be restored before issue has been joined, the right of action will be extinguished; still, after this, suit for the penalty can be brought. If, however, Ihe farmer of the revenue is ready to make restitution even after issue has been joined, he should be released from liability.
(1) We may ask whether the payment of double damages provided by the Edict is entirely a penalty, and suit can afterwards be brought for the recovery of the property; or whether the recovery of the property is included in the double damages, so that the penalty is only simple. The weight of opinion is that the property is included in the double damages.
6. Modestinus, On Penalties, Book II.
Where several farmers of the revenue have unlawfully exacted something, the action to recover double damages is not multiplied, but all of them must pay their shares, and what cannot be paid by one shall be collected from another, as the Divine Severus and Antoninus stated in a Rescript; for they held that there was a great difference between persons who perpetrated a crime, and those who participated in the commission of a fraud.
7. Papirius Justus, On Constitutions, Book II.
The Emperors Antoninus and Verus stated in a Rescript that in the case of the taxes on public lands, the lands themselves, and not the persons holding them, should be made the subject of the action, and therefore that the possessors must pay any tax which was due, even for time which had passed before they obtained possession; and that, in a case of this kind, if they were not aware that any tax was due, they would be entitled to an action.
(1) It was also stated in the Rescript that a ward would be released from liability to the penalty of confiscation, if he paid the tax within thirty days.
8. Papinianus, Opinions, Book XIII.
The offence of evading taxation by fraud is transmitted to the heir of the person who committed the fraud, to the extent of causing confiscation of the property.
(1) Where one of several heirs for the purpose of evading the tax removes any of the property held in common, the others will not be deprived of their shares.
9. Paulus, Sentences, Book V.
If the heat of competition should induce a bidder desiring to obtain the farming of public revenues to raise his offer above the ordinary amount, it must be accepted, if he who makes the highest bid is ready to furnish sufficient security.
(1) No one can be compelled, against his consent, to lease the collection of taxes; and therefore when the time of the lease had expired, a new contract must be made.
(2) Farmers of the revenue, who have not made a settlement for the taxes collected by them, and who wish to enter into a new contract, shall not be permitted to do so before paying what is due under the former one.
(3) The debtors of the Treasury, as well as those of a city, are forbidden to contract to collect taxes, in order that their responsibilities may not be increased from another cause, unless they offer sureties who are able to satisfy their obligations.
(4) Where partners in collecting the revenue administer their office separately, one of them can legally petition to have the share of another who is less fitted for the place transferred to himself.
(5) Where anything has been unlawfully exacted, either from the public, or from private individuals, double the amount shall be paid to those who suffered the injury; anything, however, which has been extorted by violence shall be refunded together with a triple penalty, and, in addition to this, they will be liable to extraordinary prosecution; for, in the first instance, the right of private individuals, and in the second, the interest of the public demands it.
(6) Taxes on property on which no tax has ever been paid cannot be collected. If the indulgence of the farmer of the revenue should release property from taxation, on which it has been customary to pay, another is not forbidden to make the collection.
(7) It has been established that property for the use of the army is not liable to taxation.
(8) The Treasury is exempt from the payment of any tax. Merchants, however, who are accustomed to deal in goods purchased with funds belonging to the Treasury cannot enjoy immunity from the payment of taxes.
10. Hermogenianus, Epitomes, Book V.
Neither the Governors of provinces, the agents of municipalities, nor assemblies of the people are permitted to impose taxes, or to modify, add to, or diminish those already imposed, without the authority of the Emperor.
(1) Where farmers of the revenue have not paid what they owe to the Treasury, they cannot be discharged, even if the terms of their leases have expired; but interest can be collected from them when they are in default.
11. Paulus, Opinions, Book V.
It is not permitted, under penalty of death, to sell to enemies flints used for striking fire, iron, wheat, or salt.
(1) Public lands, which are held under a perpetual lease, cannot be taken from the lessee by an agent of the government without the authority of the Emperor.
(2) If either the owner of a ship, or any of the passengers, should unlawfully bring any merchandise on board, the ship as well as the merchandise can be confiscated by the Treasury. If anything of this kind is done in the absence of the owner, by the master, the helmsman, the pilot, or any sailor, he shall be put to death, and the merchandise shall be confiscated, but the vessel must be restored to the owner.
(3) Prosecution for dealing in contraband merchandise also extends to the heir of the guilty party. ;
(4) The owner of property which has been confiscated is not forbidden to purchase the same either himself, or through others whom' he has directed to do so. :
(5) Persons who have profited greatly from the farming of the public revenues are compelled to take them on the same terms on which they formerly held them, if the same amount cannot be obtained from others.
