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. VI.
CINCINNATI THE CENTRAL TRUST COMPANY
Executor of the Estate Samuel P. Scott, Deceased
PUBLISHERS
CONTENTS OF VOLUME VI.
THE DIGEST OR PANDECTS.
(Continued.)
BOOK XXIV.
TITLE III. PAGE
IN WHAT WAY THE DOWRY CAN BE RECOVERED AFTER THE MARRIAGE HAS BEEN DISSOLVED ........................................ 3
BOOK XXV.
TITLE I. CONCERNING EXPENSES INCURRED WITH REFERENCE TO DOTAL PROPERTY. 27
TITLE II.
CONCERNING THE ACTION TO RECOVER PROPERTY WHICH HAS BEEN REMOVED ...................................................... 30
TITLE III.
CONCERNING THE RECOGNITION AND MAINTENANCE OF CHILDREN, PARENTS, PATRONS, AND FREEDMEN ............................... 37
TITLE IV.
CONCERNING THE EXAMINATION OF PREGNANT WOMEN, AND THE PRECAUTIONS TO BE TAKEN WITH REFERENCE TO THEIR DELIVERY........ 43
TITLE V.
WHERE A WOMAN IS PLACED IN POSSESSION OF THE ESTATE OF HER HUSBAND IN THE NAME OF HER UNBORN CHILD, AND THIS POSSESSION IS SAID TO HAVE BEEN FRAUDULENTLY TRANSFERRED TO ANOTHER .... 47
TITLE VI.
WHERE A WOMAN IS SAID TO HAVE OBTAINED POSSESSION OF THE ESTATE OF HER HUSBAND IN THE NAME OF HER UNBORN CHILD, BY HAVING MADE A FALSE STATEMENT ................................... 48
TITLE VII. CONCERNING CONCUBINES ......................................... 50
BOOK XXVI.
TITLE I. PAGE CONCERNING GUARDIANSHIP ....................................... 51
TITLE II. CONCERNING TESTAMENTARY GUARDIANSHIP......................... 56
TITLE III. CONCERNING THE CONFIRMATION OF A GUARDIAN OR A CURATOR........ 65
TITLE IV. CONCERNING LEGAL GUARDIANS .................................... 67
TITLE V.
CONCERNING GUARDIANS AND CURATORS WHO ARE APPOINTED BY THOSE WHO HAVE A LEGAL RIGHT TO DO SO, AND WHO CAN BE APPOINTED EXPRESSLY, AND UNDER WHAT CIRCUMSTANCES.................. 71
TITLE VI.
CONCERNING THOSE WHO MAY DEMAND GUARDIANS OR CURATORS, AND WHERE THIS CAN BE DONE................................... 76
TITLE VII.
CONCERNING THE ADMINISTRATION AND RESPONSIBILITY OF GUARDIANS AND CURATORS, WHETHER THEY HAVE TRANSACTED THE BUSINESS OF THEIR TRUSTS OR NOT, AND CONCERNING ACTIONS AND SUITS WHICH CAN BE BROUGHT AGAINST ONE OR ALL OF THEM ............... 79
TITLE VIII. CONCERNING THE AUTHORITY AND CONSENT OF GUARDIANS AND CURATORS. 108
TITLE IX.
WHEN MINORS CAN SUE OR BE SUED ON ACCOUNT OF THE ACTS OF THEIR GUARDIANS OR CURATORS ...................................... 113
TITLE X. CONCERNING SUSPECTED GUARDIANS AND CURATORS .................. 114
BOOK XXVII.
TITLE I. CONCERNING THE EXCUSES OF GUARDIANS AND CURATORS.............. 120
TITLE II.
WHERE A WARD SHOULD BE BROUGHT UP, OR RESIDE, AND CONCERNING THE SUPPORT WHICH SHOULD BE FURNISHED HIM .............. 142
TITLE III.
CONCERNING THE ACTION TO COMPEL AN ACCOUNTING FOR GUARDIANSHIP, AND THE EQUITABLE ACTION BASED ON CURATORSHIP........ 145
TITLE IV.
CONCERNING THE COUNTER ACTION ON GUARDIANSHIP AND THE PRÆTORIAN ACTION .............................................. 154
TITLE V.
CONCERNING ONE WHO TRANSACTS BUSINESS AS ACTING GUARDIAN OR CURATOR .................................................... 157
TITLE VI.
CONCERNING BUSINESS TRANSACTED UNDER THE AUTHORITY OF A FALSE GUARDIAN ................................................... 159
TITLE VII.
CONCERNING THE SURETIES OF GUARDIANS AND CURATORS AND THOSE WHO HAVE OFFERED THEM, AND THE HEIRS OF THE FORMER...... 162
TITLE VIII. CONCERNING SUITS AGAINST MAGISTRATES ...........................164
TITLE IX.
CONCERNING THE PROPERTY OF THOSE WHO ARE UNDER GUARDIANSHIP OR CURATORSHIP, AND WITH REFERENCE TO THE ALIENATION OR ENCUMBRANCE OF THEIR PROPERTY WITHOUT A DECREE.............. 168
TITLE X.
CONCERNING THE APPOINTMENT OF CURATORS FOR INSANE PERSONS AND OTHERS WHO ARE NOT MINORS .............................. 175
FIFTH PART. BOOK XXVIII.
TITLE I.
WHO CAN MAKE WILLS AND IN WHAT MANNER THEY SHOULD BE EXECUTED ....................................................... 179
TITLE II.
CONCERNING THE APPOINTMENT AND DISINHERITANCE OF CHILDREN AND POSTHUMOUS HEIRS .......................................... 186
TITLE III. CONCERNING ILLEGAL, INVALID, AND BROKEN WILLS.................. 198
TITLE IV. PAGE CONCERNING ERASURES, CANCELLATIONS, OR ADDITIONS TO A WILL...... 205
TITLE V. CONCERNING THE APPOINTMENT OF HEIRS .......................... 208
TITLE VI. CONCERNING ORDINARY AND PUPILLARY SUBSTITUTIONS .............. 239
TITLE VII. CONCERNING THE CONDITIONS OF APPOINTMENTS .................... 257
TITLE VIII. CONCERNING THE RIGHT OF DELIBERATING.......................... 264
BOOK XXIX.
TITLE I. CONCERNING THE WILL OF A SOLDIER............................... 266
TITLE II. CONCERNING THE ACQUISITION OR REJECTION OF ESTATES............. 280
TITLE III. IN WHAT WAY WILLS SHOULD BE OPENED, EXAMINED, AND COPIED .... 305
TITLE IV.
WHERE ANYONE, THROUGH THE REJECTION OF HIS APPOINTMENT AS TESTAMENTARY HEIR, OBTAINS POSSESSION OF THE ESTATE THROUGH INTESTACY OR IN ANY OTHER WAY ............................ 307
TITLE V.
CONCERNING THE SILANIAN AND CLAUDIAN DECREES OF THE SENATE BY THE PROVISIONS OF WHICH WILLS CANNOT BE OPENED........... 318
THE DIGEST OR PANDECTS.
(Continued.)
BOOK XXIV.
TITLE III.
IN WHAT WAY THE DOWRY CAN BE RECOVERED AFTER THE MARRIAGE HAS BEEN DISSOLVED.
1. Pomponius, On Sabinus, Book XV.
The cause of the dowry always and everywhere takes precedence, for it is to the public interest for dowries to be preserved to wives, as it is absolutely necessary that women should be endowed for the procreation of progeny, and to furnish the state with freeborn citizens.
2. Ulpianus, On Sabinus, Book XXXV.
Where marriage is dissolved, the dowry should be delivered to the woman. The husband is not compelled, in the beginning, to promise it by stipulation to another, unless this will not in any way prejudice his rights; for it must be held that if he has reason to apprehend anything that may inconvenience himself, he should not be compelled to promise the dowry to anyone else but his wife. This is the case where the woman is her own mistress.
(1) But if she is under the control of her father, and the dowry comes from him, it belongs to him and to his daughter. Hence the father cannot, either in his own proper person or by an agent, claim the dowry without the consent of his daughter; and therefore Sabinus says that it should be promised in this manner. Hence, it ought to be promised to whomever both parties direct this to be done.
6. Paulus, On Sabinus, Book VII.
Again, if the father alone orders this, the right to bring suit for the dowry will not be taken away from his daughter after she becomes her own mistress. Moreover, if the father alone makes a promise with the consent of his daughter, the right of action will remain unimpaired so far as he is concerned. But can he act alone, or can he institute proceedings conjointly with his daughter? I think that the right of action to which the father, conjointly with his daughter, is entitled, is not lost; but if the daughter becomes her own mistress, this stipulation will prejudice him.
(2) When the father brings an action on dowry should we understand the consent of the daughter to mean that she expressly consents, or that she does not offer any opposition? It is stated in a Rescript of the Emperor Antoninus that a daughter is held to give her consent to her father where she does not clearly manifest opposition.
Julianus states in the Forty-eighth Book of the Digest that a father is considered to institute proceedings with the consent of his daughter, when the latter is insane; for where she cannot manifest opposition on account of insanity, he thinks very reasonably that she gives her consent. But where the daughter is absent, it must be said that her father does not act with her consent, and he must furnish security that she will ratify what he does. Where the daughter is in possession of her senses, we require her to have knowledge of the proceedings, in order that it may appear that she does not oppose them.
3. Paulus, On Sabinus, Book VII.
The consent of both father and daughter is required, not only in demanding the dowry, but also in the payment of it, as both have a common interest in the same, and neither of them can make the condition of the other worse. Where, however, the money which the daughter received comes into the hands of the father, both are deprived of the right of action on dowry.
4. Pomponius, On Sabinus, Book XV.
Where a father collects a dowry from the husband of the daughter without her consent, and gives it to her second husband in her name, and the father, having died, the daughter brings an action against her first husband, she will be barred by an exception on the ground of fraud.
5. Ulpianus, On Sabinus, Book XXX.
With reference to the division of the dowry during the year in which the divorce took place, the question arises whether the time shall be computed from the day of marriage or from that on which the property was delivered to the husband. Therefore, where the profits are to be retained by the husband, neither the day when the dowry was constituted nor the day of the marriage should be taken into consideration, but that on which the land given by way of dowry was first delivered, that is to say when possession was given.
6. Paulus, On Sabinus, Book VII.
If the land was delivered before marriage, the year must be reckoned from the day of the marriage to the same day of the following year. This rule must be observed for all other years until the divorce takes place, for where the land has been delivered before the marriage, and the crops have been gathered from the same when a divorce takes place, these must be returned as forming part of the dowry.
7. Ulpianus, On Sabinus, Book XXXI.
It is held that the profits are what remains after deducting the expenses, and Scævola applies this to those incurred by both husband and wife. For if the wife gave her dowry the day before the vintage, and, after the vintage was removed by the husband, he obtains a divorce, Scævola does not think that the profits only of the eleven months should be refunded, but that also the expenses which were incurred should be deducted before dividing the profits. Therefore, if the husband spends
anything for this year, the expenses of both parties should be considered. Thus, if an account is taken of the expenses incurred by the woman during several years of marriage, it will be necessary to compute them from the first year, before the land was given by way of
dowry.
(1) Papinianus, however, says in the Eleventh Book of Questions that where a divorce takes place, the profits should be divided, not from the day when the property was leased, but that an account should be taken of the preceding time during which the marriage existed. For if the land was given as dowry at the time of the vintage, and the husband leased it to be held from the Kalends of November, and the divorce took place on the last day of the month of January, it is not just for him to be able to retain at the same time the profits of the vintage and the fourth part of the rent for the year when the divorce took place; otherwise, if the divorce was obtained upon the day before the vintage, the husband would retain the entire profits. Hence, if the divorce took place at the end of the month of January, and the marriage had existed for four months, the profits of the vintage and the fourth part of the rent for the present year should be consolidated, and out of this money a third part should be paid to the husband.
(2) The same rule must also be observed in the opposite case. For if a woman, immediately after the vintage has been gathered, gives a tract of land by way of dowry to her husband, and the latter rents the same land from the Kalends of March, and the divorce takes place on the Kalends of April, the husband can retain not only the twelfth part of the rent, but also a proportionate amount of the rent which will be due for the entire number of months during which the land was held as
dowry.
(3) Moreover, if the crops during the year when the divorce was obtained belonged to the tenant in compliance with the terms of the lease, and the marriage is dissolved before the vintage, the money derived from the crops must be computed with reference to the expected yield of the next vintage.
(4) It is therefore apparent, from what has been stated, that those profits which the woman collected before she was married should not be included in the division.
(5) Set-offs can be made on account of donations, as well as because of what may have been appropriated out of such profits as have been collected after the divorce.
(6) What has been mentioned with reference to a year also applies to the term of six months, where two crops are gathered annually, as is the case where land is irrigated.
(7) The same rule applies where profits are collected only once in several years, as where trees are cut down.
(8) Moreover, if the lease of land is of such a character that something in addition to the annual rent must be paid at the end of five years, we must take into account the amount of the excess in proportion to the part of the five years which has elapsed.
(9) We hold that the same principle applies not only to land but also to cattle, so that the wool of sheep and the increase of flocks must be delivered. For if the husband accepts, by way of dowry, certain ewes about to have young, or which are soon to be sheared, will he be obliged to return nothing if a divorce should take place immediately after the lambs have been born, or the sheep sheared? In this instance, we must take into account the profits for the entire time during which the animals were taken care of, and not merely that when they were collected.
(10) With reference to a slave, the entire year must be taken into account if his services have been leased for that term, so that they will belong to the husband for the time previous to the divorce, but after it to the wife.
(11) The same rule also applies to the rents of urban estates as to the crops of farm lands.
(12) Where a wife gives land to her husband by way of dowry, and he cuts down the trees, if these are understood to be profits, their value in proportion to that part of the year which has elapsed must be refunded. I think, however, that if the trees which were cut down formed a thicket, or were small, they must be classed as crops. Where, however, they were not of this description, the husband should be held liable as having caused a deterioration of the land. But if the trees have been overthrown by the force of a storm, it must be said that their value should be paid to the woman, and that they should not be classed as crops, any more than when a treasure is found it is not reckoned as part of the crop, but half of it should be restored to the wife, just as in the case where a treasure is found on the land of another.
(13) If a husband should find marble quarries upon the land of his wife given by way of dowry, and they render the land more profitable, the marble which has been taken out, but not removed, will belong to the husband, but the expenses he has incurred shall not be made good to him, because the marble is not part of the yield of the land, unless it is of such a character that the stone is renewed, as is the case in certain quarries in Gaul and Asia.
(14) The yield of chalk pits, however, as well as of mines of gold or silver or any other kind of metal, or of sand pits, is considered to be part of the produce of the land.
(15) Security is sometimes given to the husband by his wife for the profits, and he retains nothing, if the woman receives the land while the crops are still standing. Sometimes the husband keeps the crops and restores nothing, which occurs where there is no more than he has a right to retain as his share. Sometimes, indeed, he must return the crops, when he has collected more than he is entitled to retain.
The same rule applies where proceedings are instituted with reference to the dowry against a father-in-law, or against the heir of either of the joint-owners of the property.
(16) Pomponius says that whatever has been expended in the cultivation and the planting of the ground is to be considered as expended for the gathering of the crops, as well as whatever has been laid out for the preservation of buildings, or in caring for a sick slave; that is to say, where any profits are obtained from the said building or slave. These expenses, however, cannot be claimed where the husband retains the entire profit for the year, because the expenses should in the first place be provided for out of the income.
It is evident that where the husband built a new house which was necessary, or rebuilt the old one which had entirely fallen into ruin without his fault, he will be entitled to present a bill for the expense. In like manner, if he uses a hoe upon the land, the same rule will apply; for such expenses are either necessary or beneficial to the property, and give rise to an action in favor of the husband.
8. Paulus, On Sabinus, Book VII.
Where a tract of land is given by way of dowry, and stone is taken therefrom, it is settled that the profit of the quarries will belong to the husband; because it is clear that the woman gave the said tract of land with the intention that the profit of the same should belong to him, unless she stated the contrary in the bestowal of the dowry.
(1) Whatever is expended in the sowing of grain can be deducted from the vintage, in case of the failure of the crop; because the yield of the entire year is considered to be the same.
9. Pomponius, On Sabinus, Book XIV.
If a woman should be in default in receiving her dowry, her husband shall only be responsible for bad faith, and not for negligence with reference to the matter, in order to avoid his being compelled by the act of his wife to cultivate her land indefinitely; but the crops which have come into the hands of the husband must be given up.
10. The Same, On Sabinus, Book XV.
Where a married daughter who was captured by the enemy, and who had a dowry obtained from her father, died in captivity, I think it should be held that the same principle applies as if she had died during marriage; so that, even if she was not under the control of her father, the dowry will revert to him from whom it had been derived.
(1) Proculus says that where a man kills his wife, an action on dowry should be granted to her heir; and this is perfectly proper, for it is not just that a husband should expect to make a profit out of the dowry as the result of his own crime. The same rule should be observed in the opposite case.
11. The Same, On Sabinus, Book XVI.
If a woman should knowingly give as dowry property which belongs to another, it must be delivered to her husband, just as if she had given him something that was her own, as well as the crops for the proportionate part of the year during which the divorce took place.
12. Ulpianus, On Sabinus, Book XXXVI.
It is established that the husband can have judgment rendered against him for the amount which he is able to pay, but this privilege cannot be granted to his heir;
13. Paulus, On Sabinus, Book VII.
Because a privilege of this kind is a personal one, and is extinguished by the death of the party directly interested.
14. Ulpianus, On Sabinus, Book XXXVI.
The case is different where a defender appears, for it is held that he properly defends the husband if he merely gives to the wife the amount which she could have recovered if she had brought suit against her husband himself.
(1) Pomponius very properly asks, in the Sixteenth Book On Sabinus, where a husband had made an agreement with his wife that judgment should not be rendered against him to the extent of his resources, but for the entire amount; whether such an agreement should be observed. He denies that it should be observed. This opinion seems to me to be correct, for it is better to hold that such an agreement was made contrary to good morals, as it is apparent that it was entered into in violation of the respect which a woman should show to her husband.
15. Paulus, On Sabinus, Book VII.
In order to determine the amount of the pecuniary resources of the husband, consideration must be paid to the time when the case was decided.
(1) Although the heir of the husband may have judgment rendered against him for the entire amount of the dowry, he will still be entitled to any set-off having reference to pecuniary obligations of the wife, in order to reduce his liability; as, for instance, where donations have been made by the husband of property appropriated by his wife, or expenses incurred, but he will not have the right to punish her for bad behavior.
(2) The same privilege will be enjoyed by the father-in-law; that is to say, he may have judgment rendered against him to the extent of his resources, when his daughter-in-law brings an action of dowry against him;
16. Pomponius, On Sabinus, Book XVI.
For the reason that a father-in-law occupies the place of a parent.
17. Paulus, On Sabinus, Book VII.
On the other hand, if a father-in-law is sued by the husband on his promise, the question may be asked whether he will be entitled to this same privilege. Neratius and Proculus state in the Book of Parchments that this is just.
(1) Moreover, where the wife is sued on her promise, the better opinion is that she can protect herself by an exception. Proculus also says the same thing; just as is the case where an exception is granted her when she belongs to a partnership, although she is liable under the
Civil Law.
(2) Neratius and Sabinus hold that where, in an action on dowry, a judge, through ignorance of the law, renders a decision against a husband for the entire amount, he can make use of an exception on the ground of fraud, and that he will be protected by it.
18. Pomponius, On Sabinus, Book XVI.
Labeo says that the children of a woman who are the heirs of their father also can have judgment rendered against them only to the extent of their resources.
(1) Although in matters relating to the dowry, a husband is not only liable for fraud but also for negligence; still, when, in an action on dowry inquiry is made as to his pecuniary responsibility, fraud is only taken into consideration, because in the management of his own affairs he is not liable for negligence. I think that, although fraud can only affect him if he is not solvent, this merely applies to his inability to pay the amount due to his wife, and not to the fraud of which he may have been guilty toward anyone else.
Ofilius, however, says that if the dotal property should be lost through the bad faith of the husband, and he is in other respects insolvent, even though he has not committed fraud to render himself insolvent, still, judgment should be rendered against him solely for the amount of the dotal property with respect to which he has acted fraudulently; just as if it was by bad faith that he had rendered himself pecuniarily responsible. If, however, the husband was not guilty of either fraud or negligence with reference to the loss of the dotal property, only those rights of action to which the husband would be entitled on this ground should be assigned to his wife; as, for instance, those for theft, or unlawful damage.
19. Ulpianus, On Sabinus, Book XXXVI.
But if a woman obtains a divorce, and issue is joined in an action on dowry, and she returns to her husband, the marriage having been re-established, the action will be terminated, and everything will remain in its former condition.
20. Paulus, On Sabinus, Book VII.
Although a woman may have received her dowry during marriage not for the purpose of paying her debts, or buying certain desirable lands, but in order that she might assist her children by a former husband, or her brothers, or her parents, or ransom them from the hands of the enemy, for the reason that these objects are just and honorable, the dowry will not be held to have been improperly received, and therefore, in accordance with justice, it was rightly paid to her.
This rule also must be observed with reference to a daughter under paternal control.
21. Ulpianus, Disputations, Book III.
Where a husband has expended money belonging to the dowry for the purpose of ransoming from robbers any slaves necessary for the service of his wife, or in order that the woman may release from imprisonment one of her necessary slaves, he will be liable for what has been expended; and if only a portion of the dowry has been used, he will be liable for that portion, but if all of it has been consumed, the action on dowry will be extinguished.
This rule applies with much more force where a father-in-law brings an action on dowry, for an action must be rendered for what has been expended for his benefit, whether the husband himself has done this, or whether he gave the money to the daughter in order that she might do it. If, however, the father should not institute proceedings, but, after his death, his daughter alone brings an action to recover her dowry, it must be held that the same rule will apply; for since an exception on the ground of fraud is included in an action on dowry, as in other bona fide actions; for it may be said (as is also held by Celsus) that this expense is included in an action on dowry, especially if it was incurred with the consent of the daughter.
22. The Same, On the Edict, Book XXXIII.
Where a father gives the dowry, or a stranger who does so contracts for it subject to a certain contingency, as for instance, if a divorce or death should take place, it must be said that the woman will, in any event be entitled to the action which was not mentioned in the agreement.
(1) If, after the marriage has been dissolved, the wife, being under paternal control, uses up the dowry jointly belonging to herself and her father without the consent of the latter, the father will be entitled to an action to obtain the delivery of the dowry to himself, whether his daughter be living or dead.
This rule also applies where the dowry is given to a woman who is likely to waste it. If, however, it was given for good reasons to one who will not be likely to squander it, no action will lie, and after the death of the father, neither his heirs nor the woman can institute proceedings to recover it.
(2) If, after the marriage has been dissolved, the woman, having been deceived, accepts by novation a debtor who is insolvent, she will, nevertheless, be entitled to an action on dowry.