12. Ulpianus, On the Edict, Book XXXVIII. ;
There is no one who is not aware of the audacity and insolence of farmers of the revenue, and therefore the Prastor promulgated this Edict for the purpose of controlling them.
(1) "If anyone belonging to the household of a farmer of the revenue is accused of having committed theft, or has caused unlawful injury, and the property in question is not produced, I shall grant an action against the master, without the privilege of surrendering the slave by way of reparation."
(2) It must be noted that, in this instance, the slaves of the farmer of the revenue are meant by the term "household." If, however, a slave belonging to another should be in the service of the farmer of the revenue, in good faith, he will also be included.
Perhaps this would also be the case where he served him in bad faith, for wandering and fugitive slaves are often employed in work of this kind by persons who know who they are. Hence, if a freeman is serving in good faith as a slave, this Edict will also apply to' him.
(3) Those also are called farmers of the revenue who lease the income from public lands.
13. Gaius, On the Provincial Edict, Book XIII.
They also are included under the term farmers of the revenue who lease the income from salt pits, quarries, and mines belonging to the State.
(1) This Edict also applies to one who leases from the govern-1 ment the collection of taxes from a municipality.
(2) He who has a number of seditious slaves employed will be liable for the acts of one of them, if he should sell or manumit him, or even if the slave should take to flight.
(3) But what must be done if the slave should die? Let us see whether the farmer of the revenue will be responsible, as for his own act. I think that he should be released from liability, as he had not the power of producing the slave, and was not guilty of fraud.
(4) We grant this action as perpetual, and it will pass to the heir and other successors.
14. Ulpianus, Disputations, Book Vill.
The confiscation of property on the ground of non-payment of taxes also extends to the heir, for what is confiscated immediately ceases to belong to the party who committed the crime, and the ownership of the same is acquired by the Treasury. Therefore, proceedings for confiscation can be instituted against the heir, just as against any possessor whomsoever.
15. Alfenus Varus, Digest, Book VII.
When the Emperor leased the quarries of the island of Crete, he inserted the following clause in the lease: "No one except the farmer of the revenue shall make an excavation, or remove, or take out a single stone from the quarries of the Island of Crete, after the Ides of March." A ship belonging to a certain individual, which was loaded with flints, having departed from the harbor of Crete before the Ides of March, was driven back into the harbor by the wind and departed the second time after the Ides of March.
Advice was asked whether the flints should be held to have been removed contrary to law after the Ides of March. The answer was that although the harbors, which themselves were parts of the island, should all be considered as belonging to it, still, as the vessel, having left the port before the Ides of March, was driven back to the island by a storm, and afterwards departed, it should not be held to have done so in violation of law; especially as the flints must be considered to have been removed before the time prescribed, since the ship had already left the harbor.
16. Marcianus, On Informers.
Sometimes a slave, who has been confiscated, should not be sold, but his appraised value should be paid by his owner, instead. For the Divine Severus and Antoninus stated in a Rescript that where a slave, who was said to have transacted the business of his master, is confiscated, he should not be sold; but his appraised value should be paid in accordance with the judgment of a good citizen.
(1) The same Emperors stated in this Rescript that if the slave should fail to file a proper account, and was proved to have rendered himself liable to confiscation, or was alleged to have corrupted the wife of his master, or had committed any other serious offence, the deputy of the Emperor should take cognizance of the matter, and if the slave is found to be guilty, his value should be appraised, and he must be delivered up to his master to be punished.
(2) The Divine Severus and Antoninus also stated in a Rescript, that where slaves have made themselves liable to confiscation, their
peculium is not included unless property forming part of it should itself have become subject to forfeiture.
(3) Where anyone does not declare, as liable to taxation, slaves whom he is transporting either to be sold, or employed, he will incur the penalty of confiscation; still, this applies only to newly acquired slaves, and not to such as are old. Old slaves are those who have been in servitude for an entire year, in a town; new ones, however, are understood to be such as have not yet been in servitude for a year.
(4) Slaves, who are in flight, are not liable to confiscation, as they went away without the consent of their masters. This has been expressly provided by the Imperial Constitutions, as the Divine Pius frequently stated in Rescripts that it was not in the power of slaves to escape the control of their masters by taking to flight, if the latter were unwilling, or were not aware of the fact.
(5) The Divine Hadrian decided that, although a person may allege ignorance, he will, nevertheless, be liable to the penalty of confiscation.
(6) The Divine Marcus and Commodus also stated in a Rescript that a farmer of the revenue was not to blame for not instructing those who violated the law, but that he must be careful that those who were willing to declare their property for taxation should not be deceived.