(3) Where a father, during the absence of his daughter, institutes proceedings to recover the dowry, even though he fails to give security for the ratification of his act, the right to sue should be denied the daughter, whether she becomes her father's heir, or whether she receives from him, by way of legacy, an amount equal to her dowry. Therefore, Julianus stated in several places, that what was given her
by her father should be set off against her dowry, and that it would be to her profit if she received as much from him as was due from her husband as dowry, and which he had paid her father.
(4) If the father should not be permitted to remain at Rome, where the suit is brought for the dowry, on account of some sentence imposed upon him, the amount of the dowry must be paid to the daughter, provided she furnishes security that her father will ratify her act.
(5) It is necessary for the daughter to give her consent to her father bringing the action, at the time when issue was joined. In accordance with this, if she says that she consents, and, before issue is joined she should change her mind, or even be emancipated, the action brought by her father will be of no effect.
(6) We also agree with Labeo that sometimes an action should be refused the father, if his character is so degraded that it is to be feared that he will squander the dowry after receiving it; therefore the authority of the judge should be interposed, as far as he can do so, to protect the best interests of both daughter and father. If, however, the daughter conceals herself in order to avoid giving her consent to a father of this kind, I certainly think that an action should be granted the father, but only after proper cause has been shown. For what if the daughter, through motives of filial reverence, should agree with her father to be absent, why should we not hold that an action should not be granted him? But if the father is such a person that his daughter ought by all means to give her consent, that is to say, is a man of an excellent reputation, and his daughter is a woman of fickle character, or very young, or too much under the influence of an undeserving husband; it must be said that the Prætor should rather favor the father and grant him an action.
(7) Where either a husband or a wife becomes insane during marriage, let us consider what should be done. And, in the first place it should be observed that there is no doubt whatever that the one who is attacked by insanity cannot send notice of repudiation to the other, for the reason that he or she is not in possession of their senses. It must, however, be considered whether the woman should be repudiated under such circumstances. If, indeed, the insanity has lucid intervals, or if the affliction is perpetual but still endurable by those associated with the woman, then the marriage ought by no means to be dissolved. And where the party who is aware of this fact, and of sound mind, gives
notice of repudiation to the other who is insane, he will, as we have stated, be to blame for the dissolution of the marriage; for what is so benevolent as for the husband or the wife to share in the accidental misfortunes of the other?
If, however, the insanity is so violent, ferocious, and dangerous that no hope of recovery exists, and it causes terror to the attendants; then, if the other party desires to annul the marriage either on account of cruelty which accompanies the insanity, or because he has no children and is tempted by the desire of having offspring, the said party, being of sound mind, will be permitted to notify the other, who is in-
sane, of repudiation; so that the marriage may be dissolved without reproach attaching to either, and neither party will suffer any damage.
(8) Where, however, the woman is affected with the most violent form of insanity, and the husband, through crafty motives, is unwilling to annul the marriage, but treats the unfortunate condition of his wife with scorn, and shows no sympathy for her, and it is perfectly evident that he does not give her proper care, and makes a wrongful use of her dowry; then, either the curator of the insane woman or her relatives have the right to go into court in order to require the husband to support her, furnish her with provisions, provide her with medicine, and omit nothing which a husband should do for his wife, according to the amount of the dowry which he received.
If, however, it is evident that he is about to squander the dowry, and not enjoy it as a man ought to do, then the dowry shall be sequestered, and enough taken out of it for the maintenance of the wife and her slaves, and all dotal agreements made between the parties at the time of the marriage shall remain in their former condition, and be dependent upon the recovery of the wife, or the death of either of the parties.
(9) Moreover, the father of the woman who has become insane can legally begin an action for the restoration of the dowry to himself, or to his daughter; for although she, being insane, cannot give notice of repudiation, it is certain that her father can do so.
(10) If after the marriage has been dissolved, the father should become insane, his curator can bring suit to recover the dowry with the consent of his daughter; or, where there is no curator, his daughter will be allowed to bring it, but she must give security for the ratification of her act.
(11) It must also be held that, where the father is taken captive by the enemy, an action to recover the dowry should be granted to the daughter.
(12) Let us now pass to another subject, and inquire against whom the action on dowry will lie. It is clear that it will lie against the husband himself, whether the dowry was given to him, or to another with his consent, whether the latter was subject to his control or not. Where, however, the husband is subject to paternal authority, and the dowry is given to his father-in-law, then suit must be brought against the father-in-law. It is evident that if it was given to the son, or has been given by the direction of his father-in-law, the latter will still be absolutely liable. But if it is given to the son, but not by the direction of the father, Sabinus and Cassius gave it as their opinion that an action could, nevertheless, be brought against the father, because the dowry is held to have come into the hands of him who has the peculium. It will, however, be sufficient for judgment to be rendered against him for the amount of the peculium, or to the extent to which the property of the father has been benefited.
If, however, the dowry has been given to the father-in-law, he cannot institute proceedings against the husband unless the latter becomes the heir of the father.
(13) When a woman makes a mistake as to the condition of her husband, and thinks that he is a freeman while, in fact, he is a slave, some preference must be shown her with respect to the property of her husband; for example, if there are other creditors, she must be preferred in case an action de peculio is brought, and if the slave owes anything to his master, the woman shall not be preferred to him, except with reference to what was either given by way of dowry, or purchased with money forming part of it, since property of this kind is dotal.
23. Paulus, On the Edict, Book XXXVI.
And where anything has been expended on property belonging to the dowry, and no account is given of the same by the woman, an exception on the ground of bad faith will be available.
24. Ulpianus, On the Edict, Book XXXIII.
If, during the existence of the marriage, the wife desires to institute proceedings on account of the impending insolvency of her husband, what time must we fix for her to claim the dowry? It is settled that it can be demanded from the time when it is perfectly apparent that the pecuniary resources of the husband are not sufficient for the delivery of the dowry.
(1) If the wife should institute proceedings after her husband has been disinherited, the better opinion is that the demand for the dowry should begin to date from the time that the heir entered upon the estate of the father of her husband.
(2) Whenever security should be given to a wife for the payment of her dowry, after a certain date, if her husband cannot furnish security, then the advantage arising from the enjoyment of the dowry during the intermediate time having been deducted, judgment should be rendered against him for the remainder. If, however, the husband should refuse to give security when he is able to do so; Mela says judgment should be rendered against him for the entire amount, and no account should be taken of any deduction growing out of the benefit obtained during the intermediate time.
It is, therefore, a part of the duty of the judge to release the husband if security is furnished, or to render judgment against him, after having taken the set-off into consideration. This, indeed, is the practice at present, nor is a woman permitted to say that she prefers to suffer delay rather than submit to a reduction in the amount to be paid.
(3) Whether the dowry is at the risk of the husband or the wife, the husband must, nevertheless, pay it within the time established by law.
(4) Where a husband, with the consent of his wife, manumits slaves forming a part of the dowry, even if his wife intended to donate the slaves to him, he will not be liable for the expenses incurred in giving them their freedom; but if this was a business transaction carried on between them, he will be compelled by the court to give security to restore to his wife anything which comes into his hands from the property or the obligations of the freedmen.
(5) If the husband should be cruel to the dotal slaves, let us see whether an action can be brought against him on this account. And, in fact, if he is only cruel to the slaves of his wife, it is settled that he will be liable on this account; but if he is by nature cruel to his own slaves, it must be said that his immoderate severity should be checked by an order of court; for although a wife cannot require from her husband greater diligence than he employs in his own affairs, still, such cruelty as is reprehensible when exhibited with reference to his own property must be restrained with reference to that of others, that is to say, with respect to the slaves composing the dowry.
(6) Where a wife lends property belonging to her husband, and it is lost, it should be considered whether she must permit this to be set off against her dowry; and I think that if her husband forbade her to lend it, the deduction should at once be made; but if he did not permit her to do so, the judge can grant her a reasonable time to return it, if she gives security.
(7) When a portion of the property of a wife should be confiscated, she will have a right of action to recover the remainder of her dowry. I also hold that if a portion of the dowry has been confiscated alter issue has been joined, it will be sufficient for the judge to issue an order compelling the husband to restore the remainder. If, however, the entire dowry has been confiscated, the right of action will be extinguished.
25. Paulus, On the Edict, Book XXXVI.
Where a dowry is given to a son under paternal control without the order of his father, an action de peculio will lie; but where expenses have been incurred by the son, or an account of property given by him, or because of articles belonging to the peculium having been appropriated by the wife, the peculium is increased; as the father acquires a right of action derived from the person of his son, and hence everything included in the peculium must be given to the wife, if there still remains anything due to her.
(1) The husband, when restoring the dowry, must furnish security against fraud and negligence. If he has acted fraudulently to avoid making restitution, judgment shall be rendered against him for the amount which the woman swears to in court, because no one should retain property belonging to us against our consent.
(2) If the dotal property becomes deteriorated after a divorce, and the husband is in default in returning the dowry, he shall, under all circumstances, be liable for the depreciation in value.
(3) Where slaves that constitute part of the dowry take to flight, the husband must give security to pursue them, as a good citizen should do, and to restore them.
(4) Where a husband rents a tract of dotal land for five years, and after the first year a divorce takes place; Sabinus says that he is not obliged to return the land to his wife, unless she gives security to indemnify her husband if judgment should be rendered against him for anything that occurs after the first year of the lease; and he must give
security to his wife to pay to her everything which he obtained under the lease, except the rent of the first year.
26. The Same, On the Edict, Book XXXVII.
Where the husband has once been in default, and his wife refuses to accept a dotal slave after he has been tendered by him, and the slave afterwards dies; neither the husband nor his heir will be liable for the value of said slave, nor will he be liable for damages, because his wife refused to accept the slave after her husband had tendered him.
27. Gaius, On the Provincial Edict, Book XL
If the wife should die after a divorce, and her heir should bring an action for the dowry against her husband, or his father, it is held that the same rules will apply with reference to the restoration of the dowry, as are ordinarily applicable where the woman herself institutes proceedings.
28. Ulpianus, Institutes, Book I.
It is held that the husband can also act when he has a right to recover anything from his wife; for instance, if he has lost money on her account either because he has expended it for her, or paid it out under her direction. But if he has not lost anything thus far, for example, where he is conditionally liable, he is not yet considered qualified to proceed.
29. The Same, Disputations, Book III.
Whenever a father gives a dowry and stipulates for its return, he does not transfer the right of action for the dowry to her person unless it was agreed that this shall be continuous. But if he intended to stipulate for the intervening time, he cannot do so without the consent of his daughter, even though she may be under his control; because he cannot make the condition of the dowry worse unless she consents. It is clear that if he gave the dowry before marriage, he can stipulate with reference to the interval, even before marriage, and without the consent of his daughter.
(1) Where anyone gives a dowry in behalf of a woman, and agrees that it shall be paid to him when the marriage is dissolved, no matter in what way this is done, and the husband afterwards pays the wife her dowry, it is most justly held that an action for the recovery of the dowry will, nevertheless, lie against the husband in favor of the party who gave it.
30. Julianus, Digest, Book XVI.
A woman who is married a second time is not prevented from instituting proceedings against her first husband for the recovery of her dowry.
(1) Whenever, through the fault of the husband, it happens that the dowry is not demanded from the father-in-law, or from anyone else who promised it in behalf of the wife; or where the daughter died dur-
ing marriage, or where, having become the mother of a family, she appointed as heir the party who promised the dowry for her; it is well settled that the husband is not liable for anything more than to release them from the obligation.
31. The Same, Digest, Book XVIII.
If the husband has been convicted of a criminal offence, and a part of his property is confiscated, the Treasury must pay his creditors, among whom his wife is included.
(1) Where a father, having promised two hundred aurei to his daughter as a dowry, agreed that no more than a hundred should be demanded of her, and the marriage having been dissolved, he brings suit for the hundred aurei, concerning which the agreement was made that they should not be claimed, they are not understood to form part of the dowry. Where, however, after the death of the father, the husband brings an action against his heir, this sum will also be included in the dowry.
(2) If an agent appointed by the father should bring an action for the dowry with the consent of the daughter, and the father should die after a judgment has been obtained, the right of action to enforce the judgment will vest to the daughter rather than in the heirs of the father.
(3) Where the dowry has been given to the father, and one of the sons of the latter has been appointed heir to a certain portion of his estate under a condition, and while the condition is pending his co-heirs pay the dowry to the woman in proportion to their respective shares, the said son will be released from liability for payment of his part of the dowry, as he will not be entitled to an action against his co-heirs for the recovery of his share of the money.
(4) Where a woman receives a tract of land as her dowry, but no account of the crops have been taken in proportion to the time during the year when she was not married, she can, nevertheless, bring the action, because she received by way of dowry less than she was entitled to, for this has reference to an increase of dowry; just as if she had not received the offspring of slaves, or any legacies or inheritances, which had been acquired by her husband through dotal slaves after a divorce had taken place.
32. The Same, On Urseius Ferox, Book II.
If a former husband, as a debtor of his wife, should promise the delivery of the dotal property to her second husband by way of dowry, the amount of the dowry will not be any more than the pecuniary resources of the first husband will justify.
33. Africanus, Questions, Book VII.
A woman promised a certain sum of money by way of dowry, and produced parties who stipulated that a portion of it should be paid to them, in case the marriage was dissolved. The woman died before any dowry had been given, after appointing her husband her heir, and he
entered upon her estate, which proved to be unprofitable. He will, nevertheless, be liable to the parties with whom the stipulation was made, as, by entering upon the estate of the woman who was his debtor he is understood to have repaid himself; and it makes no difference, so far as he is concerned, that the estate was insolvent, since he is liable to the other creditors.
34. The Same, Questions, Book VIII.
Titia obtained a divorce from Seius. Titius stated that she was under his control, and demanded that the dowry should be delivered to him, while she asserted that she was her own mistress, and wished to bring an action for the recovery of the dowry. The question arose what course the judge ought to take. I answered that he should refuse an action to the father, unless he could prove that his daughter was not only under his control, but had also given her consent to the suit, just as he should be refused even though he was able to prove that his daughter was under his control.
35. Marcianus, Institutes, Book X.
A freedwoman, who is divorced from her patron with his consent, can bring an action against him for the recovery of the dowry which she gave him.
36. Paulus, On Adultery, Book II.
Where the husband is not pecuniarily able to pay the dowry and it is confiscated, judgment should be rendered against him in favor of the Treasury for the amount which he is able to pay, in order that the woman may not be punished to the injury of the husband.
37. Ulpianus, Opinions, Book II.
A father is held to have received the dowry with the consent of his daughter, when the latter has no good reason to advance in opposition to his claim, and especially if she has afterwards been endowed by him with a larger sum.
38. Marcellus, Opinions.
Lucius Titius, while under paternal control, married Mævia with the consent of his father, and the latter received the dowry. Mævia then served notice of repudiation on Titius, and his father afterwards, in the absence of his son who had been repudiated, entered into an engagement of betrothal with her in the name of his said son. Mævia then served notice of the repudiation of the betrothal, and married another man. I ask if Mævia should bring an action for the recovery of her dowry against Lucius Titius, her former husband, to whom the dowry was left as heir to his father, and it should be proved that the marriage was dissolved through the fault of the woman, whether the dowry could be retained by the husband on the ground that she was to blame? Marcellus answered that even if Lucius Titius should be sued
as the heir appointed by his father, still, if he had not consented to the betrothal, the fault of the woman should be punished by a fine.
39. Papinianus, Questions, Book XL
Where a husband and a wife accuse one another in court of bad conduct, and the judge declares that both of them have given cause for repudiation, the decision should be understood to mean that, as both had treated the law with contempt, neither can claim its benefit, as the offence of each is atoned for by that of the other.
40. The Same, Questions, Book XXVIII.
After the dowry was given and the marriage contracted, the father, with the consent of his daughter, stipulated that the dowry should be returned to him in case of divorce. If the condition of this stipulation was complied with, and the daughter should afterwards die without issue, the father would not be prevented from suing on the stipulation; but if he wished to do so during the lifetime of his daughter, he could be barred by an exception.
41. The Same, Questions, Book XXXVII.
Where a father, ignorant that his daughter has been divorced, pays the dowry to her husband in compliance with his promise, the money can be recovered, not by the action for the payment of what was not due, but by the action on dowry.
42. The Same, Opinions, Book IV.
Where a father who has given a dowry for his daughter is banished to an island, an action for its recovery can be brought by the daughter. Moreover, if the father has been convicted after a divorce has taken place, the action on dowry can also be brought by the woman, where the father has not already brought it with her consent.
(1) It is held that the crops of land given by way of dowry and gathered in good faith, and which have been used to pay the expenses of marriage, before the question as to the freedom of the wife has been raised, even though it should afterwards be established that she was a slave, cannot be recovered. It is proper that expenses which are necessary and useful, and which have been incurred with reference to land which appeared to belong to the dowry, should be set off against the profits, and that anything in excess should be restored.
(2) Where a father, after the death of his daughter during marriage, brings an action under a stipulation, to collect the interest on money which has been paid by way of dowry, it is held that his son-in-law, who stipulated for the interest on the remaining part of the dowry, can justly claim a set off against the amount which is due, if he supported his wife at his own expense; otherwise, if she was supported by her father, the stipulation for the interest, being void, will not secure to the son-in-law the benefit of the set-off.
(3) If, after a divorce, the wife returns to her husband, the judgment obtained on a stipulation which a stranger who gave the dowry
entered into will not be annulled, nor can a release be ordered by the court.
43. Scævola, Questions, Book II.
Where a husband has judgment rendered against him for a sum which he is able to pay, and he has claims equal to, but not greater than the amount of the dowry, he will not be compelled to assign his rights of action.
44. Paulus, Questions, Book V.
If a father-in-law, appointed heir by his son-in-law, enters upon his estate, and the father dies, his daughter can bring an action on dowry, so Nerva and Cato hold; and this opinion is also stated by Sextus Pomponius in the Fifth Book of the Digest of Aristo. Pomponius, in the same place, agrees with Aristo. I, however, will say that if the father should emancipate his daughter, he also can be sued by her.
(1) Lucius Titius promised Gaius Seius a hundred aurei by way of dowry for his daughter, and it was agreed between Gaius Seius and Lucius Titius, the father of the woman, that the dowry could not be demanded of the husband during the lifetime of Lucius Titius, that is, the father of the woman. The marriage was afterwards dissolved by a divorce through the fault of the husband, and the father of the woman, having died, appointed other heirs, after disinheriting his daughter. I ask whether the husband could collect the dowry from the heirs of his father-in-law since he was obliged to return it to the woman?
I answered that since the daughter was entitled to an action to recover her dowry, as other heirs had been appointed by her father, her husband would be required either to surrender the actual dowry to her, or assign her his rights of action, and that the heirs of the father-in-law would not have a right to plead an exception against him; since it would be absurd for a party to be considered guilty of bad faith when he demands a sum of money to be refunded, not to him whom he sued, but to another.
On the other hand, if the divorce had taken place after the death of the father, and before the dowry had been demanded, the husband would be excluded from bringing an action for the dowry, which should not be admitted. But even if the daughter had been appointed heir to a part of her father's estate, the husband should bring suit against her co-heirs for their individual proportions of the dowry, and either return to the woman what he collects, or assign to her his rights of action.
45. The Same, Questions, Book VI.
Gaius Seius, the maternal grandfather of Seia, who was under paternal control, gave a certain sum of money by way of dowry to Lucius Titius, her husband, and inserted in the dotal instrument the following agreement and stipulation: "If a divorce should take place between Lucius Titius, the husband, and Seia, without her fault, all the dowry shall be returned to Seia, his wife, or to Gaius Seius, her maternal grandfather".
I ask, if Seius, the maternal grandfather, should die immediately after making this agreement, and Seia should subsequently, without being to blame, be divorced during the lifetime of her father, under whose control she was, in favor of whom an action would lie under the agreement in the stipulation, the heir of the maternal grandfather, or of his granddaughter. I answered that the stipulation would seem to be void, so far as the granddaughter personally was concerned, as the maternal grandfather made the stipulation in her favor; for, since this is true, a right of action would be held to lie in favor of the heir of the stipulator, whenever the woman was divorced.
It must be said, however, that the dowry can be paid to Seia, even though no action will lie directly in her favor; just as if her grandfather had stipulated that it should be given to him, or to someone else. The granddaughter ought, however, on account of the agreement of her grandfather, to be permitted to bring an equitable action to prevent her from being defrauded of the benefit of the dowry; or recourse to this proceeding should be had because of the favor conceded to marriage, and especially on account of the affection existing between the parties.
46. The Same, Questions, Book XIX.
Where a person promised a dowry to a wife by a stipulation, and bequeathed certain property to her by a will, but under the condition that she should not claim the dowry from his heir, she was unable to receive the property bequeathed to her. I answered that an action on dowry against the heirs should not be denied the woman.
47. Scævola, Questions, Book XVII.
Where a woman commits adultery through the agency of her husband, he can retain none of her dowry; for why should a husband disapprove of acts which he himself either previously corruptly caused, or subsequently assented to? If, however, anyone should maintain that, according to the spirit of the law, a husband who afforded an opportunity to his wife to prostitute herself cannot accuse her, his opinion must be held to be correct.
48. Callistratus, Questions, Book II.
If it was stipulated in the dotal instrument that the dowry should remain in the hands of the husband for the benefit of the children, it can also be retained by him for the benefit of the grandchildren.
49. Paulus, Opinions, Book VII.
Mævia, among other property constituting her dowry, also delivered to her husband an instrument calling for ten solidi, which a certain Otacilius had executed in favor of the said Mævia, stating that he would give her ten thousand solidi when she was married; and the husband made no claim to this obligation because he could not do so. The question arose if the dowry should be demanded of the husband, whether he could be compelled also to refund that sum which was
included in the said obligation. I answered that the husband could sue the debtor, as his wife's rights of action had been transferred to him, but that if he could not claim the money without being guilty of bad faith or negligence, he could neither be sued on account of the dowry, nor in an action on mandate.
(1) A tract of land, after having been appraised and given by way of dowry, was taken by a prior creditor on account of its having been pledged. The question arose whether the woman, in case she claimed the value of the dowry from her husband, should be barred by an exception; for it is held that she is not bound, because her father gave her the dowry for herself and she was not his heir. Paulus answered that where the land was evicted without either the bad faith or negligence of her husband, the latter could interpose an exception on the ground of fraud against the woman, claiming the amount of the dowry, as it would evidently be unjust for her to recover the value of the land, as the fraud of the father should only injure the daughter herself.
50. Scævola, Opinions, Book II.
Certain property, after having been appraised, was given by way of dowry, and an agreement was drawn up stating that if the dowry was to be returned for any reason whatsoever, the identical property should be given up, and an account taken of its increase or diminution in accordance with the judgment of a good citizen; and so far as any property which was no longer in existence was concerned, its value should be estimated in accordance with its original valuation.
The question arose whether, in case certain property which the husband had sold was still in existence, it should belong to the woman in accordance with the agreement. I answered that if such property was in existence, and had been sold without the consent of the woman or her subsequent ratification, it must be returned; just as if no appraisement had taken place.
51. Hermogenianus, Epitomes of Law, Book II.
Where property has been appraised, it is at the risk of the husband, even though it may have become deteriorated by the use of the wife.