(7) Merchandise subject to duty is as follows: cinnamon, long pepper, white pepper, pentaspherum, Barbary leaf, costum, costamo-mum, nard, Turian cassia, the wood of the cassia tree, myrrh, amo-mum, ginger, malabathrun, Indian spice, chalbane, benzoin, assafoetida, aloes, wood, Arabian onyx, cardamon, cinnamon wood, flax, Babylonian furs, Parthian furs, ivory, Indian iron, linen, all precious stones, pearls, sardonyx, crystals, hyacinths, emeralds, diamonds, sapphires, beryls, callaini, Indian drugs, Sarmation cloth, silk and muslin, painted hangings, fine fabrics, silk goods, eunuchs, Indian lions and lionesses, male and female panthers, leopards, purple, wool, crimson dye and Indian hair.
(8) The Divine Brothers stated in a Rescript that if a cargo was unavoidably exposed to bad weather it should not, on this account, be confiscated.
(9) The Divine Pius stated in a Rescript that where a person, said to .be a minor under twenty-five years of age, declared that his slaves were for his own use, and he made a mistake, merely in the return of said slaves, he should be excused.
(10) The Divine Brothers also stated in a Rescript that where the slaves of anyone became liable to confiscation, not through fraud, but through mistake, the farmers of the revenue should remain content with double the amount of the tax, and should restore the slaves to the owner.
(11) The great Antoninus stated in a Rescript that if a tenant, or his own slaves, should unlawfully have a manufactory of arms on the land of the owner, without his knowledge, he would not be liable to any penalty.
(12) If anyone should make a declaration to a farmer of the revenue, and does not pay the tax, and it should be remitted by the farmer of the revenue (as is customary at times), the Divine Severus and Antoninus stated in a Rescript that the property should not be confiscated; for they say that there is no ground for confiscation after the declaration has been made, as what is due to the Treasury can be collected from the property of the farmers of the revenue, or from that of their sureties.
(13) Penalties cannot be collected from heirs where proceedings were not instituted during the lifetime of the person who was delinquent. This rule, as is the case with other penalties, is also applicable to those relating to taxation.
(14) The Divine Severus and Antoninus stated in a Rescript that if a farmer of the revenue, through the mistake of the person making payment, receives more than is due, he must refund it.
TITLE V. CONCERNING DONATIONS.
1. Julianus, Digest, Book XVII.
There are several kinds of donations. A person makes a donation with the understanding that the property will at once belong to the person who receives it, and will, under no circumstances, revert to himself, and he does this for no other reason than to display his liberality and munificence. This is what is properly called a donation.
Another gives something with the understanding that it will only become the property of the person who receives it, if something else takes place. This is not properly styled a donation, for it is a conditional gift. Likewise, when anyone gives something with the intention that it will immediately become the property of the person who receives it, but if something either happens, or does not happen, he wishes it to be returned to him; this is not properly called a donation, but it is merely a gift, which is dependent upon a condition; as, for instance, a donation mortis causa.
(1) Therefore, when we may say that a donation between betrothed persons is valid, we use the term in its correct sense, and we understand by it anything given by a person who bestows it for the sake of liberality in order that it may immediately become the property of the one who receives it, and that, under no circumstances, he desires it to be returned to him. And when we say that a man gives a donation to his betrothed with the understanding that, if the marriage should not take place, the gift may be returned, we do not contradict what was previously stated, but we mean that a donation can be made between such persons, and may become void under a certain condition.
2. The Same, Digest, Book LX.
When a son under paternal control desires to make a donation of money, he promises it by the order of his father, and the donation will be just as valid as if he had furnished a surety.
(1) If, however, the father, being about to donate the money to Titius, should order his son to promise it to him, it may be said that there is a difference if the son is indebted to his father, and if he is not. For where he owes his father a sum equal to what he promises, the donation is considered valid, just as if the father had ordered any other debtor to promise the money.
(2) If, however, I am about to donate money to Titius, and I order you who intend to give me an equal sum, to promise it to Titius, the donation is complete, as far as all the persons are concerned.
(3) A different rule of law will apply if, by your order, I promise to pay to someone, to whom you wish to make a donation, the money which I think that I owe you, for I can protect myself by an exception on the ground of fraud; and, moreover, I can compel the stipulator, by means of the proceeding called incerti, to give me a release from the obligation.
(4) In like manner, if I, by your order, promise to pay a certain sum of money, which I think that I owe you, to a third party whom you believe to be your creditor, I can bar the person making the demand by an exception on the ground of fraud; and, in addition to this, by availing myself of the proceeding called incerti against the stipulator, I can compel him to release me from the stipulation.