52. Tryphoninus, Disputations, Book VII.
A husband, after a divorce, through mistake paid a dowry which he had not received. He can recover it, because he can prove that it had not been paid to him, for it can not be exacted from him.
53. The Same, Disputations, Book XII.
If a dowry should be given to a son under paternal control, he himself will be liable to an action on dowry; his father, however, will be liable to one to the amount of the peculium. It makes no difference whether or not the party has the property in the peculium, or holds it as dowry, but judgment should be rendered against him to the extent of his ability to make payment. It is understood, however, that
his ability to pay is dependent upon the amount of the peculium which he had at the time the judgment was rendered against him.
But if an action is brought against the father, whatever the son owes the latter or other persons under his control must be deducted from the peculium; but if an action is brought against the son himself, no deduction can be made of any other debt, when taking into consideration the amount that the son is able to pay.
54. Paulus, On Individual Rights.
The ability of a husband to pay is estimated without the deduction of any debt; and the same rule applies to a partner, a patron, and a parent. Where, however, anyone is sued on account of a donation, her pecuniary resources are estimated after all his debts have been deducted.
55. The Same, On Plautius, Book III.
When a woman brings an action for the recovery of her dowry, after her marriage has been dissolved, she must indemnify her husband where he has given security against the infliction of threatened injury, if she wishes to recover her dowry, so that she may secure her husband against any risk.
56. The Same, On Plautius, Book VI.
If anyone stipulates with a husband as follows: "If, for any reason, Titia ceases to be your wife, you must surrender her dowry"; by this general statement the stipulation becomes effective, whether the woman is taken captive by the enemy, or whether she is banished or reduced to slavery, for in such a clause all such accidents are included.
If, however, the terms of the stipulation are strictly construed, will this apply where the woman dies, or is divorced? It is held to be more equitable that it should apply in case of death.
57. Marcellus, Digest, Book VII.
Where an usufruct is given by way of dowry, and a divorce takes place, the ownership of the property will not vest in either the husband or the wife, and where the restitution of the dowry is to be made, the husband must give security that, as long as he lives, the woman and her heirs will be allowed to enjoy the usufruct. I doubt whether this addition with reference to the heirs is correct, for it makes a difference in what way the usufruct was given, as dowry; since if the woman is to have the profits, the usufruct at her death will pass to her husband, to whom the ownership of the property belongs, and she will leave no right in the same to her heir, for the usufruct will then be due to her husband; as it is not customary for it to pass to the heir.
But if the woman granted the usufruct with the land to her husband, it must be restored by him to her heirs, since it passes along with property to her heirs, if her husband was not in default in surrendering it. But, if the property has been alienated, or anyone had given the usufruct of his land, by order of the wife, to her husband as dowry, it must first be considered in what way it can be restored to
the woman. This may be accomplished either by means of security given by the husband, or he can assign his rights to his wife as far as he is able to do so, and allow her to enjoy the property; or he can make some arrangement with the owner of the same, so that, with the consent of the latter, the usufruct can be transferred to the woman, as he can either grant her the usufruct of the land or give her something instead of it, as may be agreed upon between them. For, suppose that the woman should sell the usufruct to the owner of the property; in this instance, it would not be inequitable for the husband to be compelled to transfer the usufruct, since he can even be sued by the heir of the woman, for if he had not been in default in making the transfer, she could have left the price of the usufruct to her heir. If, however, she did not have the power to sell the usufruct to the owner of the property, the husband would be forced to allow the heir to gather the crops, which privilege he was obliged to grant to the woman herself.
58. Modestinus, On Discoveries.
Where a dotal slave is appointed heir by anyone, he can either enter upon the estate, or reject it, by order of the husband. But in order to avoid the husband from being liable to an action on dowry, either through too readily rejecting an estate, or rashly accepting it, when its condition is unknown, it is advised that the woman should be asked, in the presence of witnesses, whether she wishes to reject or accept the estate. If she should say that she rejects it, the slave can very readily repudiate it, by the order of her husband. If, however, she prefers to accept it, the slave must be restored by the husband to the wife under the condition that when, by her order, he enters upon the estate, he shall again be transferred to her husband. In this way provision is made for any anxiety the husband may experience, and the wish of the wife will be complied with.
59. Julianus, On Urseius Ferox, Book II.
The husband of my daughter, who was emancipated, and ill at the time, sent her a notice of repudiation, so that, after her death, he could the more readily deliver her dowry to her heirs than to me. Sabinus said that an equitable action should be granted me for the recovery of the dowry, and Gaius holds the same opinion.
60. Proculus, Epistles, Book V.
Where a daughter under paternal control, who was married, dies, and her father pays her funeral expenses, he can immediately recover them by means of an action, even though the son-in-law was obliged to return the dowry after a certain date; and after he has received the expenses of the funeral, the remainder of the dowry can be paid at the time agreed upon.
61. Papinianus, Questions, Book XI.
A husband manumitted a dotal slave without the consent of his wife. He was then appointed sole heir by the freedman to a share of
the estate which he could, and should have acquired as patron, and ought have returned to his wife; the remaining portion, however, she will be entitled to recover by means of a dotal action, provided she was opposed to the manumission of the slave.
62. Ulpianus, On the Edict, Book XXXIII.
If a husband should manumit dotal slaves with the consent of his wife, it is just as if she intended to donate them to him, and he will not be liable to any claim on account of having given them their freedom.
63. Paulus, On the Lex Julia et Papia, Book II.
In this instance, the slave ceases to be a part of the dowry, as where anyone is permitted to donate a slave for the purpose of manumitting him, it is the same as if the slave was donated, because permission was given to manumit him.
64. Ulpianus, On the Lex Julia et Papia, Book VII.
Where, however, a husband who is transacting the business of his wife, with her consent, manumits a dotal slave, with her permission, he must restore to his wife whatever may have come into his hands through the said slave.
(1) If he imposes any conditions upon the slave in consideration of his freedom, he must be responsible for this to his wife.
(2) It is evident if any services should be performed by the freedman for the husband, and no appraisement of them should be made, it will not be just for the husband to pay anything to the wife on this account.
(3) But if any charge was imposed upon the freedman after manumission, this must be accounted for to the wife.
(4) Where, however, the freedman is the debtor of the husband, or has rendered himself liable for any other obligation, he must assign the claim which he holds against him to his wife.
(5) He is also compelled to deliver to his wife any of the property of the freedman, which may come into his hands, provided he acquired it in the capacity of patron. If, however, he acquires it in any other way, he is not compelled to transfer it, for he is not liable to his wife for anything which the freedman gives to him gratuitously, but only for what he acquires, or can acquire under his rights as patron.
It is evident that if he is appointed heir by the freedman to the greater portion of the debt which the latter owes him, he will not be responsible for the excess; and if the freedman should constitute him his heir when he is not indebted to him, he will not be bound to give anything to his wife.
(6) He must, however (as the law declares), give "whatever may come into his hands". We understand this to mean whatever he collects, or can collect, because a right of action to do so is granted him.
(7) It is added in the law that the husband shall be liable where he has committed any fraudulent act to prevent the property from coming into his hands.
(8) If a patron disinherits his son, and the property of the freedman should be obtained by the latter, it must be considered whether the heir will be liable on this ground. And, also, where nothing comes into the hands of the patron himself, or into the hands of his heir, how can be become liable on this account?
(9) The law only speaks of the husband and his heir. Nothing is mentioned in it with reference to a father-in-law and his successors; and Labeo notices this as having been omitted. In these instances, therefore, the law is defective, and not even a prætorian action can be granted.
(10) Where the law says that the husband shall give up the money which he has received, it is evident that it did not intend that he should surrender the estate itself, but only the value of the same, or of the property of the freedman; unless the husband should prefer to surrender the property itself, and this should be admitted as the more favorable construction.
65. Scævola, Questions Publicly Treated.
This action can be brought by the wife even during marriage.
66. Javolenus, On the Last Works of Labeo, Book VI.
Servius says that the husband is responsible for fraud and negligence with reference to all the property belonging to the dowry, which he has received, excepting money. This is also the opinion of Publius Mucius, for he decided in the case of Licinnia, the wife of Gracchus, whose dotal property had been lost in the sedition in which Gracchus was killed; as he held that the property should be restored to Licinnia, for the reason that Gracchus was to blame for the sedition.
(1) A husband gave money to his wife's slave for the purchase of clothing, and this having been procured, a divorce took place within a year. It was held by Labeo and Trebatius that the clothing should be returned to the husband in the condition in which it was after the divorce. The rule of law would be the same if the husband had purchased the clothing and given it to the slave. If, however, the clothing should not be returned, the price of it can be set off by the husband against the dowry.
(2) A father ordered his daughter, who was under his control, to return her dowry to her father-in-law, a divorce having taken place; and after a part of the dowry had been paid, the father died. Labeo and Trebatius think that the remainder, if it had not been delegated or promised to be renewed to the father-in-law, should be paid to her; and this is correct.
(3) You received, by way of dowry, certain slaves whose value had been appraised, and an agreement was then entered into that, in case of a divorce, you should return slaves of equal value, but no mention was made of the offspring of female slaves forming part of the dowry. Labeo says that this offspring will belong to you, because it
should be yours on account of the risk of losing the slaves which you are obliged to assume.
(4) A woman had a hundred aurei in the hands of her husband, as dowry, and a divorce having taken place, she stipulated through a mistake of her husband that he should be liable to her for two hundred. Labeo thinks that her husband will only be responsible for the dowry, whether the woman stipulated for the amount honestly or dishonestly. I adopt this opinion.
(5) A wife, after her divorce, received part of her dowry, and left part in the hands of her husband, and afterwards married another man, and then, having become a widow, she returned to her first husband, to whom she gave a hundred aurei, by way of dowry, without mentioning the money which remained out of the former dowry. If another divorce should occur, Labeo says that the husband will be compelled to return the remainder of the first dowry, under the same terms that he would have returned it if the first divorce had not taken place between them, as the remainder of the former dowry was transferred to the obligation of the second one. This I think to be correct.
(6) When a husband, without the order of his wife, during marriage, releases his father-in-law from the dowry which he had promised, Labeo says that this will be at the risk of the husband, even though it was done on account of the poverty of the father-in-law. This is true.
(7) Where anyone promises a dowry to a husband in behalf of his wife, and then, after having appointed the woman his heir, dies, Labeo says that the woman must assume the risk of that part of the dowry for which the husband was liable, for the reason that it would not be just for her to be enriched at the expense of her husband, and to hold him responsible for what he could not have exacted from her. I think that this is correct.
67. Pomponius, Epistles, Book XX.
Whatever a husband must restore to his wife out of the peculium of a slave will form part of the dowry which is to be given up, and therefore the husband will be liable for fraud and negligence in the acquisition or preservation of the said peculium; and the profits obtained from the same, just as those of any other dotal property will belong to the husband.
THE DIGEST OR PANDECTS. BOOK XXV.
TITLE I.
CONCERNING EXPENSES INCURRED WITH REFERENCE TO DOTAL PROPERTY.
1. Ulpianus, On Sabinus, Book XXXIX.
Expenses are either necessary, useful, or incurred for purposes of
pleasure.
(1) Those expenses are called necessary which are made through necessity. Where, however, no necessity exists, they come under another head.
(2) With reference to necessary expenses, it must be remembered that they only decrease the dowry when they are incurred on account of it. When, however, they are not incurred with reference to the dowry, they cannot be taken out of it.