(5) If Titius should pay me a sum of money without any stipulation, but on the condition that it will only belong to me when Seius becomes Consul, the money will become mine when Seius obtains the consulship, even though the person who made the donation should be insane or dead at that time.
(6) If anyone, desiring to make a donation of money to me, gives it to someone else to bring to me, and he should die before he does so, it is settled that the ownership of the money does not pass to me.
(7) I gave Titius the sum of ten aurei on the condition that he would purchase Stichus with it. I ask, if the slave should die before he was purchased, whether I can recover the ten aurei by any action. The answer was that this is rather a question of fact than of law, for if I gave the ten aurei to Titius in order that he might purchase Stichus, and I would not have given them to him otherwise, and Stichus should die, I can recover the amount by an action. If, however, I had the intention of giving the ten aurei to Titius, in any event, and, in the meantime, he proposed to purchase Stichus, and I stated that I gave him the money in order that he might purchase him, what I have said should be considered rather a reason for the donation than the condition upon which the money was paid, and if Stichus should die, the money will remain in the hands of Titius.
3. Ulpianus, On the Edict, Book LXVII.
And, generally speaking, this question must be considered in making donations, for there is a great deal of difference whether there was a cause for making the donation, and whether a condition upon which it is dependent was imposed. If there was a cause, the property cannot be recovered; if a condition was imposed, there will be ground for its recovery.
4. Paulus, On Sabinus, Book LXXII.
A donation can be completed even by a party who intervenes.
5. Ulpianus, On Sabinus, Book XXXII.
Neither honorable nor dishonorable donations are prohibited, where they are made on account of affection. They are honorable where they are given to deserving friends or relatives; dishonorable, where they are given to harlots.
6. The Same, On Sabinus, Book XL1I.
Where anyone permits me, by way of donation, to remove stone from his property, as soon as the stone is taken out it will be mine, and he cannot prevent me from having it by forbidding its removal, because it becomes mine, as it were, by delivery. It is clear that if someone, who had been employed by me, should quarry the stone, he quarries it for me.
If, however, anyone purchases the stone from me, or leases it for a consideration, in such a way that I can permit him to quarry for himself, and, before he does so, I change my mind, the stone will continue to belong to me. If I should change my mind afterwards I cannot revoke his act, as delivery is presumed to have been made when he quarried the stone with the consent of the owner. What applies to the stone should also be considered to apply where a tree is cut down, or is taken out by the roots, under similar circumstances.
7. The Same, On Sabinus, Book XLIV.
A son under paternal control cannot make a donation even if he has free administration of his peculium, for this is not granted him in order that he may lose his property.
(1) But what if, induced by some good reason, he makes a donation? Can it be said that there is legal ground for making it? The latter is the better opinion.
(2) Again, let us see if anyone should grant a son under paternal control the free administration of his peculium, and should add specifically that this is done to enable him to make a donation; will the donation be valid? I do not doubt that he can make a valid donation under such circumstances.
(3) Sometimes the power to make a donation may be inferred from the rank of the person; for suppose that the son was of senatorial rank, or had been promoted to some other portion, why can it not be said that his father, when he gave him the free administration of his peculium, granted him also the privilege of making a donation of it, unless he expressly deprived him of the power of doing so ?
(4) For the same reason that a son under paternal control is forbidden to make a donation inter vivos, he is also forbidden to make one mortis causa. For although he can make a donation mortis causa with the consent of his father, he is prohibited doing so if his consent is not given.
(5) It must, however, be remembered that if anyone is permitted to make a donation without it being specified that he can make one mortis causa, he cannot do so.
(6) All these regulations apply to persons in civil life. Where, however, soldiers have a castrense or a quasi castrense peculium, they are in such a position that they can make a donation mortis causa as well as a donation inter vivos, since they have testamentary capacity.
8. Paulus, On Sabinus, Book XV.
Money paid by freedmen in order to obtain their liberty is not a donation, for a consideration is given for it.
9. Pomponius, On Sabinus, Book XXXIII.
When permission is given anyone to lodge without payment in the house of another, it is considered a donation; for he who has the lodging is held to obtain as a gift the rent which he does not pay. A donation can also be valid without the delivery of the property; as, for instance, where, by way of donation I make an agreement with my debtor that I will not demand payment of him before a certain time has elapsed.
(1) The income from property which is donated is not included as part of the donation. If, however, I should give you, not the ownership of a tract of land, but the right to gather the crops, this will be held to constitute a donation.
(2) If a son under paternal control makes a donation by the order, or with the consent of his father, it is the same as if the father himself had made it, or if you should make a donation to Titius of my property with my consent in your own name.
(3) No one can make a donation, unless what is given becomes the property of the person to whom it is made.
10. Paulus, On Sabinus, Book XV.
A donation can properly be made to a person who is absent, whether you send someone to take it to him, or whether you direct him to keep something which he has in his possession. If, however, he does not know that the property which is in his possession is given to him, or if, after it is sent to him, he should not accept it, he will not become the owner of the article designated, even if it has been sent to him by his own slave; unless it was given to the latter with the intention that it should instantly become the property of his master.
11. Gaius, On the Edict of the Urban Prsetor Concerning Legacies.
When a dispute arises with reference to the amount of the donation, neither the children of female slaves, crops, rents, nor wages are held to be included.
12. Ulpianus, Disputations, Book III.
Anyone who binds himself to make a donation can, according to a Rescript of the Divine Pius, only be sued for an amount which he
is able to pay, for what he owes to his creditors must first be deducted; but what he is bound to give in the same manner to others should not be deducted.
13. The Same, Disputations, Book VII.
A certain person, who desired to make a donation to me, delivered the property to a slave jointly owned by Titius and myself, and the slave received it as an acquisition for my fellow joint owner, or did so on behalf of both of us. The question arose, what should be done? It was decided that although the slave accepted the property with the intention of acquiring it for my fellow joint owner, or for both himself and me, he, nevertheless, acquired it for me alone. For if he delivered it to my agent, with the intention that he should acquire it for me, and he accepted it in order to obtain it for himself, this will have no effect so far as he is concerned, but he will acquire the property for me.
14. Julianus, Digest, Book XVII.
Anyone who cultivates the land of another, by way of making a donation, cannot reserve anything on account of expenses which he may incur, because he immediately transfers to the owner the right to any implements which he takes upon the land.
15. Marcianus, Institutes, Book III.
According to a Constitution of the Divine Severus and Antoninus, donations made after the accusation of a capital crime are valid, unless the defendant is convicted.
16. Ulpianus, Opinions, Book II.
By the following clause, "Let my heirs take notice that my entire wardrobe, and any other property which I had in my possession at the time of my death, has been given to So-and-So and So-and-So, my freedmen," the ownership of the property will, by a liberal interpretation, belong to the said freedmen.
17. The Same, On the Edict, Book LVIIL
Where property awarded by a judicial decision has been included in a new stipulation, and a release had been made of the latter for the purpose of making a donation, it must be said that the release will be valid.
18. The Same, On the Edict, Book LXXI.
Aristo says that when any other transaction is mixed with a donation, an obligation growing out of the former is not contracted with reference to the donation. Pomponius also says that he holds the same opinion.
(1) He also says that Aristo thinks that if I deliver to you a slave on condition that you manumit him after five years, you cannot act before the five years have elapsed, because a species of donation is
considered to be included in the transaction. He, however, states that it will be otherwise if I deliver the slave to you in order that you may manumit him immediately; for, in this instance, there is no donation, and hence the obligation exists.
Pomponius, however, says that in the first instance the intention of the parties should be ascertained, for the term of five years may not have been prescribed with a view to making a donation.
(2) Aristo also says, that if a slave is delivered for the purpose of making a donation on condition that he shall be manumitted after five years have elapsed, and the slave belongs to another, a doubt may arise whether the slave can be acquired by usucaption, because a species of donation exists in this case.
Pomponius says that this question also applies to donations mortis causa, and he is inclined to think that if the slave was donated under the condition that he be manumitted after five years, it may be held that he can be acquired by usucaption.
(3) Labeo says that if anyone should give me property belonging to another, and I should incur considerable expense on account of it, and then it should be evicted, I will not be entitled to any action on this account against the donor; but it is evident that I will be entitled to one against him on the ground of fraud, if he acted in bad faith.
19. The Same, On the Edict, Book LXXVI.
It is our practice where, in public matters, a question arises with reference to a donation, to only ascertain whether the donor made a promise to the city for some just cause, or not; since if he did so in consideration of some office which he received, he will be liable; otherwise, he will not.
(1) Labeo says that compensation for services of this kind is not included in donations; for example, if they are made conditionally as follows, "If I come to your aid; if I give security for you; if you make use of my services, or influence in the transaction."
(2) A donation cannot be acquired by anyone who is unwilling to accept it.
(3) Where a man le'nds money to Titius to be paid to Seius, to whom he desires it to be donated, and Titius does not pay it to Seius until after the death of the donor; the result will be that it can be said that the money will belong to Seius, whether he who paid it knew that the donor was dead, or was not aware of that fact; because the money still belonged to the latter.