(3) Labeo says that dikes built in the sea or river come under the head of necessary expenses. Where a mill or a granary, which is required, is built, it should be included among necessary expenses. Hence Falcinius says that if the husband should rebuild a house which was useful to his wife, and which was falling into ruin; or if he should replant an olive-orchard, where the trees had blown down; or if he should enter into a stipulation providing against the occurrence of threatened injury:
2. Paulus, On Sabinus, Book VII.
Or should expend money for the cure of slaves who are ill;
3. Ulpianus, On Sabinus, Book XXXVI.
Or if he should plant vines, or takes care of trees or nurseries for the benefit of the land, he will be held to have incurred necessary expenses.
(1) Generally speaking, we make a distinction, and in fact there is much difference where expenses are incurred to the permanent advantage of the land, and where this is done only for the present time, or on account of the crop for the present year. In the latter instance, the expenses ought to be set off against the crop, but where they have not been incurred temporarily, they should be reckoned among those that are necessary.
4. Paulus, On the Edict, Book XXXVI.
Upon the whole the judge shall hold the husband responsible for whatever was omitted by him, to the extent that it was to the interest of his wife to have such expenses incurred, as they are included in those that are necessary, but with this difference, namely: an account
of the expenses will be allowed, if the property has not been preserved, and he will not be responsible where they were not incurred, unless the property was destroyed in consequence. Therefore, if he should support a house which is about to fall, and it is burned, he can recover the expenses; but if he did not do this, and the house should be burned, he will not be liable for anything.
5. Ulpianus, On Sabinus, Book XXXVI.
Where it is stated that necessary expenses diminish the dowry, this (as Pomponius says) must be understood to mean not that the property itself is actually diminished, as for instance, land or any other dotal property, for it is absurd to hold that any diminution of the same can occur on account of money expended; but it signifies that the said property ceases to become dotal either wholly, or in part. Hence the husband will remain in possession of it until his claim is satisfied, for no diminution of the same is effected, by operation of law, but merely a diminution of the dowry takes place. When, therefore, shall we admit that a diminution of the dowry occurs by operation of law? This will be the case where the dowry consists of other property than money, for it is reasonable to admit that a diminution of money can take place. Hence, if certain property, after being appraised, is given by way of dowry, the dowry will be diminished by operation of law to the amount of the necessary expenses incurred. This is said to be applicable to expenses incurred with reference to the dowry itself, but if they are made with reference to other matters they do not diminish the dowry.
(1) Where the wife pays such necessary expenses, can we say that the dowry is increased, or should it be held to remain unimpaired? Where the dowry consists of money, I have no doubt that it should be held to have increased.
(2) Where the entire dowry is paid without any account having been taken of expenses, it must be considered whether the amount which it is customary to set off against necessary expenses can be recovered by a personal action. Marcellus holds that there is ground for such action, and although many authorities deny that this is the case, still, on account of equity, the opinion of Marcellus should be upheld.
(3) Useful expenses are those which the husband incurs for the benefit of the property, and which improve the property of the wife, that is to say, her dowry.
6. Paulus, On Sabinus, Book VII.
For instance, where a new plantation is made on the land, or where the husband adds a bakery or a shop to the house, or teaches the slaves some trade.
7. Ulpianus, On Sabinus, Book XXXVI.
Expenses for the purpose of pleasure are those which the husband incurs to that end, and which are an ornament to the property.
(1) Such expenses do not diminish the dowry by operation of law, as those which are useful do, nevertheless, they can be demanded.
8. Paulus, On Sabinus, Book VII.
Certain authorities hold that a deduction should be made on the ground of useful expenses only where they are incurred with the consent of the wife; for it would be unjust for her to be compelled to sell the property in order to pay the expenses incurred with reference to it, if she is unable to meet them otherwise. This opinion is based upon the highest principles of justice.
9. Ulpianus, On Sabinus, Book XXXVI.
The husband is permitted to demand from his wife expenses incurred for pleasure, if she does not permit him to remove what caused them. For, if the wife desires to retain such improvements, she should refund the amount expended by her husband; or if she does not wish to retain them, she should permit him to remove them, provided they admit of separation. If, however, they cannot be separated, they should be left; for the husband is not allowed to take away any ornaments which he has added to the property, unless by doing so he can make them his own.
10. Paulus, On the Edict, Book XXXVI.
If the property on account of which the expenses were incurred is for sale, such expenses are not classed under the head of pleasure, but of utility.
11. Ulpianus, On Sabinus, Book XXXVI.
Aristo, however, says with reference to expenses incurred for pleasure, that the husband cannot demand them, even if they have been made with the consent of his wife.
(1) Sabinus very properly holds that gifts which are prohibited between husband and wife also extend to expenses incurred on account of the dowry.
12. Paulus, On Sabinus, Book VII.
A judge should not pay any attention to moderate expenses incurred for the purpose of building houses, or for planting and cultivating vines, or for the treatment of slaves who are ill; otherwise a judicial decision would rather seem to have reference to the transaction of business than to matters connected with the dowry.
13. The Same, Abridgments, Book VII.
A husband cannot collect from his wife any tax or tribute paid on account of dotal lands, for these charges should be paid out of the crops.
14. Ulpianus, Rules, Book V.
Necessary expenses are those through which the dowry is diminished, as, for instance, those incurred for the building of dikes, the
diversion of streams, the supporting and repairing of old houses, and the replacing of trees where others have died.
(1) Useful expenses are, for example, such as placing cattle in fields for the purpose of manuring them.
(2) Expenses incurred for pleasure are, for instance, the construction of baths.
15. Neratius, Parchments, Book II.
Where it is stated that necessary expenses incurred with reference to dotal property diminish the dowry, this must be understood to mean where anything is expended on such property over and above what is necessary for its preservation, that is to say, for its benefit. For a man should preserve dotal property at his own expense; otherwise, provisions furnished to dotal slaves, and any moderate repairs of buildings, or even the cultivation of the soil, would diminish the dowry; for all these things are included under the head of necessary expenses. The property itself, however, is understood to yield a certain income, so that you appear not to have expended money upon it, but, after having deducted the expenses, you have received a smaller return therefrom. It is not easy, generally speaking, to decide in accordance with this distinction what expenses should be deducted from the dowry, but they can be estimated in detail according to their nature and amount.
16. The Same, Parchments, Book VI.
And, by all means, any expenses incurred by the husband in harvesting the crops must be paid by him out of his own purse, even though these expenses may have been incurred for the purpose of cultivating the land; and therefore not only those made in gathering the crops are included but also such as are necessary for preserving the property itself, and the husband is entitled to no deduction from the dowry on this account.
TITLE II.
CONCERNING THE ACTION TO RECOVER PROPERTY WHICH HAS BEEN REMOVED.
1. Paulus, On Sabinus, Book VII.
The action having reference to property which has been removed is a peculiar one, and is brought against a woman who was formerly the wife of the plaintiff, for it was not held to be advisable that an action for theft should be brought against her; and certain authorities, like Nerva and Cassius, have thought that she did not commit a theft, because the partnership of married life rendered her, to a certain extent, the owner of the property in question. Others, such as Sabinus and Proculus, hold that she does, in fact, commit a theft, just as a daughter can steal from her father, but that no action for theft is established by law. Julianus very properly adopts this opinion.
2. Gaius, On the Work Entitled, The Edict of the Prætor; Title, Decisions.
For, on account of the honor attaching to marriage, an action against the wife implying infamy is refused.
3. Paulus, On Sabinus, Book VII.
Therefore, if, after a divorce a woman should appropriate the same property, she will also be liable for theft.
(1) Moreover, we can bring an action for theft against a woman where her slave has committed the theft.
(2) It is also possible to bring an action for theft against a woman, if we should become the heir to the party from whom the property was stolen, or if she had stolen from us before we married her. Still, on account of the respect due to persons under such circumstances, in both cases, we hold that only an action for theft to recover the property will lie, and not a penal one based on that offence.
(3) It is also true, as Ofilius says, that all property which the woman has consumed, sold, donated, or used up in any way whatsoever, at the time of the divorce, should also be included in the suit for property appropriated by her.
(4) Where a daughter under paternal control fraudulently appropriates property, Mela and Fulcinius say that an action de peculio should be granted, because it was not considered advisable that she should be liable for theft, or that an action should be brought against her on the ground of property wrongfully appropriated.
If, however, a father, together with his daughter, brings an action on dowry, an action should not be granted him, unless he gives security to defend his daughter for the entire amount, in a suit for property improperly appropriated.
But where the daughter is dead, Proculus says that an action should not be granted against the father, on the ground of property wrongfully appropriated, unless to the extent that he has been pecuniarily benefited by the transaction,
4. Pomponius, On Sabinus, Book XVI.
Or where he has been guilty of fraud in order to prevent the property from coming into his possession.
5. Papinianus, Questions, Book XI.
All equitable actions to recover property wrongfully appropriated, which has come into his hands, can be brought against the father even during the lifetime of his daughter.
6. Paulus, On Sabinus, Book VII.
Atilicinus and Fulcinius say that this action can be granted to a father-in-law against his daughter-in-law.
(1) Whenever a dowry is given to a son under paternal control, the father-in-law cannot bring an action for theft, where property has been appropriated by reason of a divorce.
(2) This action for property wrongfully appropriated is also granted against the husband if he is a son under paternal control, but shall such an action be granted directly against him, or merely with reference to the peculium? We repeat here the same rule which we have already stated applies to a daughter under paternal control.
(3) If the husband should die after the divorce, his heir can bring the action for the recovery of property fraudulently appropriated.
(4) The heir of the woman is also liable in an action of this kind, just as he would be in one for the recovery of stolen property.
(5) Where the marriage is dissolved by the death of the husband, his heir can recover the property either by an action for the partition of the estate, or by one for its production in court. Aristo thinks very properly that he can bring a personal action for restitution against the woman, because the property is unjustly in her possession.
(6) Where a woman appropriates property after the death of her husband, she does not commit theft, because a theft of property belonging to an estate which is not yet in the possession of anyone cannot be committed; and therefore the heir can bring suit to recover the property, or can file a petition claiming the estate.
7. Ulpianus, On Sabinus, Book XXXVI.
A wife is entitled to an action against her husband for the recovery of property fraudulently appropriated, and she can set off the claim in her action against that made by the husband, where he brings suit for the same cause.
8. Pomponius, On Sabinus, Book XVI.
If, when the dowry is paid to the wife or security is given to insure its payment, it should not be stated that the husband shall have a right to bring an action for the recovery of property wrongfully appropriated, he can, nevertheless, bring such an action; for he has a right to do so even where there is no dowry to be returned.
(1) Sabinus says that if a wife does not return the property which she has wrongfully appropriated, judgment shall be rendered against her for the amount which her husband will swear to in court.
9. Paulus, On the Edict, Book LVII.
For it is not just that the husband should be compelled to sell his own property, even for its full value, if he is unwilling to do so.
10. Pomponius, On Sabinus, Book XXXVI.
Therefore, he should not be obliged to furnish any guarantee against eviction, because the affair took place through the obstinacy of his wife.
11. Ulpianus, On the Edict, Book XXXIII.
Marcellus stated in the Eighth Book of the Digest that whether a husband drove his wife, or a wife her husband, from the house, and
removed the property, either would be liable to an action for the recovery of property wrongfully appropriated.
(1) Where anyone institutes proceedings for the recovery of property wrongfully appropriated, if he prefers to tender an oath, his adversary will be compelled to swear that nothing was appropriated at the time of the divorce; provided whoever tenders the oath himself or herself first takes the oath de calumnia.
(2) The husband, as well as the wife, is compelled to take the oath with reference to property wrongfully appropriated. But the father of him or her who appropriated the property is not obliged to be sworn, as it would be unjust for anyone to take an oath relating to the act of another. That party, therefore, is compelled to take the oath who is said to have appropriated the property, and hence the heir of him or her who is said to have wrongfully appropriated it is not compelled to be sworn.