If he did not know that the donor was dead, he will be released from his obligation, if he borrowed the money to be paid to Seius. If, however, I should direct you to pay a certain sum of money to Titius, to whom I intend to donate it, and you not being aware that I was dead should do so, you will be entitled to an action on mandate against my heirs; but if you knew it, you will not be entitled to this action.
(4) If anyone lends money to a slave, and the slave, having afterwards become free, makes a new promise to pay it, this will not be
a donation, but the acknowledgment of a debt. The same rule applies to the case of a ward, who becomes indebted without the authority of his guardian, if he afterwards, with the consent of his guardian, contracts a new obligation.
(5) Stipulations which are entered into for a valid consideration
are not held to be donations.
(6) In conclusion, Pegasus thinks that if I promise you a hundred aurei, under the condition that you swear to bear my name, this will not be a donation, because the promise was made for a consideration, and a consideration was paid.
20. Marcellus, Digest, Book XXII.
If a patron is appointed heir to the share of an estate to which he is legally entitled, and his freedman charges him to pay a certain sum of money to someone, and he promises to do so in the presence of the beneficiary of the trust, he will not be compelled to pay it, for fear that the share due to him as patron under the law may be diminished. (1) A doubt may arise with reference to an heir who, in accordance with the will of the testator, promises to pay a legatee what he would have a right to retain under the Falcidian Law, but the better opinion is that he cannot violate his obligation. For if he does make payment, he will be considered to have exactly complied with the wishes of the testator, and no suit for recovery will be granted him; just as where he had made a previous stipulation, and acted contrary to the wishes of the testator, which he already had acknowledged, his claim will, with good reason, be barred.
21. Celsus, Digest, Book XXVIH.
In order to make me a donation you bound yourself to my creditor, to whom I delegated you. The act is valid, for the creditor receives
what he is entitled to.
(1) If, however, I order my debtor to bind himself to you for the purpose of making you a donation greater than that authorized by law, the question arises whether or not you can be barred by an exception upon the ground of the donation. My debtor cannot avail himself of the exception against you, if you bring an action, because I am in the same position as if I had given you the amount, after having collected it from my debtor, and you had lent it to him.
If the money has not been paid by my debtor, I will be entitled to an action against him to annul anything which he has promised you above the amount authorized by law, so that he will only remain liable to you for the balance. If, however, you have already collected the entire amount from my debtor, I will be entitled to an action against you to recover the excess of what the law prescribes.
22. Modestinus, Differences, Book Vill.
It is perfectly equitable that he who has promised a sum of money, or anything else, for the purpose of making a donation, shall not be liable for interest on account of delay in paying the money; and this
is especially the case where the donation is not included in the class of bona fide contracts.
23. The Same, Opinions, Book XV.
Modestinus gives it as his opinion that a creditor can, by mere agreement, entirely remit or diminish the amount of interest to be due hereafter, without affecting the validity of the donation on the ground that the amount is illegal.
(1) It is the opinion of Modestinus that a person whose mind is affected cannot make a donation.
24. Javolenus, On Cassius, Book XIV.
An exception should be granted to the surety of him who, for the purpose of making a donation, promised a sum of money greater than that authorized by law, even against the consent of the principal; for if the latter should not be solvent, the surety will lose the money.
25. The Same, Epistles, Book VI.
If I give you something in order that you may donate it to Titius, in my name, and you give it to him in yours, do you think that it becomes his property? The answer was that if I give you something for you to give to Titius in my name, and you give it to him in your own name, so far as the technicality of the law is concerned, it does not become the property of the person who receives it, and you will be liable for theft; but the more liberal construction is that if I bring an action against the person who has received the property, I can be barred by an exception on the ground of fraud.
26. Pomponius, On Quintus Mucius, Book IV.
A simple statement in an account does not render anyone a debtor; for instance, if we wish to make a donation to a freeman, we can make the statement in our account that we owe it, but no donation is understood to be made.
27. Papinianus, Questions, Book XXIX.
A young man named Aquilius Regulus wrote to Nicostratus, his teacher of rhetoric, as follows: "Because you have always remained with my father, and have benefited me by your eloquence and your care, I give, and permit you to lodge in and make use of, such-and-such an apartment." Regulus having died, the right of Nicostratus to the apartment was disputed; and when he consulted me, I told him that the act of Regulus could not be maintained to be a mere donation, but that he had remunerated him for his services, and granted him this privilege by way of compensation, and therefore, that the donation should not be held to be void for the time following the death of Regulus.
If Nicostratus had been ejected, he could have gone into court and protected himself by an interdict, in the same way in which an usufructuary could have done, as he obtained the use of the apartment through having been given possession of the same.
28. The Same, Opinions, Book III.
A father donated an estate, which had been left to him, to his daughter, who had become her own mistress. The daughter must satisfy the creditors of the estate, and if she should not do so, and the creditors should have recourse to her father, she can be compelled by an action prsescriptis verbis to defend her father against the creditors.
29. The Same, Opinions, Book XII.
A donation is held to be made if property is given when the donor is not compelled to do so by any law.
(1) A certain person, having been interrogated in court, answered that the heirs of his guardian did not owe him anything. I gave it as my opinion that, by doing so, he had lost his right of action, for although these words may be understood to indicate not a business transaction, but a donation, still, he who has made an admission in court cannot contradict it.1
(2) It has been settled that where anyone makes a donation of a portion of the estate of his next of kin, who is still living, it is void.
But it was held that if he who made the donation afterwards succeeded to the estate under the praetorian law, all suits arising from it should be refused him, because his acting in such haste was contrary both to good morals and the Law of Nations.
30. Marcianus, On Informers.
For he should be deprived of the estate as being unworthy of it.
31. Papinianus, Opinions, Book XIII.
It is established that donations made to a concubine cannot be revoked, for not even if marriage should afterwards be contracted by the parties, will what formerly was valid by law become of no force or effect? But where the question was asked if marital honor and affection did not already exist, I answered that this should be determined by considering the character of the persons and the nature of their union in life, for a mere written contract does not constitute marriage.
(1) Where certain property was given by a mother to the husband of her daughter, in addition to the dowry, I gave it as my opinion that it should be considered to have been given to the daughter, who herself was present, and delivered it to her husband; and that the mother, who was offended, had no right to recover the property, nor could she under the law bring a personal action to do so, because the husband had specifically provided that the said property should be given to him for the benefit of the girl, in addition to her dowry; since by this statement, not only was the character of the donation indicated, and it was clear that the property was not separated from the
1 "Confessus in jvdicio pro judicata habetur et quodwmmodo sua sententia damnatur."—ED.
use of the same, but it also showed that it was a peculium separate and distinct from the dowry.
The magistrate, however, should determine whether the mother should recover the property if she was justly offended with her daughter, and he must render a decision with proper regard to the respect to be manifested toward a mother, and one which will coincide with the judgment of a good citizen.
-(2) -A. father who gave certain slaves to his daughter, who was under his control, and did not deprive her of her peculium when he emancipated her, is held to have perfected the donation by his subsequent act.
(3) I gave it as my opinion, that where property was deposited in a temple under the condition that he alone could remove it who left it there, or JSlius Speratus, after the death of the owner, it would not be considered as a donation.
(4) Donations cannot be valid after the crime of treason has been committed, as the heir is also liable, even though the guilty party should die before having been convicted.
32. Scsevola, Opinions, Book V.
Lucius Titius sent the following letter: "So-and-So to So-and-So, Greeting. You can make use of such-and-such an apartment and all the rooms above it, gratuitously; and I notify you by means of this letter that you can do so with my consent."
I ask whether the heirs of the writer can forbid the use of the apartment? The answer was that, according to the facts stated, the heirs of the person who wrote the letter can change the intention of the latter.
33. Hermogenianus, Epitomes of Law, Book VI.
Anyone who has made a new promise to pay, after having entered into an agreement to make a donation, can be sued in an action based on the promise, not for the entire amount, but only for what he is able to pay; for it has been settled that the cause and origin of the promise to make payment, and not the authority of the judge, must be considered. He, however, who has had judgment rendered against him on account of a donation, and an action is brought against him to enforce the judgment, can very properly ask that he only be sued to the extent of his pecuniary resources.
(1) Where money has been paid to Titius as a donation, under the condition that he will immediately lend it to the donor, the transfer of ownership is not prevented; and for this reason where the same money is lent to the donor, a new ownership of it is acquired.
(2) Persons who are dumb and deaf are not prohibited from making donations.
(3) When anyone desires to make a donation to you, and you intend to donate the same article to another, the donation will be perfected if the first promises, with your consent, to give it to the second; and because the first gave nothing to the second, by whom he can be
sued, he can have judgment rendered against him for the entire amount, and not for as much as he is able to pay.
The same rule is observed where he who is to receive the donation has delegated the donor to his creditor; for, in this instance, the creditor is merely transacting his own business.
34. Paulus, Decisions, Book V.
If a father should lend money at interest in the name of his emancipated son, with the intention of giving it to him as a donation, and the son makes a stipulation with reference to said money, there is no doubt that the donation is perfected by operation of law.