(3) Where anyone desires to tender back the oath which has been tendered him, it has been decided that the Prætor shall not permit this to be done.
12. Paulus, Abridgments, Book VII.
Any more than where someone tenders an oath to a party whom he is suing to recover stolen property, in order to ascertain whether he himself is the thief.
13. Ulpianus, On the Edict, Book XXXIII.
Therefore, Labeo states that a woman is not permitted to tender back an oath; and the Edict of the Prætor is held to establish this.
14. Paulus, On the Edict, Book XXVIII.
In an action for the recovery of property which has been wrongfully appropriated, the husband or the wife shall be permitted to tender the oath with reference to certain property, and to confirm what has been testified to with reference to any other.
15. Ulpianus, On the Edict, Book III.
In a case of this kind it makes no difference whether the parties are living together or separately; since an action for property wrongfully appropriated can even be brought against a woman who has taken it into a house in which she is not living with her husband.
(1) A wife, a daughter-in-law, or the wife of a grandson can steal from her husband, her father-in-law, and the grandfather of her husband, but still she will not be liable for theft unless the son is not emancipated; for, in this instance, the daughter-in-law commits a theft against her father-in-law, and is liable to an action for theft.
16. Hermogenianus, Epitomes of Law, Book II.
Where the property of a husband is confiscated, the wife can only be sued for the simple value of what has been unlawfully appropriated; although, in all other cases, judgment can be rendered against her for fourfold damages.
17. Ulpianus, On the Edict, Book XXX.
Where a concubine wrongfully appropriates property, it is the practice to hold her liable for theft. Consequently, we say that whenever a marriage is void, as, for instance, where a ward marries her guard-
ian, or where matrimony is contracted, contrary to the laws, and in any other case where it is not valid, the action to recover property wrongfully appropriated will not lie, for the reason that it can only be brought where a divorce takes place.
(1) When we speak of property wrongfully appropriated, we have reference not only to that which the woman removes when she forms the intention of obtaining a divorce, but also to such as she removes while she is still married, if, when she leaves her husband, she conceals the property.
(2) Julianus says that not only property which is in existence is included in a suit for wrongful appropriation, but also such as has already ceased to exist. He says that, under these circumstances, a personal action can also be brought for its recovery.
(3) Where a woman wrongfully appropriates property which has been given in pledge to her husband, she will be liable to this action.
18. Paulus, Questions, Book VI.
A personal action for the recovery of such property will also lie in favor of the owner of the same, but he is allowed to choose whether he will bring this, or a real action.
19. Ulpianus, On the Edict, Book XXXIV.
If a woman, at the time of the divorce, introduces thieves into the house of her husband, and removes property by their agency, even if she herself does not handle it, she will be liable to an action for its wrongful appropriation. It is therefore true, as Labeo states, that a wife is liable to this action, even if the property does not come into her possession.
20. Marcellus, Digest, Book VII.
Where a wife herself removes, or makes use of the services of the thief to remove property which her husband purchased in good faith, and does this with the intention of obtaining a divorce, judgment shall be rendered against her in an action for the recovery of property wrongfully appropriated.
21. Paulus, On the Edict, Book XXXVII.
If a woman, despairing of the life of her husband, after having surreptitiously removed some of his property, should obtain a divorce, and her husband should recover, an equitable action for the recovery of property wrongfully appropriated should be granted him.
(1) Where a slave belonging to a wife removes property of her husband by order of his mistress who intends to obtain a divorce, Pedius thinks that she is not guilty of theft, since she does not obtain
anything to his own advantage; nor is she held to have rendered- any aid to the slave committing the offence, as the woman herself did not commit it, although the slave should not obey his owner when ordered to commit a crime; but an action on the ground of property wrongfully appropriated will lie.
(2) Still, if a slave given as dowry steals from the husband, and the wife knew that he was dishonest, she must make good the entire loss to her husband; but if she was not aware of the bad character of the slave, she will then not be liable beyond the surrender of the slave by way of reparation.
(3) The action to recover property wrongfully appropriated is brought for reparation of the injury, even though the exaction of the dowry can only subsequently be demanded.
(4) If, where property has been wrongfully appropriated by his wife, the husband has been deprived of some advantage, this must be taken into consideration.
(5) Although this action arises from the commission of a crime, it still includes the claim for the property, and therefore is not prescribed after the expiration of a year, as is the case in a personal action for the recovery of stolen goods. Moreover, it will lie in favor of heirs.
(6) In this action, neither the husband nor the wife can obtain any benefit from insolvency, because it is based upon theft.
22. Julianus, Digest, Book XIX.
If a man brings an action against his wife on the ground of property wrongfully appropriated by her, and the valuation of the same is made in court, and the amount is paid, will she be entitled to bring suit to recover possession of the property, if she has lost it? A difficulty arises here, because she obtained possession by fraud. I answered that where anyone pays the amount of the appraisement of the property in court, he should be considered to occupy the position of a purchaser. Therefore, if the woman, against whom an action has been brought on the ground of property wrongfully appropriated, pays the appraised value of the same in court, she will be entitled to an exception against the husband, or his heir, if either should bring suit to recover the said property; and if she has lost possession of the same, a real action should be granted her.
(1) Where a woman wrongfully appropriated property in anticipation of the death of her husband, and he then dies, the heir can recover whatever had been appropriated by an action for the estate, or by one for the production of property in court.
23. Africanus, Questions, Book VIII.
Where marriage is re-established after a second divorce has taken place, it is held that a right of action continues to exist on account of property appropriated at the time of the first divorce, as well as on account of expenses incurred or donations made during the previous marriage.
24. Ulpianus, Rules, Book V.
The husband is entitled to an action for recovery as well as the personal action against his wife on the ground of property wrongfully appropriated by her, whether it belongs to him or is included in the dowry; and it is in his power to make use of whichever action he chooses.
25. Marcianus, Rules, Book III.
The action for property wrongfully appropriated is available where it was removed with the intention of obtaining a divorce, and the divorce actually followed; but if the wife appropriates the property of her husband during marriage, although this action will not lie, the husband can, nevertheless, bring a personal action to recover the said property; for, in accordance with the Law of Nations, I hold that property can always be recovered by a personal action from parties who hold possession of it unjustly.
26. Gaius, On the Provincial Edict, Book IV.
The action for property wrongfully appropriated is a personal one.
27. Papinianus, Opinions, Book IV.
The action for property wrongfully appropriated does not differ from that in which the woman is accused of the crime of adultery.
28. Paulus, Questions, Book VI.
Where a wife steals property belonging to her husband from a person to whom the former lent it, the latter will be entitled to an action for theft against her, although her husband can not bring such an action.
29. Tryphoninus, Disputations, Book XI.
The valuation of property wrongfully appropriated should be calculated with reference to the time when it was taken, for the woman is in reality guilty of theft, although she is punished with more leniency. For this reason property thus wrongfully appropriated cannot be acquired through usucaption by a bona fide possessor; but where it increases in value and is not returned, the appraisement will also be increased; as is the case in an action for the recovery of stolen property.
30. Papinianus, Questions, Book XL
Where an action is brought against a woman on the ground of property wrongfully appropriated after the marriage has been dissolved, the action is extinguished in case the marriage should be re-established.
TITLE III.
CONCERNING THE RECOGNITION AND MAINTENANCE OF CHILDREN, PARENTS, PATRONS, AND FREEDMEN.
1. Ulpianus, On the Edict, Book XXXIV.
The Decree of the Senate enacted with reference to the recognition of children is in two parts, one of which has reference to the recognition of children by their parents, and the other to those who substitute spurious offspring.
(1) The Decree permits the woman herself, or her father under whose control she is, or anyone who is directed by either of them, in case she believes herself to be pregnant, to notify her husband, or her father under whose control she is, within thirty days after the divorce; or to leave the notice at his residence if there is no opportunity for personal service.
(2) We should understand the term "residence" to mean the lodging of the husband, if he lives in a city, but if he does not, but resides in a country house, or in a provincial town, the place where the parties have established their domicile during marriage.
(3) The wife should merely notify the husband that she is pregnant by him. She does not give this notice in order that her husband may send guards to watch her, for it is sufficient for her to inform him that she is pregnant. The husband should then either send persons to watch her, or should notify her that she is not pregnant by him; and it is permissible for this notification to be made by the husband himself, or by another party in his name.
(4) The penalty of the husband, if he does not send persons to watch, or does not notify the woman that she is not pregnant by him, is that he shall be compelled to recognize the child; and if he should not do so, to be punished with extraordinary severity. Therefore, he should answer the notice, or it should be answered in his name, that the woman is not pregnant by him. If this is done, it will not be necessary for him to recognize the child, unless it is really his own.
(5) It should be remembered that the notice does not proceed from the husband, but from the woman.
(6) If, however, the husband should offer guards to watch his wife, and she should not allow this; or if she does not give him notice of her condition; or if she should give him notice, but not consent to accept the guards appointed by the court, the husband or his father is at liberty to refuse to acknowledge the child.
(7) Where a woman does not give notice of her pregnancy within thirty days, but does so afterwards, she should be heard after proper cause is shown.
(8) If, however, she should entirely neglect to give the notice, Julianus says that this does not in any way prejudice the child.
(9) We should understand the thirty days subsequent to the divorce to be continuous, and not available days.
(10) In the Nineteenth Book of the Digest by Julianus, the following nice point is suggested. If the woman should not notify her husband of her condition within thirty days, but should be delivered of a child within that period, will the Decree of the Senate apply? He says that, in this instance, the Plautian Decree of the Senate will not be applicable, because it was not considered to have reference to a child who was born within thirty days, for the Senate appointed the thirty days for the notification of the pregnancy. I think, however, that this would not in any way prejudice the child.
(11) Just as, on the other hand, if the husband, after receiving notice from his wife, should send guards, this would not cause any prejudice to himself. He will, therefore, be permitted to deny that the child is his, nor will it prejudice him, because he placed a watch over the woman.
This opinion is also stated by Marcellus in the Seventh Book of the Digest, for he says that if a party denies that a woman is his wife, or that she is pregnant by him, he can, without any prejudice to himself, very properly send persons to watch her, especially if he makes protest at the time that he does so.
(12) Julianus says in the Nineteenth Book of the Digest, that it is stated in the Decree of the Senate that if the woman should notify her husband that she had conceived by him, and he, after having been notified, should not send persons to watch or examine her, and does not declare in the presence of witnesses that she is not pregnant by him, he will be compelled to recognize the child when it is born; but it does not follow from this that if he says that the child is his, he must make it his heir if it was begotten by someone else. Still, he holds that when the case is heard in court, the admission of the father will establish a strong presumption in favor of the child.
(13) He also says that, on the other hand, where the woman, after a divorce has taken place, does not comply with what was prescribed by the Decree of the Senate, the father has the right not to acknowledge the child; and that it does not follow from this that, after the child is born, it cannot be declared to be his, but merely that the father will not be compelled to support it, if it should be proved to be his own offspring.
(14) Julianus also says that if a woman notifies her husband that she is pregnant, and he does not deny it, it must not be concluded from this that the child is his, although he can be compelled to support it. It would, however, be very unjust if, where a man has been absent for a long time, and having returned, finds his wife pregnant, and for this reason repudiates her, and he neglects to comply with any of the provisions of the Decree of the Senate, the child should be his heir.
(15) It is apparent from what has been said, that the child is in no way prejudiced, if the wife should fail to observe any of the provisions of the Decree of the Senate, when the child in fact belongs to her husband — and this not merely has reference to its rights, nor
indeed to its maintenance, according to a Rescript of the Divine Pius; or if the husband has neglected to do what is prescribed by the Decree of the Senate, he can certainly be compelled to support the child, but he can repudiate it.
(16) It is clear that, if, after the woman has notified her husband, he should deny that she is pregnant by him, even though he may not send persons to watch her, he cannot prevent an examination being made to ascertain whether the woman is pregnant by him, or not. If this case is brought into court, and a decision be rendered on the point as to whether or not the woman is pregnant by her husband, the child must be recognized by the husband, whether it belongs to him, or not.
2. Julianus, Digest, Book XIX.
This applies to all cases, and therefore the child will be related by blood to its brothers.
3. Ulpianus, On the Edict, Book XXXIV.
If, on the other hand, the judge should decide that the child does not belong to the husband, even though it is really his, it is settled that a decision of this kind is equivalent to law.
This opinion Marcellus approves in the Seventh Book of the Digest, and we make use of it at the present time.
(1) For the reason that the Plautian Decree of the Senate has reference to children born after a divorce, another Decree of the Senate was enacted during the reign of the Divine Hadrian, which prescribed that children born during marriage must be recognized by their parents.
(2) But what if a child should be born after the death of its father, and during the lifetime of its grandfather, under whose control it would be placed, if it should be proved that the said child is the issue of the son of the grandfather? It should be considered what must be held in this instance. The opinion should be adopted that the question of its recognition should be left to its grandfather.
(3) But what if, in this case, the question should arise whether the child was born during marriage, or subsequently? It must be said that proceedings should be taken in accordance with the Decree of the Senate for the determination of this point.
(4) And what should be done if it was denied that the woman was the wife of the alleged husband? Julianus informed Sextus Cæcilius Africanus that there was ground for a preliminary inquiry.
(5) It must be held that these Decrees of the Senate are not applicable after the death of the father, if there is no relative under whose control the child can be placed. What claim to the estate could a child in this instance assert? Could he make such a claim, whether he was begotten by the person whose estate he demands, or not? What Julianus wrote in the Nineteenth Book of the Digest is true to the extent that, if proceedings for the recognition of the child had been begun during the lifetime of the father, and the latter should die
before a decision was rendered, recourse must be had to the Carbonian Edict.
(6) These decrees of the Senate also have reference to children who are born their own heirs. The better opinion is, however, that they are not applicable where the child, whose recognition is in question, was not under the control of the party instituting the proceedings.
4. Paulus, Opinions, Book II.
Not only he who smothers a child is hold to kill it, but also he who abandons it, or denies it food, as well as he who exposes it in a public place for the purpose of exciting pity, which he himself does not feel.
5. Ulpianus, On the Duties of Consul, Book II.
Where anyone asks support of his children, or where children can be supported by their father, a judge should take cognizance of the matter.
(1) Should a father be compelled to support only such children as are under his control, or should he support those who are already emancipated, or who, for any other reason, have become independent, is a question for consideration. I think the better opinion is that even where the children are not under paternal control, they must be supported by their parents, and that, on the other hand, their parents should also be supported by them.
(2) Let us see whether we are obliged to support only our fathers, our paternal grandfathers, our paternal great-grandfathers and other relatives of the male sex; or whether we are obliged to support our mothers, and our other ascendants in the maternal line. The better opinion is, that in every instance, the judge should interpose for the purpose of giving relief to the necessities of some and the infirmities of others; and since this obligation is derived from justice, and from the attachment due to blood, the judge should carefully weigh the claims of each of the parties.
(3) It must be said that the same rule applies to the maintenance of children by their parents.
(4) Therefore we compel a mother to support her illegitimate children, and them to support her.
(5) The Divine Pius also intimates that a maternal grandfather is obliged to support his grandchildren.
(6) He also stated in a Rescript that a father must support his daughter, if it should be proved in court that he had actually begotten her.
(7) Where a son can support himself, the court should decide not to compel maintenance to be furnished him. Hence the Emperor Pius stated in a Rescript: "The competent judges and before whom you will appear, must order that you shall be supported by your father in proportion to his means; provided that you allege that you are an artisan, and that by reason of ill health, you cannot maintain yourself by your own labor."
(8) Where a father denies that a party asking for support is his son, and therefore contends that he should not furnish it; or where a son denies that an applicant for maintenance is his father, the judges must decide the case summarily, and if it is established that the petitioner is a son, or a father, they must then order him to be supported. If, however, this should not be proved, they shall not decide that maintenance shall be furnished.
(9) But it must be remembered that if the judges hold that support should be furnished, still, this does not prejudice the truth, for they do not decide that the party is a son, but merely that he should be supported. This the Divine Marcus also stated in a Rescript.
(10) If anyone should refuse to provide support, the judges must determine the amount to be furnished in proportion to his means, and if he still fails to provide it, he can be compelled to comply with the judgment by taking his property in execution and selling the same.
(11) The judge must also determine whether a relative or a father has any good reason for refusing to support his children. There is a rescript addressed to Trebatius Marinus which states that a father can properly refuse to support his son if the latter has informed against him.
(12) It is stated in certain rescripts that a father can be compelled by a judge not only to furnish provisions, but also all other necessaries to his children.
(13) Where a son has been emancipated before arriving at puberty, he can be compelled to support his father, if the latter is in poverty; for anyone would say with reason that it is most unjust for a father to remain in want, while his son was in prosperous circumstances.
(14) Where a mother who furnished provisions to her child, brings suit against its father, she should be heard under certain conditions; for the Divine Marcus stated in a Rescript addressed to Antonia Montana: "The judges will estimate how much shall be paid to you by the father of your daughter in proportion to the amount of necessary provisions which you have furnished her for her support; but you cannot obtain as much as you would have expended for your daughter through maternal affection, even if she had been driven away by her father."
(15) Filial affection requires that parents should be supported by a son who is in the military service, provided he has the means to do so.
(16) It is stated in a rescript that, although a parent should, according to the dictates of nature, be supported by his son, still the latter ought not to be required to pay his debts.
(17) There is also a rescript which states that the heirs of the son, if unwilling, are not compelled to furnish such assistance to their father that a son while living would provide him with through motives of filial duty, unless the father is in the greatest poverty.
(18) Judges are also accustomed to decide between patrons and freedmen, where the question of their maintenance arises. Therefore, if the patrons deny that the claimants are their freedmen, the judges must make inquiry, and if it is proved that they are their freedmen, then they must order them to be supported. The decree for support does not, however, prevent the freedman (if he denies that he is such) from contending for his rights against his patron.
(19) Support must be furnished by freedmen to their patrons who are in poverty in proportion to their means. If, however, the latter are able to support themselves, the authority of the judge need not be interposed.
(20) The question may be asked whether only patrons are to be supported, or whether their children must also be maintained. I think that, upon proper cause being shown, judges should decree that the children of patrons should also be supported, not indeed as readily as patrons, but sometimes; for freedmen should show reverence not only to their patrons but also to the children of the latter.
(21) The freedman of a woman is compelled to support her children.
(22) If anyone should desire to be supported by a freedman of his freedman, or by a slave whom he has manumitted by reason of a trust, or by one whom he has redeemed from slavery with his own money, he should not be heard. For, as Marcellus says, he should be compared with one who, by exacting a reward, loses thereby the rights he has in a freedman.
(23) If the son of his patron has accused the freedman of his father of a capital crime, he denies that the latter is required to support him.
(24) A freedwoman is also obliged to support her patron.
(25) An arbiter is usually appointed to decide with reference to the support of a patron, and he must ascertain the value of the resources of the freedman, in order that the amount of the maintenance may be determined, and this must be provided as long as the freedman is able to do so, and the patron requires it.
(26) Freedmen are compelled to furnish support for the father and mother of their patron, where the patron and his children are no longer living, if they are in need, and the freedmen have the means to do so.
6. Modestinus, Concerning Manumissions.
The patron, by refusing to furnish support at the request of his freedman, forfeits the privileges imposed in his favor upon the latter on account of his manumission, and he is punished by the loss of the estate of the freedman; but he is not required to furnish support, even if he is able to do so.
(1) A Constitution of the Emperor Commodus contains the following: "Where it is proved that a patron has been rudely treated by his freedman, or severely beaten by him, or abandoned while in poverty or while suffering from bodily illness; he must first be brought again
under the control of his patron, and compelled to render services to him as his master, and if he does not take warning by this proceeding, he shall be sold to a purchaser under the authority of a magistrate, and his price given to his patron".
7. The Same, Opinions, Book V.
If he who is alleged to have been the husband of a woman denies that the marriage was contracted, for the reason that he is ready to prove that she who claims to be his wife is a slave, he shall be compelled to support her children in the meantime; but if it should be established that she was a slave, he who was charged with their support will not be prejudiced on this account.
8. Marcellus, On the Lex Julia et Papia, Book I.
The children of our male children are under our care, but this is not the case with those descended from females; for it is evident that a child whom a daughter brings forth is under the care of her father, and not of her grandfather, unless the father is not living, or is in want.
9. Paulus, On the Right of Patronage.
Patrons and their children have no right to the property of their surviving freedmen, unless they prove to the court that they are so weak or poor that they should be assisted with monthly contributions of food by their freedmen. This rule has been established by many Imperial Constitutions.
TITLE IV.
CONCERNING THE EXAMINATION OF PREGNANT WOMEN,
AND THE PRECAUTIONS TO BE TAKEN WITH REFERENCE
TO THEIR DELIVERY.
1. Ulpianus, On the Edict, Book XXIV.
In the time of the Divine Brothers a husband appeared who stated that his wife was pregnant, but she denied it, and the Emperors having been consulted on the subject, addressed a Rescript to Valerius Priscianus, the Urban Prætor, in the following terms. "Rutilius Severus seems to ask for something extraordinary in applying for a custodian for his wife, who is divorced from him, and who asserts that she is not pregnant. Therefore, no one will be surprised if We also suggest a new plan and a remedy. If the husband persists in his demand, it will be most convenient for the house of a respectable woman to be chosen into which Domitia may go, and that three midwives, experienced in their profession and trustworthy, after having been selected by you, shall examine her. And if all of them, or only two, announce that she seems to be pregnant, then the woman must be persuaded to receive a custodian, just as if she herself had requested it. If she does not bring forth a child, her husband will know that he will incur dishonor, and that his reputation will be involved, and he will not unreasonably be held to
have contrived this in order to injure his wife. If, however, all of said women, or the majority of them, declare that the woman is not pregnant, there will be no reason for the appointment of a custodian."
(1) It is perfectly evident from this rescript that the Decrees of the Senate relating to the recognition of children will not apply, if the woman pretended that she was pregnant, or even denied that this was the case. Nor is this unreasonable, for the child is a part of the woman, or of her entrails, before it is born. After it is born, however, it is clear that the husband can, in accordance with his rights, by means of an interdict, demand that the child shall be produced in his presence, or that he shall be permitted by an extraordinary proceeding to remove it. Therefore the Emperor comes to his relief when it is necessary.
(2) In accordance with this rescript, a woman may be summoned before the Prætor and, having been interrogated as to whether she believes that she is pregnant, can be compelled to answer.
(3) What must be done in case she should not answer, or should not appear before the Prætor? Shall we apply the penalty fixed by the Decree of the Senate, namely, that the husband shall have the right not to acknowledge the child? But suppose that the husband is not content with this, and that he should prefer to be a father rather than be deprived of his son? Then the woman shall be compelled by the authority of the Prætor to come into court, and if she does come, to answer; and if she refuses, her property shall be taken in execution, and sold, or she shall be punished by a fine.
(4) But what if, having been interrogated, she should say that she is pregnant? The course prescribed by the Decree of the Senate must then be followed. If, however, she should deny that she is pregnant, then, in accordance with this rescript, the Prætor must summon midwives.
(5) It should be