(1) If anyone should rescue a person from the hands of robbers, or enemies, and receive something from him as a reward for doing so, a donation of this kind is irrevocable, and should not be designated a reward for an eminent service rendered; as it has been decided that no limit should be fixed to an act performed for the purpose of saving life.
35. Scsevola, Digest, Book LI.
A man wrote to a slave whom he had manumitted, as follows: "Titius to Stichus, his freedman, Greeting. After having manumitted you I notify you by this letter, written by my own hand, that I give to you everything which you have in credits, in movable property, and in money." He also made the same freedman heir to two-thirds of his estate by will, and Sempronius his heir to the remaining third; but he did not bequeath to Stichus his peculium, nor did he direct that he should have the rights of action growing out of the same.
The question arose whether an action should be granted to Stichus for the entire amount of the credits, including his peculium; or whether it should be granted to both of the heirs in proportion to their respective shares of the estate. The answer was that, in accordance with the facts stated, the action should be granted to both of them in proportion to their respective shares of the estate.
(1) Lucius Titius gave to Msevia a tract of land, by way of a donation, and a few days afterwards before delivering the same, he pledged the land to Seius, and then, within thirty days, gave Msevia possession of the said land. I ask whether the donation was perfected or not. The answer was that, in accordance with the facts stated, it was perfected, but that the creditor was undoubtedly entitled to his right in the land under the pledge.
(2) A grandmother lent money, in the name of Labeo, her grandson, and always collected the interest, and the evidences of indebted-* ness were received by Labeo, and were afterwards found among the assets of his estate. I ask whether the donation should be considered to have been perfected. The answer was that, as the debtors were liable to Labeo, the donation was perfected.
TITLE VI.
CONCERNING DONATIONS AND OTHER ACQUISITIONS MORTIS CAUSA.
1. Marcianus, Institutes, Book IX.
A donation mortis causa is one where the party wishes to retain the property himself instead of transferring it to him to whom he donates it, but prefers that the donee shall have it rather than his heir.
(1) Telemachus gives a donation of this kind to Piraeus, in Homer.
2. Ulpianus, On Sabinus, Book XXXII.
Julianus, in the Seventeenth Book of the Digest, says that there were three kinds of donations mortis causa. The first, where the donor, who is under no apprehension of impending death, makes a donation solely with a view to his decease. He says another kind of donation mortis causa is where anyone is disturbed by the immediate prospect of death and makes a donation, so that the article immediately becomes the property of the person who receives it. He says that the third kind of donation is where a man, apprehensive of death, does not give the property so that its ownership will immediately vest in the person entitled to it, but provides that it shall belong to him after the death of the donor.
3. Paulus, On Sabinus, Book VII.
It is lawful to make a donation mortis causa not only when a person is induced to do so by failing health, but also because of the danger of impending death, either at the hands of enemies, or robbers; or on account of the cruelty or hatred of some powerful man, or when anyone about to undertake a sea voyage;
4. Gaius, Diurnal or Golden Matters. Or travel through dangerous places,
5. Ulpianus, Institutes, Book II.
Or where one is exhausted by old age:
6. Paulus, On Sabinus, Book VII.
For all these conditions indicate impending danger.
7. Ulpianus, On Sabinus, Book XXXII.
If anyone convicted of a capital crime should make a donation mortis causa, the donation will be annulled as imperfect; although other donations made by him previous to the suspicion that he was liable to such a penalty may be valid.
8. The Same, On Sabinus, Book VII.
Where anyone, having received a sum of money, rejects an estate, whether it passes to a substitute, or whether an heir succeeds to it on
the ground of intestacy, he is considered to have obtained the money mortis causa; for whatever is acquired on account of the death of anyone is obtained mortis causa.
Julianus adopts this opinion, and we make use of it. For where anything is received by a slave, who is to be free under a certain condition, for the purpose of complying with the condition; or anything is obtained by a legatee mortis causa; or where a father gives anything on account of the death of his son, or of a relative; Julianus states that it is acquired mortis causa.
(1) Hence, he says that a donation can be made in such a way that it will revert to the donor, if the sick person should recover.
9. Paulus, On Sabinus, Book HI.
Everyone is permitted to acquire a donation mortis causa who has the right to receive a legacy.
10. Ulpianus, On Sabinus, Book XXIV.
It is settled that he to whom a donation mortis causa is made can be substituted in such a way that he can promise the property to someone else, if the latter cannot himself acquire it, or cannot do so under some other condition.
11. The Same, On Sabinus, Book XIII.
A father can legally make a donation on account of the death of his son, even during the existence of his son's marriage.
12. The Same, On Sabinus, Book XLIV.
Where a woman fraudulently asks to be placed in possession of an es